Administrative Law

Bi-Metallic Investment Company v. State Board of Equalization

1. "In Londoner, a local board had to determine 'whether, in what amount, and upon whom' a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held, that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid." 2. If the DPC is not implicated, then the proper remedy is through politics, not the courts 3. Here, there were a larger number of people affected and they were all affected in the same way 4. Point to note - three factors: a. Number of persons affected (far too cumbersome to permit large numbers of potentially affected persons to have a hearing) b. Extent of the impact on each person c. Factual basis for determining the impact on each person (based on adjudicative facts rather than legislative facts)

Limitations on Ex-Parte Communications

1. APA §554(d) bars an employee who has served as an investigator or prosecutor from communicating with the ALJ, and administrator or any member of a Commission Board, who is responsible for making a decision in the matter a. An ALJ is an agency employee and parties should not be able to affect their judgement b. Under 554(d)(1) - ALJ cannot consult with anyone about a fact at issue c. Under 554(d)(2) - addresses agency prosecutor - cannot influence or advise the ALJ (but if the decision maker is the agency head they can communicate about general regular business) 2. APA §557(d)* - this covers issues of law where 554(d) does not (communications between agency members and outsiders)

Stern v. Marshall

1. Ability of Congress to give Art. III power to a Bankruptcy Court: a. Deciding whether they can decide a counter-claim raised separately, but connected to the Bankruptcy Petition b. The Bankruptcy Court cannot decide a state law claim (fraudulent inducement) between two private parties that is completely separate from Bankruptcy law 2. Dispute between second wife and husband's son 3. Wife alleging that the son impermissibly interfered with her expectations in her husband's will and fraudulently kept him from executing a testamentary instrument 4. Also filed a bankruptcy petition to try to have a judgment rendered on her case against the son, and the son counterclaimed that she had defamed him

Panasquitos Village v. NLRD (Judicial Review of Agency Adjudication)

1. Adverse credibility determinations (testimonial - "did not look me in the eye so I do not believe them") 2. Derivative inferences - there are inconsistencies in their testimony so I do not believe them (these you can spot simply from looking at the Record)

Cleveland Board of Education v. Loudermill

1. Adverse impact occurs if untrue charges seriously stigmatize someone 2. Here the charges involve arguable issues

State Farm Case A&C for QOL?

1. Agency fighting 3 entities/groups: a. Public - want safety but less government intervention b. Car industry - want to spend less (so less safety requirements) c. Insurances companies - want more safety 2. *FN 9 (179) - how the agency wanted A&C to be applied

Three Features that apply to Ex-Parte Communications

1. Applies only to interested persons - an individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary nor need a person to be a party to, or an intervenor in the agency proceeding to come under this section. The term includes, but is not limited to, parties, competitors, public officials, and nonprofit or public interest organizations and associations with a special interest in the matter regulated. The term does not include a member of the public at large who makes a casual or general expression of opinion about a pending proceeding" 2. APA 551(14) - Ex parte communication = oral or written communication not on the public record to which reasonable prior notice to all parties is not given, but not including requests for status reports on any matter or proceeding 3. APA 557(d) prohibits communications relevant to the merits of the proceeding - should be construed broadly to include more than the phrase facts in issue

HYPO 4-7: i. Big cat dealer - had a 10-foot fence ii. Agency promulgate an internal memorandum ("interpretive rule") of a regulation requiring "structural soundness" for enclosures for big cats saying that a 15 foot fence is actually required Can this be a valid Interpretive Rule?

1. Arguments for the RE: a. Under factor A - Even though the agency did not publish the rule in the CFR, they did send it in a memo to inspectors who are the ones that they would expect to enforce it b. Under factor B: i. Adequate basis without this legislation? 1. Argue that height has nothing to do with "structural strength" 2. If not for this policy, there would be no reason for the agency to be able to say that 10 feet is not adequate to hold big cats as this legislation has to do with the material, not the quantity ii. New duty - they would have to change all of their fences to comply and there is a fine for non-compliance iii. Yes "containment" can be read broadly to include height, but argue that in the context of this legislation that they are relying on (which deals with structural strength) height would not be an element of containment 2. Arguments for agency: a. Factor A - did not follow rulemaking procedures and did not publish in the CFR b. Factor B: i. There was no requirement before so they are just clarifying for everyone ii. Interpreting "structurally sound" iii. Containment can be broad enough to include height ii. It seems weird that the agency would just be able to choose a number for height compliance without consulting other groups or opinions, this could probably be held not to be an interpretive rule 1. Analogize to AMC where they tried to say that a "certain number of cultures = a diagnosis and therefore required reporting it 2. Why should they just get to pick a number, rather than waiting for a formal diagnosis 3. AMC was upheld because they were relying on medical data, here there is no indication that they are relying on an industry standard iii. What if they had used adjudication instead? (check Bell-Aerospace Factors)

Is Article I or Article III more restrictive of delegation?

1. Article III includes reference to inferior courts, so the framers did envision some delegation 2. Article I says "all legislative power" is for Congress, Article III does not include this kind of restriction for judicial power (doesn't say all, just says "judicial power")

HYPO 3-2 i. The ESA prohibits Federal agencies from taking any action that would jeopardize a listed species unless they obtain an exemption from the ESC ii. Determines whether an application for exemption meets certain statutory criteria - if it does, the secretary holds a formal adjudication and prepares a report to the committee 1. This is an informal determination 2. The secretary acts as an ALJ 3. The God Squad can later accept the report or deny it iii. The BLM petitioned for an exemption from the God Squad, and the Secretary made his initial finding, held the formal adjudication, and reported to the Committee iv. An environmental group which was allowed to participate in the adjudication, appeals the committee's decision alleging that some members of the committee were subject to ex parte communications What ex parte communications are at issue?

1. At least three members of the panel have been summoned to White House meetings to discuss coming decisions on the owl (The Reuters report contain information) 2. The most concerning communication was between the White House and Krall which seemed like pressure to grant an exception (they told him that the President viewed the granting of the exemption "extremely important politically") ii. When someone challenges an order and says that the decisionmaker was subject to ex parte communications, can the court void the entire order? iii. The members communicated with were decision makers on the issue iv. Is there an interested person? 1. PATCO 2. Broad definition of interested persons, it is not limited to parties in the case 3. Their interest was expressed to be greater than the general public v. Outside the agency? 1. Because we are arguing under 557 not 554 2. Maybe - there were still agency executives vi. Relevant to the merits of the proceeding? 1. Argue this is a request for status? 2. PATCO - "merits" should be interpreted broadly even to include procedural discussions 3. Is it still meant to influence the result? vii. Assuming the facts are true, and there was an ex parte communication in violation of the APA, what is the court likely to do?

Star Newspapers v. Kemp

1. Broad definition of "arising out of employment" 2. Had the gun in the first place to deal with the dangers of his job (it was not uncommon for other drivers to also carry guns) 3. The employee was injured during an "enforced lull" 4. The two were not acting so stupidly that it was just their fault (the employer should not be held liable for an accident that results from "new and added peril") 5. Employees cannot be expected to remain idle while they are being forced to wait for their next shift to start 6. Just because there is a gun involved does not mean there is automatic severance from the employment relationship

Durrah

1. Broad definition of something "arising out of" employment 2. Someone was injured while at work but was also violating employment rules 3. The court still found that they were within the bounds of their employment

OPM v. Richmond

1. Cannot force the government to pay money from the federal treasury that is not authorized by congressional statute 2. Elements: a. Detriment - yes, he altered his behavior based on the wrong advice and lost money b. Reasonability: i. Written and oral advice ii. Unsophisticated claimant 3. This probably would rise to the level of estoppel, but separation of powers concerns constrains the courts, you cannot compel money from the treasury without congressional approval 4. The court left open whether it would apply if a non-monetary remedy were sought

HYPO 3-9: 1. Judicial review of findings of fact 2. Man disqualified from the military for being homosexual 3. Plaintiff admits his action but asks for a waiver 4. Applying A&C to facts in the adjudicative setting 5. Whether waiver can be overturned on judicial review

1. Characterize the agency action (denying the waiver): is it formal or informal? a. There is a lot of process but is there an ALJ? b. Does the enabling statute say "on the record, after the opportunity for a hearing"? (this language is not necessary for formal adjudication but it is sufficient) c. No enabling statute provided in these facts 2. Infer informal adjudication 706(2)(A) 3. The enabling statute allows a waiver where: a. The most unusual circumstances exist and; b. Provided that the airman's ability to perform military service has not been compromised; but c. The exception is not warranted simply because the airman has extensive service or because of intoxication 4. Need to figure out how Jones is arguing beyond the rule: a. Jones is not trying to overturn the rule b. Focus on how this decision was made c. Analyze under Yepes-Prado and Davila-Bardales

Elements of Ex-Parte Communication

1. Communication with a decision maker 2. By a person outside the agency or inside the agency that is involved in prosecution etc. 3. Needs to meet the definition of ex parte 4. Relevant to the merits of the issue

Brown v. Williamson

1. Congress may never have intended to delegate the authority to the agency meriting that kind of deference 2. Even formal and N&C procedures only create a presumption for Chevron

INS v. Chadha

1. Congress reserved for itself in the enabling statute the ability to veto rules/orders that it disagreed with 2. Here Congress disagreed with the agency decision to grant Chadha a suspension of deportation 3. Two Constitutional issues raised: a. Bicameralism requirement: i. Any legislation is supposed to be decided/enacted by both the House of Representatives and the Senate ii. This legislation allowed the disagreement of either legislative body to reverse the decision of the agency b. Presentment requirement - the legislature cannot make a legislative decision without presenting it to the President for their approval 4. Also issues with affecting Chadha's individual rights

HYPO 3-4: 1. Facts: a. Law student accused of violating the honor code through plagiarism b. Case evaluated by an honor committee which recommended a one-year suspension c. The dean decided to expel him instead d. He was allowed to go before the committee and plead his case, but was denied: i. His requests to have counsel present; ii. Bring in outside testimony; or iii. Have a court of his peers 2. Did the school deprive him of a legitimate property or liberty interest? (Claiming the process he was provided was not enough)

1. Considering Roth, Goldberg, and Sindermann, is there a property interest implicated in continued education? a. Likely would depend if this was a state or a private college: i. State college it would be obvious that there is government action ii. If it were a state college, you would not be able to claim Constitutional DPC, but you could look to other sources of law (State Constitution, statutory law, etc.) b. Here Jeremy has an expectation regardless of no contract that his education would last three years: i. Most students stay three years ii. Courses are planned for years 1-3 This also implies that the university assumes their students would be in a three-year program

Christensen v. Harris County

1. County required employees to take the time off rather than having to pay them extra (but an opinion letter previously stated that this could only be done where there was a "prior agreement" between the employer and the employee) 2. Opinion Letter issued: a. What kind of NL is this? b. Policy statement? i. Future effect? No seems more immediate ii. Leave open decision maker discretion? No c. Interpretive rule? i. Agency characterization ii. New law, duties, effects? d. Probably an IR, so it is not binding except to the extent that it relies on an interpretation of an already binding rule 3. The employer here tried to interpret the regulation differently than the opinion letter issued by the agency: a. OL said that you could only require employees to use their comp time if a prior agreement existed Employer believed that the statute authorized them to require employees to use comp time regardless of a pre-existing agreement

HYPO 3-7

1. Darby comments to Jones 2. Credibility determinations: a. Found Mr. Darby credible because of his "sincerity, forthrightness, and candor" b. Found Ms. Jones incredible because she was "brusque and opinionated"

Appeal of ENO

1. Department's denial of unemployment benefits on the ground that she was ineligible because she did not actively seek employment 2. She had been misled 3. This was a DPC claim and these are more difficult to meet than estoppel

Test to decide whether Congress can properly delegate legislative power

1. Did Congress provide an "intelligible principle" for the agency to follow? 2. If Congress gives the agency an intelligible principle to follow, then they can get assistance (consider it not a full delegation) 3. JW Hampton Jr. - Policy they are to apply and the boundaries or limitations to their authority

Estoppel

1. Did they suffer a detriment? 2. Was their reliance reasonable?

Applying the Stone Test

1. Do they have a property interest? a. Roth - legitimate claim of entitlement grounded in some source of law (even state contract law) b. Can also just analogize to Stone: i. Stone had a government employee that was laid off with no opportunity to confront ii. The HYPO is similar enough in the claim of entitlement to continued employment 2. Is this new or cumulative information? a. The facts of the HYPO do not clearly establish b. Did they know about it and have an opportunity to respond 3. Of the kind that leads to "undue pressure"?

