Law School Outlines - Admin_Law_framework

Administrative Law Fall 2001 I. Constitutional Framework for Admin Law a. Con and Statutory Interpretation of Issues in the Delegation of Legislative Power to Admin Agencies i. Basic Principles 1. Legality – delegation is concerned w/whether Cong has created enough structure to make it possible to assess and/or control legality of the delegate’s conduct (controlling gov actors) 2. Political Accountability Doctrine a. More power granted to agency, more suspect the delegation b. Does good reason for delegation exist? c. How much guidance has Cong provided i. More important the power, more specific the guidance needed ii. Ct often assumes Cong will give away lots of power w/small amount of guidance d. Use – ct often narrows scope of delegation to find it does not violate this doctrine (used as tool, NOT conclusion) 3. Separation of Powers a. J exercised judicial rev over leg and exec b. Leg can impeach J’s and exec c. Leg delegates power to exec i. Art I, Sec 8 – Cong may make laws necessary and proper to carry out the laws d. Exec can veto Leg e. Independent Agencies (I/A) created by delegation of leg power to the exec and some judicial i. Some what protected from exec – removable only “for cause” ii. Thus leg and J powers also away from exec iii. Some argue, creates 4th branch and is change in con structure f. Agencies i. Only operate w/n scope of authority granted by Cong 1. Cong can w/draw delegation/authority through repeal of leg (law), but exec can veto ii. APA injects accountability 1. Makes regs that agency must go through, some are public proceedings ii. Industrial Union, AFL-CIO v. American Petroleum (Benzene Case) – Exceeding the Scope of Delegation 1. HOLDING – 2 interps (plurality) a. Agency exceeded scope of statutory authority i. Made reg w/o finding substantial risk of harm b. Agency acted w/n statutory authority, BUT Cong granted too much authority (Rehnquist) 2. OSHA made rule/law lowering permissible benzene exposure from 10ppm to 1ppm a. Sec of Labor did not make required threshold findings i. Standard being reasonably necessary & appropriate to remedy substantial risk of significant health impairment ii. Workplace is unsafe b. Reg was sweeping delegation of leg power i. Cannot delegate open-ended grant of power ii. EA did not require “risk free” only “safe” iii. Leg history supports idea that EA eliminate “significant risks of harm” iv. Only basis was the benzene probably carcinogen v. When Ct given choice btwn uncon grant of power, or not allowing grant which would be con – Ct would choose later b/c preserves statute iii. Case Law Development of Anti-Delegation Doctrine – See pg 3-4 of other outline iv. Chevron’s Spin on Anti-Delegation Doctrine 1. Concerning agency interp issues a. Questions: i. Was agency interp appropriate? ii. Reasonable to think Cong meant one thing over another? b. If unclear what Cong meant, agency can use any reasonable interp c. Ambiguous statutes are to be read as delegations d. Some issues to agency’s authority are for the agency itself to resolve v. Attacking a Delegation 1. Amount a. Total sum of delegation is too much b. Schechter i. Statute granted power to agency to make rules for “fair competition” ii. Ct unanimously viewed as excessive delegation c. Clinton v. NY – line-item veto i. Cong just giving too much power to Pres 2. Importance a. Power delegated is SO important or special that cannot be delegated OR only if subjected to certain guidelines b. Kent i. Statute gave Sec of State power/discretion to grant or deny passports ii. Affects civil liberties, too important to delegate c. Cong must be able to exercise the power in order to delegate 3. Intent a. Con “clear” statement to delegate – implied or expressed intent b. Preamble of EA may express limitation on agency power c. Read grant of authority in context of leg history i. Except some justices like Scalia don’t buy leg history argument ii. Fahey 1. upheld statute granting sweeping authority to bank regulators 2. grant of authority w/n leg history 4. Modern Limits a. If amount of delegation great, ask whether agency has particular expertise in area, does one agency need to wield all power? b. Cong cannot hand all power over to exec c. Does Cong lay down by leg act an intelligible principle to which the person or body authorized to act is directed to conform? 5. Emergency Justification a. Need to act quickly can be important i. If so, may allow more powers to be delegated b. Separation of Power Fundamentals i. Legislative Veto – uncon 1. laws delegating discretion to exec to do something but subject to leg veto 2. Chadha a. EA defines deportability, AG given power to suspend deportation, yet any one house of Cong can override AG decision b. Majority Opinion – Burger i. Veto affects deportees legal rts, duties & relations, thus law is required, in this case a single house veto is insufficient (one house was essentially legislative in purpose and effect) ii. Requirements for Cong action/law 1. bicameralism (passage of both houses) 2. presentment to the Pres 3. either Pres agrees or Cong overrides Pres veto c. Powell concur i. Viewed Cong action as judicial act, therefore uncon ii. Was trial by Cong, b/c looked to specific facts iii. No Due Process rt in trial 3. Basic Arguments Against Leg Veto a. Cong cannot delegate power to itself b. Cong’s function is to legislate, exec enforces, do not want too much power in one branch c. Cong can limit delegation, via guidelines, etc through EA 4. Inseparability – if leg veto invalid, what about the rest of statute? a. Argument for Inseparability – Client wants/needs statute struck i. Argue that Cong w/d not have passed the delegation w/o the veto, THUS if veto invalid, entire delegation/statute invalid 1. look at entire statute to see how veto provision is connected to statute 2. look to leg history for Cong’s intent 3. look to whether general inseparability clause, stating one way or other 4. if delegation of enormous power, unlikely Cong would have given up so much power w/o leg veto check b. Argument for Separability – Client wants/needs statute to stand i. General clause stating separable ii. Clause stating that each provision stands alone (although could be argued to be boilerplate) Kiss it Goodbye Rule – once Cong grants power, can’t take away w/o law iii. Leg history iv. Ct assumes in favor of separability ii. Appointments – Appointment Clause, Art II, §2(2) 1. 2 Tracks to appointment a. Officers of U.S. i. Pres shall nominate w/advice and consent of Senate (2/3 of Senate) b. Inferior Officers i. Cong may delegate appointment to Pres, Ct of Law, Heads of Dept, as they think proper (no need for advice or consent) 2. Thus question is one of whether position is an “Officer of US” or “inferior officer” 3. Buckley v. Valeo a. pres pro tempore of Senate and Speaker of House appointed members of FEC. Ct claims that officers of US exercising scope of authority of FEC should be appointed under Appointments Clause. If officer appointed by cong actually has no authority to effectuate exec decision, his appointment by cong may be legit but, if officer has authority that may influence exec function, position is uncon 4. Buckley sets test for determining that anybody who “exercises significant governmental duties under public law” is an “Officer of US” iii. Removal of Officers of US 1. Impeachment reserved for serious matters, but not considered exclusive removal provision 2. Myers – Officer of US a. Statute created position for Pres appointment, BUT Pres needed Cong’s approval to remove b. Uncon b/c Cong writing self in continuing role c. Argument for “At Will” Removal i. For Pres to “faithfully execute,” must have control over those working under him 3. Humphrey’s Executor – “For Cause” Removal a. changed default rule so that Cong may limit presidential removal powers by passing statute outlining reasons under which the pres can use them. Simply restricts scope of pres’ power to remove 4. Distinction btwn Myers & Humphrey’s is in nature of restriction. a. Myers – every time officer removed, pres needed congressional consent – OVERTURNED b. Humphrey’s – pres did not need any consent but could only exercise power if congressionally allowed -UPHELD 5. Bowsher a. In effort to cut deficit, Cong delegated to agency power to cut budget to fit target goals, Cong Budget Office (CBO), makes recommendations, Office of Management & Budget (OMB), makes recommendations, General Accounting Office (GAO), takes recommendations and cuts budget b. CBO – appointed and removable by Cong i. Ct finds con b/c merely advisory c. GAO – appointed by Pres w/advice/consent of Senate Kiss it Goodbye Rule again Kiss it Goodbye Rule again i. PROBLEM – Pres chooses from a list of 3 1. Qualifications okay 2. List of 3 is very limiting, Cong has written self into law as continuing decisionmaker (choosing the list when necessary) ii. Removal – Uncon – joint resolution of Cong, and Pres approval 1. Process is law making, which is uncon for removal d. Other Bowsher Problems i. Spending changes made w/o Cong’s advice ii. Enormous power delegated, maybe too much iii. Functions performed are significant and affect outside legal rts e. White’s Dissent i. Why are we upset with removal by law, more difficult process than impeachment – upholds spirit of con iv. Presidential Removal Powers 1. Cong cannot remove exec officers 2. Humphreys – Cong can through leg process limit pres removal to “for cause” a. BUT if “for cause” limitation would unduly interfere w/pres duties to faithfully execute, then person will be removable “at will” i. Typically 1. Officer of US – at will 2. Inferior Officers – for cause 3. Morrison – Removal of Independent Agency/Counsel a. Spec Div, after AG determines need for IC, composed of 3 judges, choose independent counsel b. Removal of IC i. AG can remove “for cause” ii. Spec Div terminates when need is over c. ISSUE – whether IC is “inferior” or “principle” officer i. Inferiority argument -Rehnquist 1. subject to removal by higher exec branch official 2. empowered to perform limited duties 3. limited jurisdiction 4. limited tenure d. Found to be Inferior Officer – thus Track 2 appointment (okay, although con of appointment could be argued) e. Con Standard for Removal – “at will” or “for cause” i. Since inferior officer, “for cause” removal restriction by Cong is con f. Scalia Dissenting – all exec officers should be removable “at will” v. Kiss it Goodbye Rule – Chadha, Buckley, Myers, Bowsher 1. Cong cannot maintain its check on everything once delegating authority 2. Cong cannot write itself into delegation as a continuing decision maker 3. Cong CAN a. Limit delegation via guidelines w/n EA i. Humphrey’s – Cong at outset made restrictions for removal, no continuing role b. Set reasonable qualification standards for inferior officers Kiss it Goodbye Rule again i. Reasonable qualifications related to the job ii. Qualifications not so selective as to narrow applicant pool to no choice at all 1. if too small applicant pool b/c qualifications, may be uncon II. Sources of Procedure a. General Framework i. Due Process (5th or 14th Amend) ii. Administrative Procedure Act (APA) iii. Court Required Procedure iv. Enabling Act (EA) b. Due Process i. Apply only in adjudication 1. Minn State Bd for Community Colleges v. Knight, held that DP is not denied if people are NOT heard when leg, r/m, etc is done 2. Londoner – general rule creates no rt to DP hearing, but when rule is applied to individual, depriving of life, liberty or property, individual is entitled to DP hearing 3. Bi-Metallic – when general statute enacted, sometimes people injured to ruin, BUT only rt to hearing AFTER rule made and applied to person a. When rule applies to more than a few, impractical to allow DP hearings b. Rts are protected via voting power – legislative accountability c. HOWEVER, even in r/m, when agency making “quasi-judicial” determination by which small number of people are exceptionally affected, DP may require additional proceedings ii. What interests count as life, liberty or property and are protected by DP hearing requirements? 1. THRESHOLD REQUIREMENTS a. MUST be a state action, b. which results in deprivation of life, liberty or property, c. due to inadequate procedures in an adjudication iii. Sliding Scale – the more at stake, the more available procedures iv. Property Rights 1. McGrath – expands scope of DP a. Case-by-case analysis b/c when gov injures someone in serious way, entitled to DP protections b. Judicial evaluation of the interest includes – manner in which interest was adversely affected; reason for doing it; available alternatives to procedure; protection implicit in office of functionary whose conduct is challenged; balance of hurt complained of and good accomplished 2. Cafeteria Workers – Access to Employment does NOT violate DP a. Denied access to employment b. DP not violated b/c haven’t deprived her of rt to work, just denied her access to job (on base) 3. Goldberg – Are welfare benefits property or liberty interests? YES a. Welfare recipient benefits terminated, not meeting requirements, only procedure is complaining to caseworker b. Ct finds DP violation i. Welfare benefits cannot be taken away w/o DP ii. Statutory entitlement gives basis for DP – property rt iii. Gov can repeal statute giving entitlement – terminating property rt 4. IF not yet possessing benefit – applying for it for first time and denied a. Rehnquist – No property interest, DP not violated b/c interest not as important as those who already have it b. Young – Yes, property interest, DP violated 5. Roth – Finds public employment as a property rt a. BUT must have legit claim of entitlement b. This case – NO property rt b/c position was NOT guaranteed to last longer than a year – not tenured c. Expectation of benefit does not create interest 6. Perry – Gov can create job entitlement interest via suggestion a. Not in K, but employee manual suggested job entitlement b. Manual created property interest in tenured job v. Liberty Interests 1. Wolff – criminal convictions allow states to validly contract liberty, then restore liberty via regs that create entitlements/liberty interest 2. Meachum – Change in prison conditions w/o hearing doesn’t violate DP a. DP does not entitle prisoner to a hearing when transferred to a maximum security prison from minimum security 3. Vitek – Rt to hearing prior to transfer from prison to mental health institute a. Some liberty interests are not w/n power of state to restrict w/o hearing b/c directly provided by con 4. Constantineau – Good name and reputation at stake, DP hearing needed a. Police posted notice forbidding person from buying liquor b. Hearing needed to whether he was actually a drunk 5. Paul v. Davis – Reputational interest? NO a. Davis placed on list of active shoplifters, posted by police b. Interest in reputation not property or liberty interest c. Recasts Constantieau as involving the property interest in buying alcohol which was impaired by postings, NOT reputational harm vi. Procedures Given under DP Hearing 1. 