Three Steps to decide whether an issue falls under the APA

1. Does the APA apply to this inquiry? a. Is the entity here an agency as defined by APA § 551 2. Does the APA apply to the agency action here (rulemaking, adjudication, or other) in whole or in part? a. Need to check the enabling legislation/statute b. Some statutes exempt particular agencies from particular review/procedures and set forth their own procedures c. In order to meet this kind of exception, the organic statute must have been written after the APA and must state explicitly that the agency is exempt 3. How does the APA interact with other applicable laws (the enabling statute, coordinating laws, the Constitution)

Lujan v. National Wildlife Foundation

1. Executive order withdrawing all federal lands open for resource development from any resource development pending their study and classification by the Secretary of the Interior 2. Discrete actions?: a. Actual or immediate threatening affect of what the agency did b. So what is discrete? i. Ex, had the agency enacted a rule ii. Cannot just challenge the entire program 3. Why limit it to discrete action? a. Courts are reluctant to force action (expertise, resources, etc.) b. Institutional capacity c. Court needs a standard, broader things are purposefully left to the agency 4. NWF challenge and say that BLM's implementation violated procedures 5. Entirety of petitioner's so-called land withdrawal review program - this is too broad to be considered an agency action 6. Respondent cannot seek wholesale improvement of this program by court decree 7. But it is at least entirely certain that the flaws in the entire program - consisting principally of the many individual actions referenced in the complaint, and presumably actions yet to be taken as well - cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members

Why give higher deference to agency action that followed more formal procedures?

1. Expertise theory: a. More consideration b. More involvement of the public c. Better expertise 2. Delegation theory: a. If Congress left it ambiguous, they probably wanted the agency to decide b. Process = notice = fairness

Copanos v. FDA Facts

1. FDA proposing to withdraw a permit 2. Kanasco received adequate notice 3. Establishes procedures whereby the FDA after due notice and opportunity for hearing to the applicant can withdraw prior approval (must satisfy statutory grounds for withdrawal) 4. The standards for determining whether a manufacturer's methods, facilities, and controls are adequate, to assure and preserve the identity, strength, quality, and purity of its drugs are set forth in the FDA's current good manufacturing practice regulations 5. The FDA inspected the company for three years and found many violations - the FDA issued a form specifying the nature of the violation and the company promised to come into compliance 6. If the company wanted a hearing they had to submit the data, information, and analyses relied on to justify a hearing 7. Defendant argues that they did not know what information or issues they had to allege to get a hearing or avoid summary revocation of their case

Petitions for Rulemaking

1. Filed under APA § 553 (b), (c), and (e) 2. APA § 553(e) - Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 3. Also consider whether the agency itself has any internal requirements for a proper rulemaking petition/answering a petition 4. Need to monitor the Federal Register to see if any new rules have been promulgated 5. Advantage of a petition v. lobbying - a petition requires the agency to take action and if they do not meet this obligation, you can see judicial review 6. Disadvantage of a petition v. lobbying a. If you file a petition and the agency follows all of the correct procedure in denying your petition, it could be the end of the road for your client as far as redress/getting the rule they want b. Lobbying is seen as a friendlier request

Concern for adjudicative v. legislative facts

1. Formal for adjudication makes sense because you need specific/individual information that may not be publicly available 2. Rulemaking is based on public information

Barnhart v. Walton

1. Here the law was issued with N&C so definitely apply Chevron 2. Issue is the fact that the legislation was promulgated after litigation had begun, so want it not to be applicable 3. In dicta, the court suggests that because the agency used N&C is not determinative of whether Chevron applies, there are other factors to consider of when Congress may want Chevron deference a. What is the interstitial nature of the legal action (is it major or is it just filling in the gaps - if it is just filling in the gaps, this weighs against deference) b. Expertise of the agency (weighs in favor of deference) c. The importance of the question to the administration of the entire statute (weighs for deference) d. Complexity of the statutory scheme (weighs for deference) e. Careful consideration the agency has given the action over a long period of time 4. What other ways are there for Congress to establish its intent?

Delegation of Judicial Power to Adjuncts

1. Historically there were special masters appointed to gather facts and precedent for the Article III court to help them make a decision 2. This was allowed even with private disputes 3. There has to be some mechanism for judicial review (usually appeal)

US v. Mead Corp Facts

1. How to apply Skidmore 2. Agency action = rule letter a. Informal adjudicative order of an interpretive rule? b. Order = reactive and specific to a party c. Rule = proactive and general d. The letter here does not only apply to Mead so it is probably an IR (would need to apply Davilla and AMC to decide if it is valid) 3. Here, there is nothing else demonstrating that Congress intended more deference: a. There were thousands of these kind of rule letters issues (and not all were consistent) b. They were not binding c. These are not an authoritative statement of the agency because so many agency branches can issue them and they all regard different situations d. They are not centrally reviewed

City of West Chicago for Agency Adjudication

1. If Congress uses the language, then you have a presumption for formal procedures 2. "on the record" might be enough 3. How else can they indicate their intention for formal procedures? 4. What is "clear intent" - hard standard to apply

HYPO 2-8: 1. Statute here governed the importation of chickens from foreign nations 2. USDA interprets "same" in the legislation as meaning equivalent to but not necessarily identical and promulgates a rule that says the process in the other country must be "at least equal to" the US process 3. Domestic poultry sues because this standard makes it easier for foreign poultry to be imported which means more competition for them

1. If King applies then you do not need to do a Chevron analysis: a. This is only the import of one product (arguably affects less people) b. It is just food c. USDA has expertise 2. Chevron: a. Did Congress clearly speak? i. Plain meaning: 1. "same" typically means identical but some definitions include of the same "kind or species" 2. Could mean "same result" - meaning it does not have to be the same exact process ii. Statute as a whole - context 1. Congress said equivalent for Canada and Mexico (I.e. they knew how to say that and chose not to here) 2. Argue they just wanted variety of language? (not a strong argument) iii. Legislative purpose and intent: 1. Purpose = protect public health (that can be achieved through similar processes that achieve the same result) 2. History - the record shows that they took out "equivalent" and made it "same" (but the change was made without allowing the opportunity for further debate) 3. The purpose of this legislation is not to protect domestic poultry farmers 4. Saying "exact same" could end up excluding the import from countries who have more stringent/safer standards b. Probably decide it was ambiguous - therefore was the agency's interpretation reasonable? (probably)

HYPO 1-3/4

1. If the Army Corps responds by saying that the wetlands do require a permit and base their decision on the memo, is that procedurally allowed? 2. OR if the Army Corps responds and says that they are not subject to the permit requirement, is that procedurally correct? 3. How can the interested parties respond? a. Attorney and Client with Wetland b. Fish and Wildlife Service i. Should they sue? ii. May be too early to have a good case and that is very expensive - would need to pay for attorneys etc. and there potentially will be no redress iii. Their interests diverge from Helen and her client iv. They want to express that independently v. If a build has already started, it can be difficult to stop it vi. Could potentially appeal to the higher authority (the EPA)

Heckler v. Community Health Services

1. Incorrect interpretation of federal regulations for Medicare reimbursement 2. To claim estoppel against the government, you have to at least establish these and likely need more 3. Elements: a. Detriment - Here it was not to their detriment because they were never entitled to it in the first place b. Reasonability - Even though they had the advice of the intermediary they should have known not to rely on them because: i. They were an intermediary - you did not really rely on the government, so why would you be allowed to keep tax payer dollars (and it is your duty to make sure that tax-payer money is spent correctly) ii. The advice was oral iii. They had a handbook that told them how to seek advice

Constitutional Standing

1. Injury in fact - must be concrete, particularized, and actual or imminent 2. Causation 3. Redressability

AHA v. Bowen Test - A rule is substantive if:

1. It substantially alters the rights of parties and the impact cannot be incidental 2. It encodes a substantive value judgement that is likely to substantially alter party behavior (the agency seems to be giving the action a stamp of approval or disapproval)

Combo of AHA and ATA Rules - a rule is substantive if:

1. It substantially alters the rights of parties and: a. Is not incidental; and b. Is too important to abridge; 2. It encodes a substantive value judgement: a. Likely to substantially alter party behavior b. Affects primary conduct as defined in the enabling statute

Stone Test

1. Just because ex parte communications happen does not mean that DPC is implicated - there needs to be a property/liberty interest 2. Factors to consider: a. Cumulative v. new information (if it is old information then you arguably already had notice) b. Notice? c. Is this of the kind that usually leads to "undue pressure" on the decision maker?

Purposes of the APA

1. Keep the public informed and involved 2. Uniformity 3. Restate the law of judicial review

HYPO 1-1

1. Man wants to build on unimproved land but does not know whether the lands are protected wetlands - spoke with the Army Corps and they informed him that they were protected and could not be filled without a permit which would be very difficult to obtain 2. The regulation is ambiguous as to what wetlands actually require a permit and which don't 3. Attorney wants to meet with the local army corps to get clarification about whether they need a permit/how to obtain one 4. Definitely should complete the meeting and enter it seeking information, don't try to start fights (the agency is the one with the permit that you want, only get aggressive if actually necessary)

Universal Camera

1. Must consider the entire record when conducting judicial review of an agency adjudication, not just agency findings 2. Testimonial inference (ex. demeanor) v. derivative inferences (the evidence itself - ex. inconsistencies in the testimony) 3. When an ALJ is making a "demeanor" conclusion, the reviewer must give some "particular weight" to their determination because they did not get to observe the witnesses

HYPO 2-2 - Facts from 2-1 The Company elects to file a petition for rule making rather than seek an adjudication (if you seek an adjudication, then it would only apply to you for that specific pesticide - inefficient in the long run) 1. The EPA takes no action for two years 2. Company asks for an explanation and the EPA says it is backlogged due to a statutory requirement for other pesticide testing 3. The Court can act under 706 but is this delay really unreasonable?

1. Need to consider the factors from TRAC v. FCC - here they are in agency favor: a. No Congressional time-table b. Human welfare: i. Could argue that agency inaction will keep pesticides out of the market ii. If the agency took action now, it could be greater protection for the public c. Other agency priorities - the agency already raised this argument and nothing suggests that they are violating a rule d. Interests prejudiced? e. Any signs of impropriety? 2. Even considering all of these factors, this case is still distinguishable from MA v. EPA because the agency provided reasons for their decision: a. The current rule is effective b. They have a lack of resources c. Even if it would be more economically efficient for the firm, it would be the opposite for the EPA 3. The regulated entity could appeal a decision rendered by the court under APA § 706(2)(A)-(E): a. Is there any evidence that the EPA's current rule is ineffective? b. There has not been environmental injury so there is probably no issue that needs to be fixed in their eyes c. If they allow the exception here, they have to do the testing themselves and they are backlogged d. Would this actually meet the arbitrary and capricious standard? i. Consider Arkansas Power and MA v. EPA ii. Is the agency's decision here actually ridiculous?

Larkin (Judicial Review of Formal Adjudication)

1. Neutral decision makers 2. Finding prejudice: a. Adjudicator has a pecuniary interest in the outcome of the dispute (agency decision maker = head of the agency that is regulating) b. The party before the adjudication has made critical or abusive comments about the adjudication

HYPO 6-1: 1. Native Americans apply to acquire land seven miles from their reservation for an Industrial Park to stimulate economic growth 2. The Secretary of the Interior is entitled t buy land and approve it to the Native Americans under a statute 3. The City and the State sue because losing this land would mean less tax value for them 4. Language at issue in the statute: a. The authority granted on 546 b. The Sec. Can purchase land "for the purpose" of providing land for the Native Americans 5. Two broad arguments: a. Can argue that this was an invalid delegation because there was no intellectual principle for the agency to follow b. Can argue that there is an intelligible principle, but still the agency interpreted the purpose of the statute wrong

1. Non-Delegation argument for the City: a. Use Panama City and ALA Schechter cases b. Argue that there are no real limitations on agency action, saying "for the Native Americans" is not enough of a limitation c. The statute should say what kind of land can be purchased and when and for how much d. Concern that the agency might end up purchasing land that Congress never actually intended to be purchased 2. Agency response to the Non-Delegation Argument: a. History and precedent - the court has only struck down two previous non-delegation cases b. The court traditionally avoids constitutional issues and if they can find a way to construe the statute that is constitutional, then they will interpret it that way c. There is a limitation in that they could only purchase land for Native Americans when they could use it beneficially d. Land should be considered "limiting" enough e. The agency is also limited in that they only have a certain budget (so they would be limited by what they can spend) 3. Statutory Construction Argument for the City: a. Statute was intended only for agriculture? i. The legislative history considers forestry, subsistence, and stock grazing, etc. ii. The legislature may only have considered agrarian use, so an Industrial Park may not be a permissible construction b. An Industrial Park may also not be the "plain meaning" of "land" c. The statute also has language considering "within the boundaries of the reservation" - this land is seven miles outside of the reservation (but this provision refers to the Navaho Native Americans, not the Sioux) d. Would be advocating for Skidmore review - there is no formal procedure here and Congress does not indicate any other intent (Barnhart Factors) 4. Statutory Construction for the Agency: a. The land sale is not a violation b. The legislative history was concerned with beneficial use, this could obviously be beneficial for their economy c. Agriculture may just be a suggestion

Stages of Rulemaking under the APA

1. Notify the public of the proposed rule 2. Invite public input 3. Consider that input when deciding on the final rule 4. Explain the final rule 5. Publish the final rule before it takes effect

Associational Standing

1. One or more of its members would have standing to bring the action 2. The lawsuit relates to the purposes of the organization 3. Neither the claim asserted nor the relief requested requires the participation of the individual members (i.e. not for damages)

HYPO 4-7: i. Big cat dealer - had a 10-foot fence ii. Agency promulgate an internal memorandum ("interpretive rule") of a regulation requiring "structural soundness" for enclosures for big cats saying that a 15 foot fence is actually required iii. First, could the memorandum be considered a valid policy statement?

1. Prospective effect? (seems more like present effect - owners have to comply now) 2. Discretion? (requires that field agents start citing any individuals without a 15 foot fence 3. Basically probably not

Fund for Animals, Inc. v. Rice Facts

1. QP - want to focus on the claims that are procedural: a. Whether the DC erred in finding that the Corps did not act arbitrarily or capriciously in making the decisions: i. To grant a permit to fill 74 acres of wetland ii. The agency did not hold a public hearing before making their decision iii. They did not require an Environmental Impact Statement b. Whether the DC erred in finding that the FWS did not violate the ESA by issuing "no jeopardy" Biological Opinions and in finding that the Corps did not act arbitrarily or capriciously in relying on these opinions 2. Court affirms the decisions of the agency - confirms the deferential attitude that courts have towards agencies

Why preference Informal Rulemaking?

1. Quicker and more efficient 2. Allows agencies do what they were created to do 3. No limits on participation (formal rulemaking is limited to "parties") 4. Legislative facts v. adjudicative facts: a. Adjudication is to make a decision regarding one person and you need facts about that individual that only they may know, makes sense to allow them to come in and tell their own story b. Rulemaking is based on facts that are readily available to the public and is meant to be generally applicable, makes sense to make it more accessible and less formal

Bell Aerospace/Chenery Factors for deciding if Adjudication was a proper choice for the agency to make

1. Reasons for the agency's decision v. 2. Adverse consequences to the regulated entity a. Is there a new liability and did the RE rely on the old rule b. Fines or damages?

Hybrid Rulemaking Procedures

1. Reg-Flex (127) 2. Executive Order (130) 3. Trigger - what decides when an agency will be subject to further procedure? 4. Procedure - what is actually required 5. Judicial review - can you challenge a rule as invalid for failing to adhere to hybrid procedure?

Can a court reach the same conclusion under Chevron that it would under Skidmore?

1. Relying on Chevron can the court reach a different interpretation than the agency? 2. Yes if they decide at Step 1 that Congress actually was clear and the agency is wrong; or 3. If they decide at Step 2 that the agency really was unreasonable

HYPO 4-8

1. Relying on employee advice regarding how hot is too hot 2. The agency review held that the HPF improperly relied on the advice of the employee (they had tried to obtain an official opinion but were told there would be a delay until longer than the animals needed help) 3. Should they have anticipated that the 90s would be too hot or should the fine be valid? 4. Is there anything in the APA that prevents an agency from changing an IR without procedure? No, but are there other doctrines? (Estoppel and DPC) 5. Did they suffer a detriment? a. Required to pay a fine but they did get to ship their puppies b. They are worse off than before 6. Was their reliance reasonable? a. Oral advice b. Employee but not a supervisor (not authoritative) c. Responsibility to do further research? i. Compare to Heckler ii. There - reimbursement scheme was ambiguous iii. This should indicate that you need to do some work to figure out what the situation is d. Can you rely on OPM?

Types of Agency Action

1. Rulemaking (legislative function - can still be challenged as unconstitutional or bad interpretation of congressional intent) 2. Adjudication (judicial function - determine whether someone has violated a law or rule) 3. Investigations (consider 4th Amendment issues - executive action to enforce the will of Congress) 4. Separation of Powers

Osteen

1. Student assaulted others - expelled for two years with option to reapply 2. Claim property interest in education and this hearing violated that 3. Wants an attorney to challenge sanction and examine witnesses (did have student advocate - says this is not enough) 4. Right to consult with counsel is granted but not the right to have the attorney perform trial like functions 5. Court applies Mathews: a. Factor 1 and 2: i. Interest at stake = two-year expulsion ii. Non-permanent which is not so grave iii. He could apply to other schools but what is the likelihood that they would actually admit him? iv. A two-year expulsion does not risk erroneous deprivation of his rights: 1. No evidence of ill will on school's part 2. Unlikely that school would willy-nilly expel people (they rely on tuition) b. Factor 3: i. If you allow an attorney and attorney-like functions here, then all school disciplinary proceedings would require it ii. This would be a very large cost and would likely be inefficient iii. Makes academia too judicial 6. What does due process require? a. HYPO - expelling Jeremy implicated his liberty and property interests so he is due process but how much is he due? b. Does not require presence of attorney or ability to call witnesses

Consolidated Edison (Judicial Review of Formal Adjudication)

1. Substantial Evidence review (very deferential to the agency) 2. More than a "mere scintilla" (the court used to just pick through the Record and find any evidence that would support the agency decision (and if there was any small support, they would affirm for the agency) 3. Even if there was a ton of contrary evidence, but there was anything to support the agency, they would affirm

Examples of Substantive v. Procedural Rules

1. Substantive - identification or changing of parole eligibility guidelines 2. Substantive - preventing regulated entities from appealing decisions (but this seems procedural like a SOL)

Londoner v. Denver

1. Tax assessments 2. Hearings are required here because there is sufficient individualized action 3. Each different parcel was individually assessed to determine whether a tax should be levied 4. There can be government action even where the government delegates its authority

Factors when evaluating ex-parte Communications

1. The gravity of the ex parte communications 2. Whether the contacts may have influenced the agency's ultimate decision 3. Whether the party making the improper contacts benefitted from the agency's ultimate decision 4. Whether the contents of the communication were unknown to opposing parties, who therefore had no opportunity to respond 5. Whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose

Concerns with Delegation of Legislative Power

1. The legislature is made up of elected representatives but agencies are not, concern for political accountability 2. The Constitution specifically delegates legislative power to Congress 3. Concern that the agency may not adhere to limitations on the power

Constitutional Basis for Delegation of Legislative Power

1. There is no explicit prohibition 2. Congress rely on the Necessary and Proper Clause - can write legislation that is necessary and proper to administer the laws (and sometimes it might be N&P to delegate it to someone with better expertise)

Codd v. Velger

1. There must be a factual dispute 2. The trial court says there is no violation because the employee "released" the information, but he basically had no choice if he wanted to get another job 3. Plaintiff had been dismissed because while still a trainee, he had put a gun to his head and threatened suicide 4. Court of Appeals found that there was no stigma which is clearly erroneous - this information was of a kind which would necessarily impair employment prospects 5. Act of making available personnel files with the employee's consent was enough to place responsibility for the stigma on the employer, since former employees had no practical alternative but to consent to the release 6. There must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation. Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false

What is an agency?

1. They live in the executive branch, but they have responsibilities spanning all three branches (rulemaking = legislative, adjudication = judicial) 2. Agency - an authority of the government that does part of the government's work using government resources a. APA § 551 defines an agency as something that grants authority b. Authority is not defined in the APA c. This definition is broad enough that it could include individuals ex. Secretary of State

NLRB v. HEarst

1. This was decided before Chevron but the factors are basically the same 2. The newspaper refused to bargain with the newsboys 3. Whether the newsboys are employees such that bargaining is required? 4. What are the questions: a. Question of fact - What are the duties of the newsboys? b. Question of law - Scope or definition of employee 5. The newspaper wants the court to rely on the common law definition of employee, which is much more exclusive, but the agency interpreted the term more broadly as to include independent contractors 6. Test laid out: a. First the court reviews the facts found by the agency and determines whether these conclusions have a warrant in the record b. Second, the court reviews the agency's explanation for its decision to decide whether it has a reasonable basis in the law 7. Basically, did the court make a rational determination 8. Similarly comfortable giving deference because the two procedures both require a lot of process (informal rulemaking and formal adjudication)

Three options for Handling Mixed Question

1. Treat them exclusively as questions of fact - O'Leary 2. Treat them exclusively as a question of law - NLRB v. Hearst (Chevron) 3. Bifurcate the questions of law and fact and apply the necessary standard to each

Does it make sense that DPC Claims are usually ineffective?

1. Typically there is an unsophisticated individual plaintiff trying to face the power of the government 2. Maybe the argument is different when it is an RE v. an individual trying to challenge the government 3. RE has resources and training 4. But would it really be fair to hold the government (and tax payer dollars) hostage for the mistake of one employee who may not have even had the authority to make that decision in the first place 5. If these suits were more successful it could incentivize the government to be more careful and try to check their employees but it COULD incentivize them to just stop giving advice and that would be bad

Substantial Evidence Review when Formal Adjudication is used

1. Used to be a mere scintilla (Consolidated Edison) 2. Now "such evidence as a reasonable mind might accept as adequate to support a conclusion" 3. Universal Camera - the Court must rely on the entire record, cannot just cherry-pick support for the agency 4. Very similar to the arbitrary and capricious standard for informal adjudication/rulemaking review 5. The agency or the enabling statute can require SE review even in informal procedure (look to see if an ALJ is presiding)

Chemical Waste Management (Current Standard for Agency Adjudication)

1. What if we do not have the formal language? 2. Apply Chevron deference to agency's reasonable interpretation of whether formal procedures are required 3. How is this situation different from Chevron though? a. Do we need agency expertise in analyzing the APA? b. Chevron had a substantive interpretation of the law c. This is not a substantive interpretation but an interpretation of the APA procedure - doesn't deference here kind of undercut the purpose of regulating the agency

Situations when docketing is necessary of all ex party communications

1. Where such conversations directly concern the outcome of adjudications or quasi-adjudicatory proceedings 2. Where a statute like this one specifically requires that essential information or data upon which a rule is based be docketed

Considerations to decide whether retroactivity (when the agency chooses adjudication) is fair

1. Whether the particular case is one of first impression 2. Whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law 3. The extent to which the party against whom the new rule is applied relied on the former rule 4. The degree of the burden which a retroactive order imposes on a party 5. The statutory interest in applying a new rule despite the reliance of a party on the old standard

Questions to ask when evaluating an Administrative Law Issue

1. Who are the players? 2. What are their interests? 3. What did they do to further their interests before the case? 4. What kid of action is the agency taking? 5. Is the issue being challenged a QOF or a QOL? 6. Do any exceptions apply?