2 Types of DP Adjudication a. Normal b. Emergency 2. NORMAL a. Balancing Test: Procedure is generated via a balancing test: (1) what is at stake; (2) likelihood that procedure will provide more accurate facts i. Goal is to increase accuracy least Goss II (after Matthews, Loudermill, Goldberg II most procedure deprivation) Goss I (before deprivation), (prior to deprivation) procedure (Gray Panthers) Goldberg (after deprivation) (Civil Crim) b. Gray Panthers v. Schweiker – Telephone call to plead case i. deals w/medicare payments under $100 ii. get minimal DP, telephone call and chance to plead case over the phone c. Goss v. Lopez (Goss Hearing) – school expulsion case i. Statute uncon b/c education is statutorily created entitlement, deprivation of entitlement for 10 days is significant ii. Prior to Expulsion now required 1. Oral/written notice 2. Explanation of evidence against 3. Rt to tell side of story 4. No lawyer 5. No cross 6. No rt to confront accuser iii. Where student’s behavior creates immediate threat/disruption, school can remove first and provide opportunity for discussion immediately afterward d. Matthews v. Eldridge – S.S. benefits re: disability payments i. Weighing: 1. private interest 2. risk of erroneous deprivation 3. govs interest ii. This case: disability insurance, interest at stake not as compelling as in Goldberg, there are sources of temporary income available to recipient whose benefits are denied iii. Procedures post-termination hearing 1. benefits terminated w/o hearing 2. agency based decision on questionnaire and physician report 3. afforded rt to reconsideration involving evidentiary hearing before an ALJ e. Loudermill – Pre-termination Hearing i. State employee lied on app, as to drinking, drugs, felon, etc ii. UNCON for state to add stipulation providing that is suspected of violating any substantive conditions; (a) get no hearing, OR (b) get only a Goss style hearing iii. Uncon b/c once property interest conferred, it is accompanied by DP safeguards f. Goldberg – NEARLY FULL HEARING i. Termination of public assistance payments w/o opportunity to evidentiary hearing prior to termination is UNCON ii. Procedures prior to termination 1. timely and adequate notice 2. reasons for proposed termination 3. effective opportunity to defend by confronting witnesses 4. presentation of arguments and evidence orally g. Elements of Full Hearing i. timely and adequate notice ii. confronting adverse witnesses/cross iii. oral presentation of argument iv. disclosure of opposing evidence v. determination on the record vi. statement of reasons and E relied on vii. impartial decisionmaker 3. EMERGENCY a. Gov has compelling interest to do action w/o prior hearing b. Post-hearing may be applicable c. Gilbert – security guard indicted for drug possession, school demotes then fires i. Ct disagrees that had rt to Goss hearing prior to any action ii. Having indicted felon as security guard is compelling enough iii. Besides, arrest and indictment are procedure enough d. Decent amount of latitude for gov to qualify something as “emergency” e. Post-action hearing can be remedyless i. Ex: gov seizes food, food goes bad, sovereign immunity protects state govs from redress vii. Distinction Between R/M and Adjudication 1. Prospectivity a. Judicial inquiry investigates & enforces based on past or present facts b. Leg looks to future and changes existing conditions by making a new rule to be applied thereafter 2. Generality a. Adjudication in function of creating orders that apply to particular individuals or specifically defined situations b. Acts of leg generally establish rts and duties w/respect to people generally or classes of people defined but not enumerated 3. Nature of Facts a. Adjudication looks to specific sets of facts relevant to parties and transactions b. Rulemaking looks to more general facts relevant to policy making c. Administration Procedure Act (APA) i. Default rules that apply to all agencies post-work and future-work, UNLESS Cong opts out ii. Requires procedural rights for people to be heard in rulemaking process iii. Why procedure or not even more? 1. more opportunity to participate, giving more material to persuade agency 2. delay tactic 3. help preserve record which is reviewable and can use to argue the procedures were flawed, decision was unjustified, arbitrary and capricious iv. § 551 – Definitions 1. agency – each authority of US gov except Cong and cts 2. adjudications – agency process for the formulation of an order 3. order – whole or part of a final disposition of a matter other than rulemaking, including licensing 4. licensing – requesting to be able to do something that requires a license 5. rule – whole or part of an agency statement of general or particular designed to implement, interpret or prescribe law or policy 6. rulemaking – process for formulating, amending, or repealing a rule a. Types of Rules i. Substantive ii. Interpretive iii. Policy iv. Procedural v. § 552 – Public Information – Freedom of Info Act 1. (a)(1) – agencies must publish in Fed Register stuff described in (A)–(E) 2. (a)(1)(D) – all general rules must be published, BUT if not general? a. General rule CANNOT be used against someone until published 3. (a)(2) – available for public inspection a. (A) – opinions, orders of adjudications b. (B) – rules not published, thus NOT general rules c. (C) – administrative staff manuals/instructions that affect public vi. GENERAL FRAMEWORK 1. Informal a. Rulemaking b. Adjudication 2. Formal a. Rulemaking b. Adjudication 3. § 553 Informal Rulemaking a. Gives general notice and opportunity to participate in rulemaking via comment b. Limited to basic notice and written comments c. Notice – proposed rule must be published in Fed Register i. Does NOT apply to interpretive rules, general statements of policy, rules of agency organization, procedure or practice ii. Does NOT apply when agency finds that notice is impracticable, unnecessary, or contrary to public interest iii. Two types of Notice 1. includes terms & substance of contemplated rule 2. merely identifies subjects and issues involved iv. Either notice deemed adequate when it appraises interested parties of issues to be addressed in RM proceeding w/sufficient clarity and specificity to allow them to participate in a meaningful and informed manner v. Final rule NOT invalid (for lack of notice) if logical outgrowth of original proposal 1. need not be exact replica of proposed rule 2. if final rule deviates too sharply from proposal, affected parties deprived notice & opportunity to respond 3. QUESTION TO ASK: Would notice fairly appraise interested persons of subjects and issues of the rulemaking? 4. comments of other interested parties DO NOT satisfy agency’s obligation to provide notice 5. look to rule proposed and rule enacted – logical outgrowth? 