Why have the limitations in 557 separately from those in 554?

1. Why do we need a separate prohibition regarding outside parties and the agency? 2. APA §557 expands its past facts to anything regarding the case (not just facts in issue or the merits) 3. Applies to formal rulemaking (not just adjudication)

Precluded from Judicial Review because committed to agency discretion

21. APA §701(a)(2) - committed to agency discretion by law a. Standard = Overton Park b. Is there any law to apply? c. Meaningful standards by which to review the agency action 2. Very narrow exception that applied only where a statute was phrased in such broad terms that there was no law to apply - if a statute grants discretion to an agency, and the law does not establish a standard against which to assess the exercise of that discretion

What is the Scope of Review for Statutory Compliance Violations - When they are working with an enabling statute (QOL)

706(2)(C) - Chevron Deference

What is the Scope of Review where the Agency has committed a procedural violation under a Statute they do not administer?

706(2)(D) i. De Novo Review (no deference) The court is in as good as, if not a better position to decide what

What is the Scope of Review where the Agency has engaged in Informal Rulemaking and you are dealing with a QOF

APA 706(2)(A) i. Arbitrary and Capricious Standard (some deference) ii. With this and formal rulemaking, the court is reviewing agency findings and conclusions, makes sense to be deferential (especially in matters requiring "agency expertise") iii. Congress can also indicated in the enabling statute that they want the agency to be subject to a different form of judicial review (ex. substantial evidence)

What is the Scope of Review for Constitutional Violations under APA 706?

APA 706(2)(B) i. De Novo Review (no deference) ii. It would not make sense as a matter of policy for the court to defer to the agency on a constitutional question

What is the Scope of Review for QOF of Formal Rulemaking?

APA 706(2)(E) i. Substantial Evidence review (basically the same as A&C) ii. Consolidated Edison - "substantial evidence" = such relevant evidence as a reasonable mind might accept as adequate to support a conclusion

Informal Adjudication

APA § 555(e) - Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.

Constitutional Anomalies of Agency Structure

Agencies can use all three of the branch powers even though the Constitution specifically enumerates those powers for certain branches i. But they live in the executive branch ii. They are only supposed to enforce the law, not make the law

APA 704 - Actions Reviewable

Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.

APA 551(5) - Rulemaking

Agency process for formulating, amending, or repealing a rule

APA 551(4) - Rule

An agency statement of future effect designed to implement, interpret, or prescribe law or policy (something with general applicability and future effect)

Exceptions to the Definition of an Agency

Congress, the Courts, and the President

Vermont Yankee v. NRDC

Congress, the White House, and the agency itself can require further procedural steps, but the Court is not allowed to impose any

Constitutionality of the law - Law that would make proposed suspensions of deportation ineffective within 180 days both houses vote and present to the President a joint resolution to rescind the suspension

Constitutional

Air Traffic Controllers Court Analysis

Court must consider whether, as a result of the improper ex parte communications, the agency's decision making process was irrevocably tainted so as to make the ultimate judgement of the agency's unfair, either to an innocent party, or to the public that the agency was obliged to protect (even if you make them re-do the decision, will they really make a different decision, or would they just come up with a better explanation for the original decision) i. The events here provide insufficient reason to vacate the decision - the contacts in issue did not affect the FLRA decision and were not so serious as to require a vacation of the decision ii. Member Applewhaite was an interested person outside the agency communicating with a potential decisionmaker but they were discussing other matters iii. The shared concerns of the authority are not put on hold whenever the GC prosecutes an unfair labor practice complaint iv. The dinner was the sketchiest meeting: 1. There was no reason to reject the invitation because the purpose was not to discuss the PATCO case 2. The last 15 minutes of the dinner did the discussion become relevant to the PATCO case. Applewhaite should have terminated the conversation once it discussed the merits. 3. BUT there were no threats or promises made in exchange for a favorable result

Ex Parte Communications

Defined in APA §551(14) - an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter 1. This definition does not apply to informal rulemaking 2. N&C requires public comment and this can include any interested person, not just parties

Two kinds of Injuries

Direct injury - fines/impositions, easier to establish because tangible Indirect injury - attenuated/recreational aesthetic/environmental damage, more difficult to establish

Logical Outgrowth Test

Does it materially alter the issues - substantially depart from the terms/substance of the proposed rule?

APA 704 - Exception for Judicial Review

Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority

APA 553(b)(3)

Except when notice or hearing is required by statute, this subsection does not apply— i. to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or ii. when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

A&C under State Farm

If the agency has relied on factors that congress did not intend it tom if it entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise

Goldberg v. Kelley

In modern society, the loss of a government entitlement, such as a welfare benefit, had the same adverse impact on a person as when the government deprived someone of private property - citizens have an expectation in the entitlement

APA 701(a) - Preclusion from Judicial Review

Judicial review provisions apply except to the extent that: a. Statutes preclude judicial review; or b. Agency action is committed to agency discretion by law

Hard Look Review

Method of applying the A&C Test that is more exacting and expects more from the agency 1. Court requires a substantial inquiry and thorough probing in depth review: a. The ultimate scope is still narrow b. Court is not empowered to substitute its own judgement for that of the agency

Public Rights Tribunnal

Non-constitutional rights asserted by people in disputes with the government" a. Tax disputes b. Reasonableness of rates c. Customs disputes d. Immigration

Sea Coast Test for Agency Adjudication

Presumption for formal procedures unless otherwise specified in the statute

Alaska Hunters

Prior interpretation required N&C/legislative action to change a non-legislative rule (this has since been over turned)

Where is Delegation of Judicial Power allowed?

Public rights questions (only in civil, not criminal law) Where the Agency is acting as an "Adjunct" to the Article III court

HYPO 2-9: a. Had mechanical and defect disclosures and later removed that part of the regulation b. Consumers unhappy - argue that they did not have sufficient notice that their interests were at stake 1) Under the APA what standard governs judicial review of agency substantive findings here? 2) What factual findings did they make and what conclusions did they draw with regard to the original and amended rules

Question 1: i. A&C standard because this is under informal rulemaking (553) 1. Unless the enabling statute says otherwise, there are very little requirements 2. Congress could have decided they wanted SE standard - check enabling statute ii. Assuming SE here Question 2) i. OG Rule: 1. Warranty disclosures 2. Concerning behaviors of car dealers and buyers 3. Ask what motivated the rule? a. Dealers inspect cars at auction and appraise any that are privately owned b. Dealers know the defects and how they would affect the buyer c. Buyers get more information from dealers in states that already have this mandatory disclosure rules 4. Conclusion - if dealers have and buyers want information, a mandatory disclosure rule would encourage dealers to find defects and inform consumers which would be better in the long-term ii. Amended rule: 1. Facts: a. The fact that dealers have general knowledge about the cars position does not mean they also have specific knowledge of mechanical defects b. Their inspections do not necessarily reveal all of their issues c. Buyers (177) i. Contradictions in the data regarding states that already had the mandatory disclosure rule ii. The data from WI was not necessarily true and other states with no mandatory disclosure had better informed buyers iii. Did the information in WI really improve after the new law? 2. Conclusion: a. Would not actually reveal better information b. Could encourage willful ignorance c. Could actually mislead consumers because they would trust the dealer's analysis which may not have been fully accurate iii. Apply the State Farm Test: 1. Pass/fail reasonability 2. Agency findings do not have to be perfect as long as they are rational 3. What about the conflicting evidence between WI and MI? 4. Is there a reasonable connection between facts found and conclusions drawn? a. Under SE must the court affirm? b. There is some evidence in the record supporting the agency just because there is contradictory evidence does not mean that the agency is wrong c. Will depend if the court employs hard look 5. Three conclusions drawn: a. Disclosure will not provide reliable information b. Disclosure would discourage dealer inspections or penalize honest dealers c. Disclosure would mislead buyers 6. Nothing in the record suggests that the conclusions are implausible: a. Rely on agency "expertise" b. SE is very deferential

Skidmore Deference

Respect to the point that the legislation has the power to persuade

Pass/Fail Test

The agency does not fail because the court disagrees, there needs to be a significant gap in reasoning or application

HYPO 2-3 - Agency provides a reason for denying the firm's request: i. Current rule is effective ii. They lack the proper resources iii. Even if it would be more economically efficient for the firm, it would be the opposite for the EPA What result?

The agency would likely prevail as long as they do not read the Congressional standard completely wrong - courts are very deferential and they do not want to overstep, especially when an agency argues that they could not effectively promulgate a good rule due to resource restraints

Adjudication in General

The end product here is an Order (remember that it includes licensing) a. Specific applicability and not prospective b. It is a retrospective determination about what the entity did in the past c. Must also be a final disposition i. This can get confusing if an agency issues a decision regarding a particular agency and issues a report, but it is not a final disposition ii. Another issue ex. If the EPA adds a turtle to the endangered species list (this prohibits people from future action against the turtle and is general in that it prohibits all action, but it is specific in that it deals with the single turtle (better to check the enabling statute))

APA 551(7) - Adjudication

The formulation of an order (agency disposition except decisions produced by rulemaking)

If VY says that courts are not to impose additional procedures on agencies not otherwise required by law, where is the source of authority for requiring the kind of agency explanation the SC demands in State Farm?

The requirement for a rulemaking record is already implicitly in the APA because APA § 552 requires that the court review the record/everything considered (how can they review that if the record does not exist)

APA 551(6) - Order

The whole or part of a final disposition (result of adjudication) other than rule making but including licensing

Remedies for Ex-Parte Communications

There are no enumerated remedies for courts to impose, but APA §557(d)(1)(C) and (D) provides potential cures for the agency to use: 1. APA §557(d)(1)(C) - cure - notify all parties and give opportunity to respond 2. APA §557(d)(1)(D) - administrative sanction (agency can issue it but not the court)

APA 701(a) - Exception for Judicial Review

This chapter [5 USCS §§ 701 et seq.] applies, according to the provisions thereof, except to the extent that— i. statutes preclude judicial review; or ii. agency action is committed to agency discretion by law.

Constitutionality of the law - Law that would make proposed suspensions of deportation ineffective if within 180 days both houses vote by concurrent resolution to rescind the suspension of deportation

This does not solve the presentment issue from Chadha so it is unconstitutional

Air Transport Dissent

This is clearly procedural, not changing why or what you could appeal for, just when you had to do so by

Constitutionality of the law - A law that would require the Attorney General to submit a proposed suspension of deportation to the Secretary of State, which would be ineffective if within 180 days the Secretary of State vetoed the suspension as contrary to foreign interest of the United States

This would not be considered a legislative act so even though there is no presentment and no bipartisan consideration, it would still be constitutional

APA 706 - Standards of Review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— i. compel agency action unlawfully withheld or unreasonably delayed; and ii. hold unlawful and set aside agency action, findings, and conclusions found to be— 1. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2. contrary to constitutional right, power, privilege, or immunity; 3. in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; 4. without observance of procedure required by law; 5. unsupported by substantial evidence in a case subject to sections 556 and 557 of this title [5 USCS §§ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute; or 6. unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. iii. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Why is any delegation of Judicial Power allowed?

Tradition Sovereign Immunity - you cannot usually sue the government, so the fact that they allowed the suit at all should also mean that some other procedures can be changed, i.e. suit can be outside of an Article III Court

DC Federation Case

Two conditions be met before an administrative rulemaking may be overturned on the grounds of Congressional pressure: i. The content of the pressure upon the secretary is designated to force him to decide upon factors not made relevant by Congress in the applicable statute ii. The secretary's determination must be affected by those extraneous considerations

Chocolate Manufacturer's Association v. Block

What happens when there is a deviation between the proposed rulemaking and the final rule?) i. New rule for school lunch programs and welfare programs and what foods to include to have a healthier base ii. There were reviews of sugary drinks but no mention of flavored milks iii. There was a discussion of milk but no mention of flavored milk iv. The original proposed rule specifically allowed for enclosed milk v. Whether inclusion of flavored milk in the allowable food packages under the proposed rule should have alerted interest persons that the Department might reverse its position and exclude flavored milk if adverse comments recommended its deletion from the program vi. How to judge the adequacy of the notice when the proposal it describes is replaced by a final rule which reaches a conclusion exactly opposite to that proposed, on the basis of comments received from parties representing only a single view of a controversy vii. 5th Circuit test - notice is adequate if the changes in the original plan are in character with the original scheme and the final rule is a logical outgrowthof the notice and comments already given

Focus on the Procedure of Administrative Law

What steps does the agency have to follow and when

Two Step Test Created by Chevron

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions: i. Determine Congressional Intent - Whether congress has directly spoken to the precise question at issue (favors no one just look to Congress) ii. Whether the agency's answer is based on a permissible construction of the statute (was the agency action rational) (favors the agency)

Choice of Procedures

When is it appropriate for an agency to use adjudication, rule making, or non-legislative rule making to make policy decisions? Evaluated under the abuse of discretion standard

Example of a Mixed Question

When someone has a heart attack at work and falls off scaffolding and dies: 1. Question 1 - fact: did she die from a heart attack or from the fall? 2. Question 2 - law: did the death necessarily arise out of her employment?

A&C under Overton Park

Whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgement a. The test used to be much more deferential until a shift in the 1960s leading to less trust in the agency b. The test today is more subjective but "hard look" makes it a little more uniform

Why have a weaker form of Judicial deference?

Without the requirement of formal procedure, it is less clear that Congress intended an agency to receive deference

Paul v. Davis

a. "Stigma Plus" b. Defamation deprives liberty only where it impacts an employment opportunity c. "In order to trigger due process protections, the government action not only must harm a person's reputation, but it must also subject the individual to some other disability, such as the loss of a job or the ability to purchase alcohol."

Chevron v. NRDC Facts

a. 1977 Amendments to the CAA which required polluters in certain areas to obtain a permit from a state regulator before the construction of any new or modified stationary sources of air pollution i. Interpreting the above statute, the EPA promulgated a new regulation interpreting what "stationary source" meant ii. EPA bubble policy - if a place has a bunch of the same structure and they make changes to one that will not increase the emissions of the plant as a whole, they do not need to seek review b. NRDC challenged arguing that the word "source" should be interpreted as each individual producer (this is a substantive challenge rather than a procedural challenge) i. Relying on APA § 706(2)(c) ii. Argue that the agency misinterpreted Congress's statute and therefore did not have the authority to promulgate this rule and it was invalid c. Court of appeals agreed with the NRDC, SC says they should have deferred to the EPA interpretations

Exceptions for Rulemaking

a. APA § 553(a) - This section applies, according to the provisions thereof, except to the extent that there is involved— i. a military or foreign affairs function of the United States; or ii. a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. b. APA § 553(b)(3) - Except when notice or hearing is required by statute (i.e. where APA §§ 556 and 557 apply), this subsection does not apply— i. to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or ii. when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable (bad for the agency), unnecessary, or contrary to the public interest (bad for the public).

Formal Adjudication

a. APA § 554(b) - Persons entitled to notice of an agency hearing shall be timely informed of— i. the time, place, and nature of the hearing; ii. the legal authority and jurisdiction under which the hearing is to be held; and iii. the matters of fact and law asserted. iv. When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives. b. APA § 556 c. APA § 557

Agency Inaction

a. APA § 706 - review an action...unreasonably delayed b. Unreasonable delay can be measured by the APA standard of reasonable time, can also be measure by the enabling statute or the empowering legislation (Congress sometimes imposes a timeframe in which certain decisions must be made)

Notice Requirement for Rulemaking

a. APA §553(b) - Notice includes: i. Time, place, and nature of any proceedings ii. Reference to the legal authority (enabling statute, CAA, etc.) iii. Either the terms/substance of the proposed rule or a description of the subjects and issues involved (agencies typically just include the text of the proposed rule) b. Purpose - need to allow interested persons the opportunity to tell the agency what they think of the proposed rule c. Rule - Must be sufficient to fairly apprise interested persons of the issues involved, so that they may present responsive data or argument

HYPO 5-3: a. Bureau of Land Management b. Exchange federal lands for non-federal lands where the public interest is served by the transfer and the value of the private land is at least equal to the public land c. Sierra Club owns land and does not want it exchanged so challenge the appraisal as outdated (if the value is wrong, the exchange may be invalid because the value needs to be equivalent) Is there implicit preclusion of judicial review?

a. Agency arguments: i. Focus on Block - fairly discernable in statutory scheme that Congress intended no judicial review ii. Analogize - the RE can only get arbitration and they have more at stake, so why should the general public have easier access to the courts iii. Factors 1. Efficiency - satisfied by arbitration 2. Congress may intend for quick/inexpensive resolution b. RE Arguments: i. Focus on Abbott ii. "serves public interest" - so the public needs greater access to the courts iii. Providing arbitration for one scenario does not mean that judicial review is precluded in a different situation iv. Block was much more complex than this, judicial intrusion would not be detrimental to the entire statutory scheme here v. Transfer of land is much more discrete than an entire market milk price vi. Land valuation may be more in the court expertise c. Assuming they can get judicial review, what standard should apply? i. Is this a QOL or QOF? ii. QOF (difference in opinion of what the land is worth) so apply APA §706(2)(A) iii. It may be considered a mixed question of law and fact, and if so, then turn to the Mead Mess and decide between Skidmore and Chevron deference

Judicial Review of Substantive Violations - Statutory Interpretation

a. Agency interpretation of the statute they administer (argue that they interpreted Congress' intent wrong) b. Agency enactment of a substantive rule (apply the arbitrary and capricious standard) c. Can seek judicial review of Informal Rulemaking under APA § 706(2)(c) d. Was the agency action "in excess of statutory jurisdiction, authority, or limitations or short of statutory rights"

HYPO 2-5: a. Want to get vegetarian meals - updating meals from 1946 b. Beef industry argue that they were not given sufficient notice that their interests would be on the chopping block c. Purpose of the statute is to safeguard the health and safety of children d. The proposed rule included the background and preamble

a. Analyze under 553(b): i. The facts do not establish whether they named these things, but this is usually not an issue ii. Reference to the legal authority is in the background of the legislation iii. Notice? b. Arguments for the beef industry that the notice was insufficient: i. Is the final rule a "logical outgrowth" of the proposal? 1. Does it materially alter the proposed terms? 2. Does it substantially depart? ii. Difference between this and chocolate milk - beef is not fully removed, they just added mandatory vegetable meals iii. But nothing in the proposal mentioned vegetarian meals iv. Just because the proposal said "high cholesterol foods are bad" did not put the beef industry on sufficient notice because it is too general (plenty of foods are high cholesterol besides beef) v. There is a sudden change from a historical norm (beef was already approved just like chocolate milk was always approved) and now there is a random change c. Arguments for the Agency: i. How is this different from the chocolate milk case? ii. The agency is requiring some vegetarian meals and the plans always said that vegetables were a required part of the diet iii. The issue always existed, just no one thought of it until now iv. Cholesterol argument v. Beef is not removed completely vi. In the chocolate milk case the proposal included implicit and explicit approval of chocolate milk and then did a 180, here they did not endorse either, just sent it

Process of Evaluating Rulemaking

a. Are you dealing with an agency as defined by APA § 551 b. Did the agency action here actually result in a rule as defined in APA § 551(4)(general applicability and future effect - can sometimes apply to a particular individual or entity, but it is still drafted to have genearl effect) c. Did this rule fall under an exception (APA §§ 553(a); (b)(3)) d. Is this subject to additional hybrid procedures? i. Enabling statute? ii. Agency rules? iii. Executive order? e. Can you use judicial review? (APA §§ 704, 706) f. Does this fall under an exception to judicial review? (APA §§ 701(a) and 704)

Northern Pipeline (Judicial Delegation)

a. Bankruptcy case, involved private rights, so the Bankruptcy Court lacked authority b. Congress amended the Bankruptcy law to hold that Bankruptcy judges will now be appointed by and monitored by Article III judges and could then decide "core issues" to a bankruptcy case

When to use Skidmore v. Chevron Deference

a. Chevron: i. "force of law" test ii. If the agency is given the power to use relatively formal or informal procedures and does so (formal and informal rulemaking, formal adjudication) b. Skidmore: i. Opinion letters ii. Policy statements iii. Interpretive rules iv. Agency manuals v. Enforcement guidelines

Substantive laws in play in Fund for Animals

a. Clean Water Act b. Environmental Safety Act c. Both regulate environmental impacts but neither are completely substantive, they have procedural qualities d. EX. The Army Corps of Engineers is only permitted to grant a permit if the proposed discharge is consistent with a regulated section (a certain amount of toxins) - substantive e. Depending on the quality of the project, you may have to prepare an Environmental impact statement - procedural

Arkansas Power and Light Co. v. Interstate Commerce Commission

a. Coal burning utilities petitioned the ICC to institute rulemaking to collect certain data to implement its responsibilities (set rates that a railroad can charge to shippers as opposed to evaluating rates on a case by case basis) b. Reasons to not require the rulemaking: i. Congress has not evinced any intent to require a rulemaking proceeding ii. Inconsistent with the design of the Act to minimize the need for regulatory control iii. The amount of information necessary would be enormous and enormously difficult to gather iv. Making this assessment in individual cases is more productive and efficient than a rulemaking c. It is not unreasonable for the ICC to conclude that development of a nationwide database is unnecessarily cumbersome d. The court will compel an agency to institute a rulemaking proceeding only in extremely rare circumstances

Abbott Lab v. Gardner

a. Congress amended the FDCA to require manufacturers to post the name of the drug on packaging so people would know that name brands and generic were basically the same b. Implicit Preclusion - Agency argues that clear and convincing evidence should be the standard that they intended preclusion c. Congress provided certain review for other regulations and not this particular one under the statute d. Need to consider the entire legislative scheme as a whole e. "The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent."