6. lack of factor can lead to insufficient notice, BUT dropping a factor from final rule is logical outcome vi. Notice need NOT identify every precise proposal which agency may adopt vii. BUT rule INVALID if no notice given of ISSUE addressed by final rules 1. inadequate when issue addressed in general terms 2. inadequate when final rule changes a pre-existing agency practice which only mentioned in notice or proposed RM in order to place unrelated changes in overall reg scheme into proper context d. Comment – agency shall give interested persons an opportunity to participate in r/m through submission of written data, views, w/or w/o opportunity for oral argument i. NO oral testimony, cross exam of agency officials required ii. Data that agency relies on for final rule must be known to those wishing to participate, THUS meaningful comment iii. In order to get sufficient comment – agency must expose any data it will rely on for its decision 1. Nova Scotia – agency kept secret data it was using to make rule, thus interested parties had not chance to rebut iv. Allows for a type of written cross exam e. Entitled to have agency actually consider comments i. Prior to issuance of rule, agency must have actually considered comments submitted ii. f. Agency must give concise and general statement of rules’ basis and purpose i. Nova Scotia 1. FDA tried to enforce final rule upon NS 2. BUT when promulgating final rule, FDA considered data not w/n original proposal 3. FDA also did not respond to (1) alternative suggested by Dept of Interior (2) comment that requirements would not be economically feasible 4. ISSUE: What is an adequate record in informal RM? a. Need adequate record for meaningful judicial review b. Varies w/nature of administrative action c. Focal point for judicial review is record in existence d. Inconsistent w/purpose of RM to make rules on basis of inadequate data or data only known to agency e. Arbitrary and capricious for agency NOT to take into account all relevant factors when deciding f. If didn’t consider certain info b/c did not notify interested parties, FAILURE to consider all factors i. Suppression of meaningful comment is like rejecting comment all together g. Adequacy Under §553 i. Must answer ALL vital questions ii. Agency NOT expected to answer every item or opinion included in submissions to agency iii. BUT concise general statement must enable court to see what major issues of policy were ventilated by the proceedings and why agency reacted to them as it did iv. Agency must give explanation to why it made the rule it did ii. Portland Cement 1. agency must expose “centrally important data” to participants as prerequisite to the ability to make meaningful comment 2. INCONSISTENT w/purpose of RM to make rules on basis of inadequate data that is known only to agency 4. §554 – Informal Adjudication a. No procedures are mandated by the APA b. Seacoast presumes that all adjudications are formal c. Alternatives avenues for procedure i. Due Process – if show life, liberty, property at stake ii. EA iii. Pension Benefit 1. requires minimal requirements given in §555(e) a. applies to both informal rm and adjudication b. not entitled to know issues on which decision will turn nor materials that will be relied upon c. WILL receive brief statement of grounds for denial d. BUT brief statement is less than what §553 requires of informal rm 2. King v. US – required parole board give brief reasons for denial 3. §555(e) provides explanation even if not challenging iv. Overton Park – ALSO – Unwritten Requirement – if and when case will be reviewed, ct will require an explanation in order to conduct proper review, if no explanation, then agency may be crossed to provide explanation, THUS agency had better provide written explanation of final rule to avoid being crossed on judicial review 5. §§ 556-557 Formal Rulemaking & Adjudication a. Similar to civil trial – decisionmaker can only consider E properly entered into evidentiary record b. RM, determining claims for money/benefits, applicants for initial licenses – Agency MAY (when party not prejudiced) adopt procedures for submission of all or part of E in written form c. §557(c) – parties entitled opportunity to submit proposed findings and conclusions and supporting reasons – Record MUST i. show ruling on each finding and conclusions presented ii. include statement of findings, conclusions, reasons, basis iii. include statement of the rule or order (conclusion of decisionmaker) d. §§556(d)-557(d) – interested party cannot introduce ex-parte E to the decisionmaker and decisionmaker cannot seek info outside of record i. proponent of rule or order has burden of proof (agency) ii. parties can submit E, rebuttal E, and conduct cross-exam 1. agency may require all in written for if r/m (see above) 2. agency may exclude irrelevant, immaterial or repetitive E e. Formal Adjudication i. Required to be “on the record” if statute requires ii. Licenses – longer possessing license, more likely one will be hurt by having it denied or revoked, THUS greater chance at a “hearing” than one who is simply applying for a license for the first time 6. §559 – None of the provisions of the APA limit or repeal additional requirements imposed by statute or otherwise recognized by law a. EA can give more procedure 7. WHEN is RM Formal or Informal? a. Florida East Coast R.R. – When rules are required by statute (EA) to be made ON THE RECORD AFTER OPPORTUNITY for AGENCY HEARING, §§ 556 –557 apply (FORMAL RULEMAKING) i. ICC made rule that RR’s sought to challenge ii. Did not permit RR’s to provide oral testimony during RM iii. Statute authorized ICC to act “after hearing,” BUT NOT enough to require formal RM, language MUST require a rule be made “on the record” after opportunity for agency hearing iv. What then does “hearing” mean 1. RR argued that procedures here did not meet hearing requirement of statute 2. meaning of “hearing” depends on context RM or Adjudication 3. when dealing w/substantive grants of authority after APA – look to APA for meaning of “hearing” a. does not mean oral or cross exam E b. this case, hearing req of statute was met b. Florida’s Application i. Focus on language and NOT intent ii. Requires language be very close to APA iii. Few statutes specify “on the record,” so vast majority of RM will be informal (Rehnquist wants to do away w/formal RM) c. Formal v. Informal i. informal – only requires notes and comments ii. formal – requires courtroom like procedures 1. REQUIRE MAGIC WORDS to be formal d. “on the record after opportunity for an agency hearing” e. POWERFUL leg history in context may induce formal RM i. Scalia, Kennedy, Rehnquist would not prescribe 8. When is an Adjudication Formal or Informal? a. Seacoast – PSCO seeking permit to discharge heated water, EPA allows permit when operator shows standards have been met after opportunity for public hearing (EA does not say “on the record”) i. Adjudication – b/c licensing is always adjudication (applies to specific person), EPA needs to make specific factual finds about effects of discharge from specific point source, not general policy ii. Procedures Given 1. non-adjudicatory hearing by ALJ 2. record went to regional admin who rejected app for permit 3. new admin appointed who convened panel of scientists to evaluate E and make recommendations 4. PSCO submits info giving other parties chance to comment on PSCO submissions iii. ISSUE: What type of adjudicatory hearing did Cong intend? 1. seriousness of impact on private rts leans toward formal 2. adversarial hearings helpful in assuring reasoned decision and meaningful judicial review – especially since specific rts iv. presumption that unless EA says otherwise, adjudicatory hearing subject to judicial review MUST be on the record – FORMAL 1. in other words – when “hearing” presumed FORMAL 2. intent matters more than language – UNLIKE RM 3. interest at stake must be “reasonably important” 4. cross-exam not required if can get full disclosure of fact otherwise §556(d) 5. EA requires public hearing, written comments NOT public hearing – violation of EA considered harmless error b. Chemical Waste Mgmt – statute provided for “public hearing” which was interpreted to mean “formal” in one section and “informal” in another section of same statute i. Cong requires “hearing” to have consistent meaning throughout ii. Follows Chevron analysis 1. was statute silent or ambiguous w/respect to issue? YES 2. Ct MUST defer to agency construction so long as reasonable 3. THUS agencies have much power in choosing whether hearing is FORMAL or INFORMAL 4. NO MAGIC WORD REQUIREMENT iii. ct rejected argument that previous agency use of “formal” proceedings applied NOW – current agency never adopted view that “public hearing” meant “formal” iv. leg history NOT specific enough to support conclusion that they wanted “formal” proceedings c. NOW – 3 Approaches i. Some cts (Florida RR) may adhere ONLY to magic words approach (BUT if MAGIC WORDS ALL Cts WOULD GIVE FORMAL) 1. require “on the record after opportunity for an agency hearing” in order for FORMAL ADJUDICATION ii. Some cts. (Seacoast) interp “hearing” to require FORMAL HEARING iii. Some cts. (Chemical Waste) will defer to agency’s interp of EA, allowing agency to define whether “hearing” means formal or informal d. Court Required Procedure i. Vermont Yankee v. NRDC – licensing rules of nuclear plant applied to VY adjudication, BUT the rules weren’t completely clear as to waste removal, thus agency did not consider waste removal, the environmentalist go nuts, agency then adopts rules to consider waste removal, but only superficial, no real consideration, environmentalists convince DC Circuit to make substantial rules THUS adjudication DC Circuit Rules 1. ISSUE: Can Cts create rules that go beyond what DP, APA, or EA require? NO 2. Why can’t Cts institute rules (reasonsing) a. Judicial review would be unpredictable if cts have discretion to determine whether agency proceeding were enough in each factual situation b. Agencies would adopt full adjudicatory procedures to avoid threat of reversal c. Ct is supposed to review on basis of record produced, NOT on info available to agency at time it decided how to structure proceedings d. Sort of review fundamentally misconceives nature of the standard for judicial review or agency rule ii. Pension Benefit – VY rule also applies to informal adjudications e. Enabling Act i. APA merely default rule if EA does not speak to issue of procedures ii. E/A may have wording that requires hearing, but if not then APA is default iii. 3 Approaches 1. Regular statutory interp – intention of legislature (leg history) 2. Regular statutory interp BUT words count 3. Magic Words Approach – Florida East Coast R.R. a. Either “on the record after opportunity for an agency hearing” OR synonymous words b. Leg history/intent? i. Rehnquist doesn’t believe sufficient, need magic words iv. HOWEVER, APA enacted in 1946, so EA’s prior to ’46 couldn’t possibly have magic words 1. Pre-’46 EA’s a. Give traditional hearings i. Includes cross-exam 2. Post-’46 EA’s a. Give narrowest definition of hearing, UNLESS magic words included requiring a formal hearing III. Evading Procedural Requirements a. Exemptions to Needing Notes & Comment i. §553(a) – military, foreign affairs, agency management ii. §553(b) – interpretive rules, policy statements, rule of procedure, good cause (emergency, announcing rule would let parties take evasive action) b. No Notice nor Comment is required for policy statements, and interpretive and procedural rules i. §553(b)(A) – NOTICE and COMMENT does NOT apply to interpretive rules, general statements or policy, or rules of agency organization, procedure or practice ii. HOWEVER, IF they have legal effect substantive rules and dealt w/as a “rule” iii. General Statements of Policy 1. Must be TENTATIVE – statements issued by an agency to advise the public prospectively of the manner in which agency proposes to exercise discretionary power 2. policy statements look like rules BUT are tentative 3. Pacific Gas – P’s challenged “statement of policy” setting forth priority schedules to be followed by pipeline companies, argued order was in fact a substantive rule that should have been created pursuant to §553 notice and comment procedures a. Substantive rule v. General Policy Statement i. Substantive rule – binding, establishes standard of conduct which has force of law ii. Policy Statement – not determinative of issues or right to which it is addressed, area is open to challenge, agency must reconsider policy every time challenged (BUT who is sure agency really reconsiders) 1. Problem of Secret Policy Statement – forcing to consider causes agency to have a “secret policy” so need not deal w/abundance of challenges/reconsideration iii. Characterization is crucial b. Sub Rule v. General Policy Statement w/Regards to Judicial Review i. Sub Rule – Chevron deference to agency ii. Policy Statement – b/c no notes & comment from interested public, stronger a&c standard, less deferential to stat interp iv. Interpretive Rules 1. AMC v. Mine Safety – non-legislative rule’s capacity to have binding effect limited in practice by judicial review a. If agency believes cts will fault them for not entertaining arguments of persons contesting a rule, agency more likely to listen to them b. When agency must defend view under Step 2 of Chevron (A&C), disregard of significant policy arguments may weigh against reasonability c. Cases turn on basis whether purported interpretative rule has legal effect – Determining Legal Effect i. If NO rule – would there be adequate legislative basis for enforcement action for other agency action, conferring benefits or ensuring performance of duties ii. Has agency published rules in Code of Fed Regs iii. Has agency explicitly invoked its general legislative authority iv. Does rule effectively amend a prior legislative rule v. IF above are YES – then it is legislative/sub rule NOT interpretive 2. Community Nutrition v. Young – FDA did not follow notes and comment procedure BUT adopted what it thought interpretive rule, rule seemed untentative to food producers, needed license to violate guideline, guideline was hard and fast number, but if interpretive it need be reconsidered every time a license was applied for a. ISSUE: Is the guideline a substantive or interpretive rule? i. Agency had sufficiently bound itself for the action level to constitute substantive, legislative rule 1. A spoke of action levels as BINDING norms – requiring permits to exceed 2. A committed self NOT to prosecute those below limit 3. If A did sue to enforce, had to prove corn was adulterated w/n meaning of reg b. Even if looks tentative, IF applied hard and fast, then argued to have effect of rule 3. Interpretive Rules -Characteristics a. Rules implicit in statute b. Agency actually reconsiders when challenged c. Agency has choice as to how to interpret EA d. Defined in terms of process e. Cannot be a policy statement unless tentative provision f. Need to interpret in reasonable manner v. Attacking Policy Statement and Interpretive Rules 1. Law is injurious to client w/o client having chance for notice and comment 2. Say it’s a new law never imposed before 3. Agency never actually reconsidered a challenge to law 4. Say lawmaking and agency binding (hard and fast) itself and should used RM procedures c. Using Adjudication to Make Rules i. Chenery II – Cong gave SEC power to oversee breakup of large public utility company, statute allowed companies to submit voluntary plans which SEC would review to determine whether they were “fair and equitable,” SEC refused to approve Chenery’s plan, in first case (Chenery I) SEC