HYPO 3-5: 1. Jeremy wants more process: a. The presence of an attorney b. The ability to call witnesses 2. Apply Mathews steps - consider Horowitz Wanting the presence of an attorney?

a. Consider what he is actually arguing, he is not arguing whether he did it or not, he is arguing the nature of what he did as plagiarism - this can be a nuanced argument that would merit the need of an attorney (Codd) i. Also like Codd - he would be required to disclose this forever after b. His transcripts to apply to new law schools, and his application to the bar would be affected c. Osteen: i. There was no attorney required here even with pending criminal charges so Jeremy may not have a good argument ii. Here there is a permanent deprivation, where in Osteen it was only a two-year expulsion iii. Osteen had already pled guilty - there was really no benefit for an attorney to understand legal standards, any lay person could argue what kind of sentence they think they deserve iv. Jeremy did not plead guilty and he was contesting the nature of his action - needs an attorney to make the legal arguments v. It is much more difficult to argue whether a rule has been violated than it is to argue what sentence you think you deserve d. Any arguments under Factor 3? i. How would Jeremy paying for an attorney make it harder for the school? ii. The school may then feel pressured to get their own attorney iii. Newman - the "cost of judicializing"

State Farm Holding

a. Court finds that the decision here was A&C, why? i. They did not even consider airbags before making the change ii. They did not consider the differences between detachable v. non-detachable (just because detachable belts can be removed does not mean that the agency cannot require non-detachable belts) iii. The explanation provided for non-detachable was not good enough (it was plausible, but under "hard look" review, there needs to be more) b. Remedy = remand to the agency to provide better reasoning

Mead Test

a. Did Congress expect the agency to be able to speak with the force of law? b. If there was not formal procedures, did Congress establish their intent by some other indication of comparable intent." Factors to consider: a. Degree of the agency's care b. Consistency c. Formality d. Relative expertness e. Persuasiveness of the agency's position f. Thoroughness evidence in its consideration g. Validity of its reasoning

Process of Evaluating Adjudication:

a. Did the agency action here actually result in an order as defined in APA §§ 551(6)-(7) (the whole or part of a final disposition (result of adjudication) other than rule making but including licensing) b. Did this order fall under an exception (APA § 555(a)) c. Is this subject to additional hybrid procedures? i. Agency mandate ii. Due Process Clause iii. Agency Rules iv. Executive Orders d. Can you use judicial review? (APA §§ 704, 706) e. Does this fall under an exception to judicial review? (APA §§ 701(a) and 704)

US v. FL East Coast Railway

a. Did they hold a proper hearing? They did not allow cross-examination or oral argument, only allowed writings and other procedures b. What does the work "hearing" mean for rulemaking as opposed to adjudication c. The word "hearing" in the Interstate Commerce Act did not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency decision maker d. Even though the word "hearing" implies in person, why does it make sense to allow a paper hearing? i. Under APA §556(e) decisions must be based on the Record ii. All of the paperwork is going to be gathered anyway so why require an in person meeting first

Yepes-Prado (Judicial Review of Findings of Fact)

a. Discretionary waiver b. Agency must explain its decision (not providing an explanation must be A&C) c. Here they had standards for "discretionary relief" - cancellation of removal d. Agency did not perform a full weighing of all the factors (only considered the adverse factors)

Doe v. Webster

a. Employee terminated due to their sexual orientation b. Statute left termination to director discretion and he could decide to terminate someone whenever it was in the best interests of the United States c. Completely discretionary even with agency action d. Could still get review under the Constitution (Scalia disagree - how can you say its reviewable and not at the same time) e. Section 701 says "by law" - there is other controlling law besides the enabling statute, namely the Constitution

Why do we defer to agencies when talking about a statute just because it is one that the agency administers?

a. Expertise theory - the agency is created specifically to handle this and they understand the issues better than the court would b. Delegation theory - Congress created the issue and purposefully left it ambiguous because they wanted the agency to be able to make the rules, not the courts

HYPO 6-2: 1. Chemical company, allege the arbitration violates Article III 2. Does the delegation of judicial authority to an agency arbitrator violate Article III? Structural Rights Argument for the Agency

a. Extent to which the essential attributes are still reserved for Article III judges: i. There is still judicial review available (so it does not completely destroy the structure) ii. Compare to Shor iii. Is the claim at issue "wholly independent" OR is it "squarely within" the statutory scheme iv. The compensation scheme here is provided by federal law b. Origins and importance of the rights adjudicated: i. This is between two private entities ii. The right is a little les private here than compared to Shor so probably would be fine c. Concerns that drove Congress to depart: i. The prior scheme led to a lot of litigation (cost/efficiency?) ii. Effect of litigation stopped registration of any pesticides at all which is bad iii. There are probably many valid arguments in favor of the agency's argument

HYPO 2-6

a. Facts from 2-5 b. People want to meet with agency head after comment period had closed but before the rule is published, can they? c. Check Constitution, APA, Internal Rules, Enabling Statute d. Here the facts do not state anything concerning an internal rule or enabling statute issue e. Constitution applies more to adjudication f. APA does not prohibit ex parte communications for informal rulemaking

Rulemaking Record

a. Formal Rulemaking requires a record as defined in APA § 556(e) b. Informal rulemaking - there are no specific rules as to what can(not) be included i. Not limited to the comments submitted in choosing what type of rule to adopt ii. Can rely on any relevant information that comes to its attention iii. Record = information that the agency actually considered in making the decision

Perry v. Sinderman

a. Hired someone on a one-year contract and then renewed for four years b. At the end of the four years, they did not renew again and did not provide notice or reason c. Violated his due process rights because they had fostered a binding understanding fostered by the college administration d. Legitimately relied upon an unusual provision that had been in their Faculty Guide - equivalent of a tenure system e. There was a past practice of maintaining employment on an implied contract absent egregious teacher behavior f. Remanded to the lower court to decide if under state law, Sinderman had such an implied contract he would have a legitimate claim of entitlement that would trigger due process protections g. Distinguish from Roth: i. Roth - explicit contract and still no DPC violation ii. Here there was no explicit contract, but there was a DPC violation because of the expectations of the parties

Types of Adjudication

a. Informal - APA § 555(e) b. Formal - APA §§ 554(b), 556, and 557

Different Procedures for Promulgating Rules

a. Informal - APA §§ 553(b)-(d) b. Formal - APA §§ 553(b)-(d), 556, and 557 c. Also Hybrid rulemaking which is considered a more formal version of informal, not a less formal version of formal d. Congress is free to enact further procedures that an agency must follow and the agency can also impose them on themselves (but once they do they cannot later decide not to follow them) e. Courts are not permitted to regulate agency action or impose further procedures

HYPO 5-1: Humane ways to house animals Need an individual member with sanding soyoucan representationallyhavestanding

a. Injury in fact - individual who went to the zoo and then went into work with primates, and now plans to work at a zoo with primates (could possibly just say someone has tickets to visit the zoo, but a research/employment argument may be stronger) i. Need to establish continuing/future injury ii. Need well documented evidence that you plan to continue returning to the zoo to see the apes together iii. If we were considering research - much harder to establish because you would need someone that actually has access to the research facility and they are very careful and limit who they let in b. Causation - actions of zoo/research facility = fairly traceable to the government/government decision fairly traceable to the injury that the member would suffer i. Government must be causing the harm ii. Statute requires individual cages be prohibited and the agency by passing this regulation violated that and caused your injury c. Redressability i. Favorable court decision would likely redress the injury - likely to cause the agency to prohibit individual cages and this would address your future interests in seeing the apes ii. Likely that the RE would obey? 1. What if the zoo refuses to comply and says it is too costly 2. Likelihood- it is not dispositive whether the RE actually would not comply or would refuse to comply iii. What if the zoo just sells all of the apes and shuts down, does this actually redress? - yes because the particular injury was that you did not like seeing them housed individually, and now you won't anymore

HYPO 2-7

a. Is the Regulatory Flexibility Act triggers? i. Rule requiring 5 vegetarian lunches ii. Flex analysis is required whenever the rule...(127) iii. Section 603(a) - proposed rulemaking (triggered if the action falls under 553 requirement for proposed rulemaking - informal N&C) iv. 601(1) - any executive or independent agency v. 605(b) - UNLESS there is no significant impact on a substantial number of small entities: 1. Includes government jurisdictions under 6011(6) 2. Could interpret this to include school districts vi. Requirements under 603 and 604 b. Is Executive Order 12866 triggered? i. This has no provision for judicial review ii. 3(b) - limited to executive agencies (which would include the department of agriculture here) iii. 6(a)(3)(B)-(C) - "significant" regulatory action iv. 3(f)(1) - definition of significant

HYPO 1-2: 1. Army Corps attorney confers with caselaw - the prior interpretation of wetlands included any that were visited by migratory birds because they would affect interstate commerce - the later interpretation would not include non-navigable wetlands just because of the birds 2. Issued an internal memo indicating that the decision did not decide the issue of whether the wetland would need a permit if its destruction would otherwise affect commerce 3. The memo purported to issue an interpretation that would still require a permit if the destruction would affect other recreational activities

a. Is this an order? (check APA § 551(6)) - the result of a "final disposition" b. If this is an order, what procedures are required? i. Is this agency allowed to conduct adjudication based on their enabling statute? ii. If yes, should they follow informal or formal adjudication? 1. There is a preference towards formal, but it would depend on the statute they are acting/regulating under 2. Assume informal here, so check APA § 555(e) a. This is just issuing a decision on a permit, so likely informal b. All they need to do is provide prompt notice with grounds for the decision 3. Here, everything seems to be satisfied (could always wonder what is "prompt"?) iii. Because the procedures required for informal adjudication were met, the agency's decision to deny the permit was made procedurally correct so they either need to seek a new permit and meet the requirements for the Army Corps to say yes, or challenge that entire memo as incorrect 1. This would require suing the agency 2. Very large cost with potentially no redress and all the costs are front loaded c. No N&C was followed but the memo was intended to be adhered to, is this valid/binding?

HYPO 6-2: 1. Chemical company, allege the arbitration violates Article III 2. Does the delegation of judicial authority to an agency arbitrator violate Article III? Personal Rights Argument for the Agency

a. Issue that the arbitrator is hired by the agency, BUT at least they chose an arbitrator governed by strict rules and they are more independent than using an agency ALJ b. Analogize to Shor (plaintiff waived rights because she did not challenge when they raised the counterclaim) - here, the RE knew there would be an arbitrator when they applied for the license, but they did it anyway, so could be considered a waiver

Does the Mead Court use the same FOL test as Chevron?

a. It is consistent but it adds to it b. FOL is what governs (where formal procedures are followed then definitely use Chevron) c. Acknowledges that it is possible that Chevron could apply even without formal procedures d. Congress can establish their intent in other ways i. How binding is the agency action (is it an authoritative statement of the agency) ii. How many opinions has it issued and are they consistent?

HYPO 3-4: 1. Facts: a. Law student accused of violating the honor code through plagiarism b. Case evaluated by an honor committee which recommended a one-year suspension c. The dean decided to expel him instead d. He was allowed to go before the committee and plead his case, but was denied: i. His requests to have counsel present; ii. Bring in outside testimony; or iii. Have a court of his peers If both interests are implicated, what is the scope of the protection?

a. Just because he has an interest does not mean that the court will void the agency action b. The school may have actually given enough procedure c. APA requirements v. DPC Constitutional requirements: i. Constitution = procedural floor ii. APA informal is a step up from the Constitution and formal procedures provide even more protection than that iii. There could also be other hybrid procedures that provide more protection 2. Mathews Factors: a. Factor 1 - nature of the interest affected b. Factor 2 - risk of erroneous deprivation i. Mathews - different procedure sought was an evidentiary hearing with live witnesses and an opportunity for cross examination ii. Court hold that the procedure sought would not improve the quality of the decision very much iii. What kind of cases would make you think that risk of erroneous deprivation is higher and more procedure would actually solve the issue (immigration?) 1. Decisions that hinge on credibility 2. Discretionary decision making c. Factor 3 - Government Interest i. Consider high volume types of adjudication ii. Ex. Immigration, benefits, etc.

Shands v. City of Kennett

a. Must be an untrue charge b. An adverse impact on job opportunities occurs if "untrue charges would stigmatize so as to seriously damage standing in communication, or foreclose, freedom to take advantage of other employment opportunities."