based decision on judicial notion of fiduciary, ct said SEC wrong and remanded 1. In Chenery II – Obligation of reviewing ct a. Judge validity of agency action solely on ground invoked by agency b. Cannot substitute own reasons for why agency’s decision may be valid c. A’s rationale must be set forth w/sufficient clarity to be understandable, ct cannot guess as to agency’s reasoning 2. SEC arrives to same conclusion as Chenery I, BUT different reasoning a. SEC says violation of “fair and equitable” would be anything that would erode confidence in the securities market (insiders were trading during the reorganization) 3. ISSUE: Whether the agency created a rule that sometimes insiders cannot trade during reorganization? And if it was a rule, can it be made during and adjudication? a. Ct said it was a RULE and that it can be MADE during ADJUDICATION b. A’s should create rules via RM, BUT rigid requirement would make administrative process inflexible and incapable of dealing w/specialized problems that may arise i. Instances when Rule can be created at Adjudication 1. A might not have foreseen problem 2. problem may need be resolved w/o general rule 3. A may not have sufficient experience to make tentative judgment into hard and fast rule 4. problem may be so specialized that it does not fit into boundaries of general rule 4. retroactivity of rule may be factor to consider – if harm done by result contrary to statutory design is less than ill effect of the retroactive application 5. Attacking Rule Created during Adjudication a. Apply abuse of discretion – not great argument ii. Bell Aerospace II 1. reiterates Chenery rule in post-APA world a. A has discretion to decide in first instance whether RM or ADJ will be used to make new rule 2. may be situation where A’s reliance on ADJ would amount to abuse of discretion or violation of APA iii. Chenery II & Bell Aerospace II 1. 2 Arguments against ADJ rule and for §553 RM a. adjudicated rule has large scale affect w/o allowing enough interested parties to comment b. has a seriously damaging retroactive affect d. General Rules Trumping Litigation/Procedure i. Heckler v. Campbell – disability determination case, Campbell wanted to present fullbllow case as to why she was disabled and could not perform other jobs, agency applied her situation to a grid previously created and found her to NOT BE DISABLED, thus terminating her disability payments 1. Pre-Grid – Campbell would have received a case-by-case determination a. determination of her characteristics b. determination of the jobs she would or wouldn’t be suited for 2. Post-Grid – Campbell received a hearing on characteristics of disability BUT no presentation as to jobs she was suitable for, rather after narrowly defined characteristics figured, agency looked to grid to determine 3. Rationale for Grid – (1) efficiency; (2) uniformity 4. HOLDING – so long as rule/grid is reasonable, general rule will cover area, and P cannot litigate issue 5. Attacking the Holding – REASONABLENESS a. Arbitrary classification – equal protection attack i. BUT will probably get rational basis scrutiny which is presumptively valid b. Statutory language i. Statute did not provide authority 1. too broad a. not enough factors considered 2. too narrow ii. Cong never intended for such a crude creation of rules IV. Getting an Agency to Enforce its Rules & Whether Judicial Review a. Heckler v. Chaney – poison not approved as lethal injection substance, prisoners trying to get agency to enforce rule upon state who will be using lethal injection poison on them i. Black Letter Law – Presumption against judicial review of agency decision to enforce 1. agency in better position to determine balancing between resources and time ii. prisoners had no DP rts b/c FDA’s failure to enforce was not harm prisoners seeking review of, rather prisoners life interest is being deprived by the state, NOT the FDA iii. some states require agency to take action – Dunlop 1. then ct will review, works against presumption iv. FN2 – case-after-case of non-enforcement leads to development of rule/policy to not enforce, this may be reviewable 1. leaves open notion that when general policy is adopted, may be reviewable V. Forcing an Agency to Make a Rule a. Farmworker Justice Fund – party trying to make agency to make a rule i. SC has not ruled on, only DC Circuit ii. Refusal to make, amend or modify a rule 1. Ct said NOT committed to agency discretion, thus taking away judicial review exclusion of §701(a)(2) 2. THUS Judicial Review to make a rule is available although no rule was made in this case, still very much up to the agency VI. Judicial Review a. Hurdles to Review i. APA Overview 1. §701 – No rt to sue IF a. EA precludes judicial review b. agency action is committed to agency discretion by law HYPO: Cong gives A power to determine life insurance, agency bases coverage on ONLY 2 indicators of health (1) age; (2) % of body fat -statutory language argument works b/c too broad of a test, not enough factors considered (blood pressure, etc.) OR crude creation argument 2. §702 – Person suffering legal wrong b/c of agency action or adversely affected or aggrieved by agency action w/n meaning of relevant statute is entitled to judicial review 3. §703 – Form and Venue Proceeding a. statute can specify court where review will be had b. can be heard by any court of competent jurisdiction c. begins in district court – fed question jurisdiction 4. §704 – Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a ct subject to judicial review 5. §705 – Agency, or reviewing ct, can postpone effective date of action until judicial determination ii. Standing 1. Is there injury in fact? a. taking of money, liberty, threat of life, actions affecting business adversely, aesthetic, recreational as well as economic interests b. NOT abstract interest in having laws enforced, person who is bringing action is affected in a relatively concrete way 2. Zone of Interest a. Camp – statute designed to protect public interest by preventing banks from moving their competitive power into another realm i. P’s do not need to be in the zone, ONLY need to be arguably w/n zone of interest (have vested interest in suit) b. Air Courier – postal workers challenge rule allowing private carriers to participate in international mail delivery i. Argued that Post Office partly created to give jobs, this rule takes jobs away ii. Ct said NO STANDING, jobs was NOT the interest of Post Office’s creation, thus not w/n zone of interest iii. Have to intended beneficiary NOT and incidental one c. Clarke i. When trying to determine who falls w/n zone of interest created by Cong, cts not limited to looking solely at statute under which P’s sue, may consider any provision that helps to understand Cong’s overall purpose in enacting relevant legislation ii. Zone of interest test not meant to be particularly demanding iii. Preclusion 1. Expressed Preclusion a. look to specific language of statute to see if Cong specifically names a class as NOT being entitled to review b. review will be precluded UNLESS a constitutional interest is implicated 2. Implied Preclusion a. not favored – if interest is strong, ct will generally NOT find implied preclusion b. Factors to consider: i. Strength of P’s interest ii. Structure of statute iii. Statutory language – does context suggest judicial review would frustrate cong intent iv. Statutory objectives v. Legislative history vi. Are there enough other people w/sufficient interests to bring action to protect your client’s rts? 3. Block v. CNI – statute provided specific mechanism of review for dairy handlers and required them to exhaust administrative review before getting judicial review a. implicitly precluded consumers from review by statute i. General purpose alluded to consumer interest ii. Inclusion of dairyhandlers and not consumers indicates that consumer groups and CNI were specifically precluded b. cts will not normally draw negative inferences from a statute providing judicial review for one or more groups c. BUT b/c provided administrative remedies be exhausted i. Consumers would not be subject to that requirement if had standing ii. Allowing consumer review would frustrate purpose of statute iv. Ripeness 1. Abbott Labs a. When rule has immediate affects on you, CAN challenge it before it is even applied to you b. Where rule will cause you injury regardless of whether you obey i. Disobeying would be civl or crim penalty ii. Obeying would cost money v. Committed to Agency Discretion (CAD) 1. Heckler v. Chaney a. Decision of agency NOT to undertake enforcement action is committed to agency discretion (generally absolute discretion) i. Decision not to enforce involves complicated balancing of many factors (resources, time, etc) that are w/n agency’s range of expertise ii. Usually agency cannot enforce every violation iii. Similarities w/prosecutorial discretion b. CAD applies in rare instances where statutes drawn in such broad terms that there is no law to applies c. Only presumptively unreviewable – presumption may be rebutted where EA statute provides guidelines for agency to follow in exercising enforcement powers d. Areas which courts may review agency refusal to enforce i. A refuses to institute proceedings solely on belief that it lacks juris ii. Situation where A has consciously and expressly adopted a general policy so extreme as to amount to an abdication of its statutory responsibilities e. Seems to reflect more of a feeling that Cong would feel this sort of decision is unsuited for judicial resolution 2. Webster v. Doe – ct decides that decision of director of CIA to discharge certain employee under National Security Act is CAD and unreviewable a. Maybe Cong did not want judicial oversight I these claims i. Want director to be able to fire w/freedom ii. Difficult to quantify “gut feelings” about people and such in sensitive area iii. Having cts engage in judicial review would do more harm than good 3. American Horse Protection – refusal to bring RM proceeding is CAD in way that refusal to enforce is a. Review available under extremely limited highly deferential scope of review b. There are enough differences btwn the two decisions i. Many more enforcement decisions are made than RM decisions ii. Enforcement decisions often involve specific facts that cts are not apt to second guess, while RM involves larger policy issues b. Scope of Judicial Review §706 – decide relevant questions of law, interp con and statutory provisions, determine the meaning or applicability of the terms of agency action i. The Court Shall: 1. compel agency action unlawfully withheld or unreasonably denied a. BUT §701 gives agency discretion, so ct NOT completely controlling to compel 2. hold unlawful and set aside agency action, findings, and conclusions found to be a. arbitrary and capricious, in abuse of discretion, or otherwise NOT in accordance w/law i. Catch-all provision ii. used for reviewing factual conclusions iii. can be used when structure of inquiry was NOT adequate, agency did not explore aspect of problem they should have iv. used to examine reasons given by agency for decision v. EX: 1. agency considers relevant factors, BUT not taking careful time in considering, poor exploration of factors b. contrary to constitutional right, power, privilege or immunity i. allows for invocation of 1. due process 2. delegation 3. fundamental rts/equal protection 4. appointment/removal attacks c. in excess of statutory jurisdiction, authority, limitation, short of statutory right i. agency is taking TOO much action, outside jurisdictional authority ii. if agency misinterpreted statute, ct can destroy agency action iii. in light of Chevron ct will defer to agency interp iv. EX: 1. interp statute wrong and thus NOT considering proper factors d. without observance of procedure required by law i. failure to conform w/APA mandatory procedures ii. failure to follow additional procedures specified by EA iii. due process if adjudication threatening life, liberty or property e. unsupported by substantial evidence i. review of factual conclusions in formal proceedings ONLY f. unwarranted by facts to the extent that facts are subject to trial de novo by reviewing ct i. reviewing cts don’t generally conduct de novo review, rather will remand if reviewing ct finds fact finding inadequate ii. RARELY ever applies ii. Substantial Evidence Test 1. Association of Data Processing Service – review of on-the-record adjudication and informal RM a. EA – finding of fact is conclusive if supported by substantial evidence b. Proper Standard of Review? i. In context of factual support – substantial evidence and arbitrary and capricious are the same c. Distinction btwn a/c and subst E are semantic i. Distinctive function of substantial E requires it be w/n record of closed-record proceedings ii. Informal proceedings – a/c determined on basis of what decisionmaker had in front of him when he acted 1. possible that crucial material not shown or known by private parties in proceeding 2. Universal Camera v. NLRB – decision by NLRB that supervisory employee had been fired b/c represented union position before the board a. Substantial evidence standard MUST take into account whatever in the record fairly detracts from its weight i. Requirement requires WHOLE record be considered ii. Does NOT mean ct can displace agency’s choice btwn to conflicting views b. PURPOSE: Cong was deliberate in choosing the substantial evidence standard i. Frees ct from time consuming and difficult task of weighting E ii. Gives proper respect to expertise of agency iii. Helps promote uniform application of statute c. Judicial Review of Factual Record in Informal Agency Action (Informal Adjudication) i. Overton Park v. Volpe – citizens challenging Sec of Trans authorizing fed funds to be spent for constructing highway through local parkland, lower ct adjudication was nonadjudicative (quasi-legislative) thus informal adjudication 1. Procedure a. EA has very little procedure – local hearing to inform community b. APA has virtually no procedure for informal adjudication c. SC does NOT think this scant procedure was sufficient i. THUS at agency level – little procedure ii. BUT at judicial review level – more procedure 2. Entitled to Review b/c: a. NO indication of Cong’s intent to preclude judicial review b. NOT committed to agency discretion (law does apply) c. STANDING i. Prior to 60’s Overton Park community had no property interest, merely general grievance ii. BUT since 60’s, ZONE OF INTEREST DOCTRINE, give community real interest/standing 3. PROBLEMS a. Approval of funds NOT accompanied by statement of factual findings, NO indication why Sec believed there were no feasible alternatives b. EA provided that Sec CANNOT approve project using this land UNLESS “No feasible alternative” 4. Applicable Standard of Review a. NOT substantial evidence – only applicable to formal RM and adjudication b. NO trial de novo, only applicable when i. Agency action is adjudicatory in nature and inadequate factfinding ii. Agency