US v. Allegheny-Ludlum Steel Corp

a. Not going to require formal rule-making under 556 and 557 unless the enabling statute pretty much says exactly the same words as the APA requirement b. Read the requirement very narrowly c. "need be applied only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be "on the record." d. You need the "magic language or sufficient" e. Weird standard because the statute at issue here was promulgated before the APA so how could it have had mirroring language f. Why read the requirement so narrowly? i. Consider the plain meaning of "hearing" (seems like a trial-esque procedure) ii. Probably want more clear congressional intent - hearing seems judicial so why require it for just a rule iii. There are certain statutes that do directly quote the APA so if Congress did that in those situations, then they knew how to do that here and decided not to (probably did not want formal rulemaking)

HYPO 3-5: 1. Jeremy wants more process: a. The presence of an attorney b. The ability to call witnesses 2. Apply Mathews steps - consider Horowitz Wanting to be able to call witnesses?

a. Not much case law, can still apply Mathews b. Interest affected = the same (expulsion - impact of a new school and future employment) c. Risk of erroneous deprivation and will more procedure fix that issue? i. Purpose of a witness is to establish the facts ii. Jeremy disputes the characterization of the facts as plagiarism at all (not the actual facts of what happened) d. Government interests implicated? i. Will always argue that it will be inefficient or costly ii. Fully judicializing - cost for any future education based issues

Players in Fund for Animals

a. Plaintiff = Fund for Animals i. Interests? - protecting animals and their habitats ii. Claim that the agency should not have issued a permit and they should not have made the smaller decisions leading up to issuing the permit iii. How did they further their interests? 1. There was a Notice and Comment period - presumably submitted comments 2. The Fish and Wildlife Service issued a Biological Opinion and Findings - likely responded to this b. Defendant = Rice (director of the Army Corps of Engineers) i. Interests - serving the public and ensuring that permits are granted pursuant to the procedures ii. How did he further this interest? 1. Notified the impacted parties (EPA, FWS, etc.) 2. Allowed a Notice and Comment period 3. Prepared an environmental assessment and statement of findings c. Regulated entity = Sarasota county (cannot file suit against them because they have not violated any procedure or policy) d. FWS - interest in protecting the wildlife and they furthered this by issuing a Biological Opinion e. EPA i. Interests - want to protect the environment and ensure that their laws are adhered to ii. Further by issuing guidelines and reviewing permit decisions (here they exercised this and initially opposed to the issuance of the permit, only approved it after amendments were made to lessen the environmental impact)

Redress-ability in Lujan

a. Plaintiff has a greater burden because a third party is involved b. There is no guarantee that a third party will actually adhere to a decision that impacts the agency (and if the agency chooses to address the issue via adjudication then it would not be applicable to every regulated entity) c. Independent discretion? d. Need to establish that a favorable court decision is likely to redress your injury (is the RE likely to comply with the law) e. Even if the Secretary would recommend against funding, there was no guarantee that any injury that already occurred would be fixed f. Even without USAID funding, their contribution was so minimal that their participation likely would not have stopped the project g. Even if the consultation was required, here was no guarantee that the project would not get recommended

Formal Procedures under APA 556-557

a. Procedures that resemble a civil trial (more common for adjudication) b. APA §553(c) - When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 USCS §§ 556 and 557] apply instead of this subsection.

Wisconsin v. Constantineau

a. Public drunkards b. Advertisements not allowing them into certain stores, bad for their reputation c. May not require adverse impact on job opportunity d. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, due process is essential."

MVMA v. State Farm Facts

a. Reasonable and provide a rational explanation b. The insurance company wants more safety so they can spend less c. Modified standard 208 - mandated the phasing in of passive restraints (systems that would satisfy = airbags and passive belts, the choice of which system to install was left to the manufacturers) d. The final rule rescinded the passive restraint requirement: i. No longer able to find that the automatic restraint would produce significant safety benefits ii. Automobile manufacturers planned to install the automatic seatbelts in approx. 99% of all new cars - The life-saving potential of airbags would not be realized (they expected the manufacturers to do it anyway so why govern it) iii. Agency concluded that there was no longer a basis for reliably predicting that the standard would lead to any significant increased usage of restraints at all (the belts would/could be detached so they wouldn't actually increase safety)

Main Agency Functions

a. Regulate Private Conduct - can enforce their own regulations and other government laws (can use fines or can file suit against them under a government law) b. Administer Entitlement Programs - Focus on dispensing federal and state funds for a specified purpose to the proper recipients c. Licensing d. Other Duties i. Provide public services ii. Manage public lands (ex. State parks)

Adequate Explanation

a. Requirement that agencies provide adequate reasons for the rule b. When an agency lacks adequate reasons its action is A&C - still usually remand to the agency to make a new determination rather than strike down the rule c. Agencies have developed the practice of providing their explanations in writing as part of the final rule d. The court must ensure that the agency has given reasoned discretion to all of the material facts and issues - Exercise this role with particular vigilance if it becomes aware that the agency has not really taken a hard look at the salient problems, and has not genuinely engages in reasoned decision making

Statement for Basis and Purpose

a. Respond to significant public comments b. Explain how it meets the statutory requirements and purpose c. Explain the connection between the rules and the relevant data d. Consider significant alterations from what they originally proposed and explain why the change e. Explain any change in course

Heckler v. Chaney

a. Respondents sentenced to death and challenge the use of certain drugs as insufficient for executions b. Presumption for discretion where there is a necessity not to act c. Here, because the FDA did not approve these, then they were required to do so before the drugs could be used for a different purpose d. Issue - whether it was the agency's discretion to bring or not bring an agency enforcement action i. Similar to prosecutorial discretion ii. Decision not to act is presumably not reviewable e. Factors: i. Judicial second guessing unwarranted because this should be executive authority? ii. Affect people's rights?

MA v. EPA

a. Sets the arbitrary and capricious standard - is what the agency did actually ridiculous/irrational? b. Rulemaking petition asking EPA to regulate greenhouse gas emissions from new motor vehicles c. EPA denied the petition: i. Believed that the Clean Air Act did not authorize it to issue mandatory regulations to address global climate change ii. Even if it did have the authority, believed it would be unwise to do so 1. They reviewed the facts differently than the party 2. Could also argue they do not have the proper resrouces d. Under the terms of the CAA, the EPPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change e. The EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change (the agency interpreted the law wrong, that is arbitrary and capricious) f. The court holds that the EPA does have authority under the CAA to act and therefore were required to do so, holding basically states that the EPA gave no reasons why they did not act (no reasons why they should be exempt from the CAA requirement) not that they gave reasons that were inadequate

Block v. Community Nutrition Institute

a. Standard is NOT Clear and Convincing evidence - need to decide whether the implicit preclusion is fairly discernable (more favorable to the agency) b. Whether the ultimate consumers of dairy products may obtain judicial review of milk market orders issued by the Secretary of Agriculture under the authority of the Agricultural Marketing Agreement Act c. "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." d. There were specific instructions for handlers and producers to get review, but not consumers e. Whether Congress intended for that class to be relied upon to challenge agency disregard of the law - the structure of this act indicates that Congress intended only producers and handlers, and not consumers, to ensure that the statutory objectives would be realized f. Consider cost, expertise, efficiency, and resource determinations g. It would be outrageous to allow consumers to go to judicial review, when they are not allowed to participate prior, and the RE is required to use administrative review instead

HYPO 5-3: a. Bureau of Land Management b. Exchange federal lands for non-federal lands where the public interest is served by the transfer and the value of the private land is at least equal to the public land c. Sierra Club owns land and does not want it exchanged so challenge the appraisal as outdated (if the value is wrong, the exchange may be invalid because the value needs to be equivalent)

a. Step 1 - characterize the agency action: i. No general applicability, only applies to this land ii. Action = valuation iii. Seems like an informal adjudication: 1. Check the enabling statute 2. Is the language "after a hearing..." there (this still is not determinative because this language is sufficient but not necessary) b. Step 2 - does the Sierra Club have standing? i. Injury in fact - they would lose land (aesthetic pleasure) - would need to have an affidavit of a member stating that they had used the land and they had concrete future intent to continue using it ii. Causation: 1. By changing to landfill, they an no longer make use of this land 2. This has to be fairly traceable to the government action (if the valuation is wrong then the statute does not permit exchange and therefore...) iii. Redressability c. Would need to check the statutory language to see if there is explicit preclusion, we do not have that indicated here d. Implicit preclusion? (apply Abbott and Block)

HYPO 5-4: a. DOT - regulation stating that licenses are not available for persons with epilepsy b. DOT refuses a waiver to your client, he is now alleging that this regulation violated their enabling statute and the Rehabilitation Act c. DOT move to dismiss and argue that this decision was committed to agency discretion

a. Step 1 - characterize the agency action: i. There is specific applicability to your client ii. Check the enabling statutory language regarding whether it would be considered formal or informal adjudication (maybe a license?) b. Step 2 - does the National Epilepsy Foundation have associational standing? i. Does your client have an injury in fact? (yes damage to job opportunities) ii. Causation - because of the agency denial, he cannot get a job iii. Redressability - assume satisfied iv. Is this related to the purposes of the Association v. The suit is not for damages c. Step 3 - Is there any explicit/implicit statutory preclusion - would need the statutory language which we do not have d. Step 4 - is this committed to agency discretion? i. DOT arguments: 1. Want to preclude judicial review 2. Statute = v. broad standard which does not give them something to review by 3. Court is evaluating abuse of discretion, but if there is no law to judge it by, then how do you know whether the agency abused their discretion? 4. This is an agency decision not to act, presumption against judicial review ii. Client Arguments: 1. Argue under Webster that he is being denied a Constitutional right 2. Argue that even though they are denying (electing not to act) the act of denying is enough to judge by a standard e. Assuming this does go to court, how would it be reviewed? i. Is it a QOL or a QOF? ii. QOL - but the agency is interpreting the Rehabilitation Act which is not a statute that it administers so the review would be De Novo

HYPO 3-6: 1. Was the dean biased or did Jeremy get a neutral decisionmaker? 2. Larkin - combining the investigatory and adjudicative functions does not automatically mean no neutrality a. The fact that the adjudicator reached a conclusion about a legal issue even before they got there did not necessarily prejudice them b. There needs to be evidence of actual prejudice 3. Does the fact that the dean was connected to or selected the honor court members and made the final decision, is there a problem of neutrality? (probably not) 4. Does the fact that the dean claimed it was "plagiarism" before the hearing was even held, lead to a problem?

a. TEXACO (278) b. A neutral decision maker would not decide the fact of a case before the adjudication c. Here, the teacher described the facts to the dean and the dean said that those facts, as described, would be plagiarism (he was not making a conclusion about Jeremy, he was applying the Honor Code rules to the facts and assuming they are true, concluding that, as presented, that would be plagiarism d. This is a mixed question of law and fact and is really the kind of decision that judges make every day

What is the proper remedy for when an agency declines to issue a rule making?

a. The court could compel a rule (very rare - the court does not know the agency's priorities and resources as well) b. Could remand the decision back to the agency

Whitman v. ATA

a. The section required the EPA to set "ambient air quality standards the attainment and maintenance of which in the judgement of the Administrator, based on the criteria documents of section 108 and allowing an adequate margin of safety, are requisite to protect public health" i. Failed to state intelligently how much is too much ii. EPA's interpretation (but not the statute itself) violated the nondelegation doctrine - SC Disagrees b. SC Analysis i. Apply the "intelligible principle" test from Hampton - are they directed to conform to something, is there enough guidance ii. In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency 1. Check the statutory language, purpose, and legislative history 2. Basic statutory construction iii. The section of the CAA at a minimum requires that for a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, the EPA must establish uniform national standards iv. The scope of discretion here is within the outer limits of the nondelegation precedents c. Court finds that there is an intelligible principle: i. "requisite to protect the public health" ii. Question what bounds this principle actually imposes: 1. Requisite = sufficient but not more than necessary 2. There is some limitation

Causation under Lujan

a. The statute at issue in Lujan is a new interpretation that you do not have to consult the agency before taking action abroad b. Lujan wants the RE to have to consult whether they are taking domestic or foreign action c. Plaintiff rely on a Nexus theory d. Argue that if consultation was required, then the Secretary would recommend against funding, and without funding the elephants would not be affected

Opportunity for Comment in GeneralIf the

a. The time frame would be listed in the notice of proposed rulemaking b. In general: i. No requirement for an oral presentation or hearing ii. APA does not mandate any specific time period for this opportunity iii. Final rules must be published 30 days prior to their effective date iv. Congress has often chosen to add hybrid requirements (check enabling statute) v. Most agencies will provide for 60 days or more

How do Northern Pipeline and Shor apply to Stern v. Marshall?

a. There is a private claim between private parties b. Does this fit within the public rights exception? i. The court decides no ii. Not a close enough link between the state law claim and the claim under the federal statutory scheme 1. There is no need for agency expertise to make this decision 2. Cost or efficiency concerns?