action was non-adjudicatory, quasi-legislative in nature c. Generally applicable standards of 706 require review ct to engage in substantial inquiry 5. THUS review entails a look to a&c, abuse of discretion, or otherwise NOT in accordance w/law a. Ct considers whether decisionmaker was based on consideration of relevant factors & whether clear error of judgment b. Absence of formal findings does NOT mean remand i. NO formal findings required b/c informal adjud c. Informal proceedings: i. A record does exist – everything decisionmaker used to come to decision ii. No requirement of contemporaneous explanation, BUT reviewing ct will need one, so Overton Park results as follows: 6. RESULT of Overton Park a. if and when case will be reviewed, ct will require an explanation in order to conduct proper review, if no explanation, then agency may be crossed to provide explanation, THUS agency had better provide written explanation of final rule to avoid being crossed on judicial review b. “good faith record of explanation” c. Sec entitled to presumption that decision was correct, BUT not a shield from probing review d. Changes Overton Causes i. Prior to Overton 1. no admin record – get de novo review 2. explanation received was whatever agency wanted to give 3. weakest version of rational basis test ii. Post Overton 1. does away w/de novo review 2. looks at evidence at the time and decides whether its supports the decision ii. Pension Benefit v. LTVC – 1. HOLDING – Overton Park requirement of explanation for decision does not violate VY (not allowing Cts to create and require additional procedure) 2. Suggests that 706(2) imposes a general procedural requirement by requiring that an agency take whatever steps it needs to provide an explanation that will enable the court to evaluate that agency’s rationale at time of decision a. Explanation NOT procedure, merely explaining self iii. Camp v. Pitts 1. HOLDING – inadequate explanation of decision is NOT a deficiency in fact finding procedures requiring de novo review, RATHER may be a violation of a&c a. In applying standard, focal point for judicial review is admin record in existence, not some new record made by review ct b. If judicial review frustrated by inadequate explanation of action remedy is to obtain affidavits or testimony from agency c. If contemporaneous explanation, validity of action must stand or fall on propriety of that finding judged by appropriate standard of review iv. State Farm (Airbags case) 1. did NHTSA act a&c in revoking passive restraint requirement 2. scope of judicial review -informal RM – a&c a. rescission or modifications of standard subject to same test b. agency changing course by rescinding rule, obligated to supply reasoned analysis for the change beyond that which is required when agency decides NOT to act c. to make change – agency must examine relevant data and articulate a satisfactory explanation for its action including rational connection btwn facts found and the choice made 3. a&c Test a. relied on factors Cong did not intend it to consider i. failure to consider significant factor at all is fatal b. entirely failed to consider important aspect of the problem i. does NOT require agency to consider all policy alternatives but at least the reasonable ones c. offered explanation for decision that runs contrary to the E before agency d. so implausible that it could NOT be ascribed to difference in view or the product of agency expertise 4. This Case a. agency’s decision found a&c b/c did not consider the very reasonable alternative of an airbag only requirement b. ALSO agency too quick to dismiss safety benefits of auto seatbelts i. Uncertainty was sufficient reason to decline issuing a rule or revoke ii. But need be supported by record and reasonably explained, can’t simply cite “substantial uncertainty” iii. Must explain E available and offer rational connection btwn facts and choice made d. Judicial Review of Questions of Law i. Chevron v. NRDC – Amended Clean Air Act, required certain states to establish permit program regulating new or modified major stationary sources of pollution 1. ISSUE: Statutory interpretation of “stationary source” a. Bubble or stack-by-stack definition? 2. SUBISSUE #1: Whether Cong spoke to precise question at issue a. If Cong clearly spoke to question, ct & agency MUST follow i. If agency action inconsistent – must be struck down ii. If agency action consistent – can’t be struck down on this ground iii. Ways Cong may speak clearly to issue in statute 1. explicit text of statute 2. common reading sense 3. text tools a. cannons/concepts of stat interp i. including one item may mean excluding all other items b. dictionaries 4. structure of statute a. placement of things may have a bearing 5. web of related statutes a. definitions, inconsistency, consistency, etc. 6. leg history (Scalia, Kennedy won’t look at) 7. prudential arguments a. what are the consequences of reading one way or another 3. SUBISSUE #2: Judge does not think Cong has spoke to precise question, THUS when statute is silent or ambiguous w/respect to specific issue, is this interp a permissible construction of the statute? a. PROBLEMS – what is permissible? Reasonable? i. Analogous to a&c tests, getting away from stat interp 4. WHAT IS Chevron DOCTRINE? a. Applied as to require enormous deference to agency interp of statute b. Ct wants to make sure that interp was carefully considered before giving deference (that is why policy statements, informal adjud, etc may not fall w/n) THUS formal RM & adjud fall w/n c. RULES 2 Step Test of Chevron (although Young believes both steps collapse into one) i. If explicit delegation to fill gap w/rules, delegation given controlling weight 1. UNLESS manifestly contrary to statute 2. or a&c ii. If implicit delegation (statute silent or ambig to precise question), ct may NOT substitute own interp so long as agency’s determination is reasonable interp 1. reasonableness – look to text of statute, other related statutes, structure of statute, leg history (possibly) 2. unless a&c ii. To What Does Chevron Apply? 1. ONLY applied to interps (formal RM, adjud) where agency at highest level signs off on a. Does not include policy statements b. Excludes rules made by low level agency employees iii. Why the Chevron Doctrine? Scalia 1. when statute ambiguous to precise law, why give agency implied authority? a. Ambiguity = delegation i. Political reasons for having default rule -accountability ii. Agencies have the expertise to realize ambiguity b. Separation of Powers i. Agency/exec interpreting Cong’s words seems w/n notion of sep of powers c. Unelected judge v. agency as arm of exec i. Thinks more accountability w/n agency than fed judge d. Uniformity i. Agency definition will be more uniform at least for 4 yrs ii. Whereas every ct may interp different ways iv. Arguing Against Chevron 1. look to: text, structure, leg history (although may not matter), related statutes; in light of all this, agency has made a mistake 2. attack Step 1, if arguing against Chevron, sure it applies, but not carefully considered interp e. General Statements of Policy and Interpretive Rules i. 2 Issues 1. Chevron Deference 2. A&C Standard ii. Pacific Gas 1. suggests that deference applies to rules BUT NOT to policy statements b/c never run through notice and comment of 553 iii. However, agency’s choice to adopt policy/interp rule is meaningful b/c differing standards in judicial review f. Using Adjudication to Make Rules i. Apply abuse of discretion standard