HYPO 3-6: 1. Was the dean biased or did Jeremy get a neutral decisionmaker? 2. Larkin - combining the investigatory and adjudicative functions does not automatically mean no neutrality a. The fact that the adjudicator reached a conclusion about a legal issue even before they got there did not necessarily prejudice them b. There needs to be evidence of actual prejudice 3. Does the fact that the dean was connected to or selected the honor court members and made the final decision, is there a problem of neutrality? (probably not) 4. Is it a problem that Jeremy did not get to address the ultimate decision maker (the dean)?

a. There is no case on point but consider the Mathews balancing b. Private interest affected is very high (expulsion, future education, future career) c. Risk of erroneous deprivation and value of additional procedures: i. Facing the decision maker for this decision which has a higher risk of erroneous deprivation - it could have value to Jeremy and value in fairness ii. Redundant because the committee already addressed the issue? iii. What is it about this kind of decision that could benefit from more process or lead to more risk of erroneous deprivation? iv. More process does not automatically mean more accuracy but here the decision maker has a lot of discretion and Jeremy could explain the mitigating circumstances d. Government interest - efficiency and cost

Davila-Bardales (Judicial Review of Findings of Fact)

a. There was a confession from a minor to an INS officer and they used that statement to deport the minor b. In the past, these kind of statements were examined in light of other elements, they did not do the same process here so is that A&C? c. Consistency arguments (why have there been some airmen granted the waiver in the past that also admitted their sexuality but they are denying his here) d. If you do not treat like cases alike, then you can have a consistency/A&C argument

Board of Regents v. Roth

a. There was no property interest here because he did not have a legitimate expectation in continued employment b. Cannot rely on a unilateral expectation c. Need legitimate claim of entitlement grounded in law "defined by existing rules or understandings stemming from sources such as state law." d. A person clearly must have more than an abstract need or desire, more than a unilateral expectation

APA 554(a) - Exception for Formal Procedures in Adjudication

a. This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved— i. a matter subject to a subsequent trial of the law and the facts de novo in a court; ii. the selection or tenure of an employee, except a [an] administrative law judge appointed under section 3105 of this title [5 USCS § 3105]; iii. proceedings in which decisions rest solely on inspections, tests, or elections; iv. the conduct of military or foreign affairs functions; v. cases in which an agency is acting as an agent for a court; or vi. the certification of worker representatives.

Constitutionality of the law - A law that would rescind the current system and provide instead that the Attorney General may recommend to congress suspensions of deportations, which might be granted by Congress enacting law suspending deportations

a. This was the original system before the system overruled in Chadha b. Congress must take a new legislative act for each deportation - this would be inefficient but not unconstitutional

Meyers (Liberty Interests)

a. Those privileges long recognized as essential to the orderly pursuit of happiness by free men b. Government triggers due process protection when it denies or revokes a person's license to engage in a profession

Three Approaches to getting an agency to enact a rule

a. Top-down - Congress of the White House requests a rule (can threaten agency funding or put requirements in future legislation (ex. CAA requiring monitoring of greenhouse gas emissions) b. Bottom-up - someone within the agency makes a recommendation for a rule i. Identify a problem they want to fix ii. Hear about new scientific research iii. Observe the actions of other countries iv. Receive a recommendation from a private standard-setting organization c. Lobbying/Petition for rulemaking (outsiders request a new rule)

CFTC v. Shor

a. Two functions of Article III: i. Personal - protect the litigant's right to have claims decided before an independent judge ii. Structural - protect the role of an independent judiciary - Three Factors: 1. Extent to which the essential attributes of judicial power are reserved to Article III judges 2. Origins and importance of the rights adjudicated 3. Concerns that drove Congress to depart from Article III requirements b. In this case, the plaintiff was alleging that the state counterclaim did not arise from the federal statute and therefore could not be decided by an administrative agency c. Court decides that a State law counterclaim will not violate Article III where the above two functions are still honored d. Court Analysis: i. Factor 1 was still honored because the statutory scheme was such that if you consented to the federal claim being decided by an administrative agency, you also consented to it deciding related claims ii. Factor 2 was honored because: 1. There was a narrow issue that was an off-shoot of the federal claim 2. The origins of the rights here were judicial (so this actually did not weigh in the agency's favor) 3. Congress had a good reason here because of the cost and efficiency of claims

General Exceptions to Rulemaking Procedures

a. Under 553(a) you are completely exempt and have to follow no procedure, under 553(b) you are only exempt from some procedure if you can establish that you fall under the exemption at all i. APA §553(b) - exception for interpretive rules, statements of policy, administrative procedure, and good cause ii. BUT - If you are exempt due to one of these, then you can also argue that you are exempt from 553(c), 556, and 557 iii. The good cause exception argument is rarely accepted and even when it is, there is often the imposition of a time-limit allowing the agency to proceed without following procedure for some time and then requiring that they follow the procedure after a certain amount of time b. Regardless of if an exception applies, you still must publish a final rule in the Federal Register subject to 552

King v. Burwell

a. Way for courts to avoid Chevron deference in situations of "deep economic and political significance" b. Whether the Act's tax credits are available in States that have a Federal Exchange rather than a State Exchange c. The IRS interpreted the statute and said it would be available for both d. Challengers argue that states with a federal exchange should not be subject to the tax credit e. Chevron two-step - Whether the agency's interpretation is reasonable f. Some situations may require hesitation before concluding that Congress really intended to delegate the responsibility to the agency g. The tax credits apply to the entire country and are a lot of money and it involves a question of a deep "economic and political significance" h. The court basically decides the case at Step 1 - hold that Congress was not ambiguous in their language and therefore, the agency was not entitled to interpret it and get major deference from the court

HYPO 4-9: 1. Agency administering RESPA (consumer protection) 2. Prohibits kick-backs for mortgage brokers for recommending mortgagees take a loan from a certain bank a. Do not want an incentive for brokers to recommend risky mortgages just to receive compensation b. Conflicts of interest 3. Certain things are not prohibited kick-backs if they are compensation for bona-fide services (not just for a referral) 4. Whether a yield-spread premium is a prohibited referral? 5. The statutes do not define a referral fee but they do define a yield spread premium 6. YSP = difference between the interest rate the financial firm said it would charge the debtor and the actual interest rate the broker negotiates 7. Can be considered just compensation if the broker does not charge a separate fee 8. Facts here: a. Simmons paid a YSP on top of other direct fees - kickback? b. Wants to bring a class action but the policy says that it is fact specific: i. If we give Chevron deference, then you have to do a case by case analysis to determine which YSP's are kick-backs - then she could not bring a class action because each case would be different and she would not have a class of similarly situated plaintiffs ii. If they give Skidmore deference then they could potentially hold that all YSP's are kick-backs, and she would have a sufficient class for her class-action Should the policy get Chevron or Skidmore deference?

a. What kind of agency action is this? i. Not an order because it does not only apply to one entity (and it has a prospective effect) ii. It is a rule but no indication of N&C, so is it a valid NL Rule? 1. Bowen Factors for Policy Statement: a. Present Effect b. Restrictions decision makers discretion 2. Likely would be a valid PS iii. Not entirely necessary to decide PS/IR once you identify that it is a NL rule in the first place, whether it is a PS or an IR would not be a determinative factor in whether it would receive Chevron or Skidmore deference b. Because it is an NL rule there is no "force of law" so no automatic presumption for Chevron, is there any other indication of Congressional intent that Chevron apply? i. Mead: 1. Legally binding? 2. Authoritative statement of the agency? 3. Volume of promulgations like this one? ii. Barnhart: 1. It is not interstitial (major) so this would weigh towards Skidmore 2. There is high agency expertise - the policy statement was required to be prepared by staff consulted by counsel, and reviewed by the secretary (weighs toward Chevron) 3. Are the YSP's important to the administration of the statute as a whole? 4. Complexity of the legislation? 5. Length of time that the agency took for careful consideration a. Executive order 12866 applies here - because the decision effects a certain amount of money, it had to be reviewed by the Office of Management and Budget b. Would the fact that it was subject to hybrid procedures, even without formal procedures, mean that it should be entitled to Chevron deference

State Farm Court Analysis

a. Whether this decision to revoke the part of the rule was based on a consideration of the relevant factors and whether there has been a clear error of judgement b. Rational connection between facts found and choices made: i. Did the decision use non-statutory factors? ii. Did the agency entirely fail to consider an important aspect of the problem? iii. Is the explanation contrary to the evidence? iv. Is the explanation so implausible or can it not result from a difference in view/is a product of agency expertise?

HYPO 3-4: 1. Facts: a. Law student accused of violating the honor code through plagiarism b. Case evaluated by an honor committee which recommended a one-year suspension c. The dean decided to expel him instead d. He was allowed to go before the committee and plead his case, but was denied: i. His requests to have counsel present; ii. Bring in outside testimony; or iii. Have a court of his peers 2. Considering Meyer, Wisconsin, and Paul, would he have a liberty interest that is implicated?

a. Would need a "plus factor" other than just his reputation b. There has to be something extra that his dismissal from law school affects c. Being laid off is not enough (I.e. being removed from school is not enough) d. Could argue that it would cost him future admission to the bar, admission to other schools, and practice in the future

Challenging a Denial of a Rulemaking Petition

i. APA § 555(e) - Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial. ii. APA § 555(b) - ...With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. APA § 706 -review an actionunlawfully withheld

Why require standing, besides the Constitutional requirement

i. Adversarial system ii. Need to actually make them have skin in the game to make them want to pursue a litigation iii. Do not want courts making decisions in the abstract iv. Also important for access to the courts (protect those whose rights are not adequately protected by the legislative or the executive actions)

HYPO 3-8: i. Ranger dies in a car with a "guest" ii. Was he "on duty" or engaged in immoral activity at death rather than patrolling? iii. Two questions to decide whether his estate should get compensation from his employer: 1. What was he doing when he died? 2. Did his death arise out of employment?

i. Agency findings of fact: 1. Was he just working (likely not) 2. Was he on an enforce lull? a. There are more facts that support this b. If the agency concluded this, then the court could likely reverse the decision denying benefits even under substantial evidence review because there is nothing that says that he had no intention of working 3. Personal activity with no intent to work before or after? a. He was not in uniform, but the uniform was under his seat b. The woman was found undressed c. It was early in the morning (between 1 and 3 am) but there were no set hours of employment, and the kind of patrolling he was doing required some overnight observation d. The employer also anticipated night work because they provided him with a car that could be converted into a bed e. The employer had no rule against having "company" on duty f. The car was found in an area that did need patrolling ii. Considering the "arising out of" standards set in Evening Star and Durrah, there is likely support for his death arising out of the employment (what the agency really took issue with was the "immoral act" - would they really have denied the benefits if he had been found dead while reading a book?)

HYPO 2-4

i. Agriculture agency does not issue a new rule ii. How can we make this more favorable to bio-pesticides company? 1. Better application process 2. Want something promulgated that is "procedural" to avoid the N&C requirement iii. What are the EPA's changes? 1. How did the application process get easier? 2. Can now just apply and say you meet certain requirements a. Need to promise to later meet conditions (self-regulated/monitored) b. If agency does not respond to your application then you can just go ahead with your test iv. Is this reviewable under the APA? 1. APA 706(2)(D) - did not follow procedure required by law 2. Argue they did not follow the N&C requirement (if they were not actually excepted) v. How to argue that this is procedural - just dealing with the application, it is not saying anything about what is being regulated or what they can do to be approved, just how/when they can act vi. BUT the regular pesticide companies do not get the luxury of self-regulating

When an agency promulgates a rule that you do not like:

i. Argue that the rule as it applies to everyone should be abolished ii. Argue that in some way you are exempt from this rule iii. File a new petition to ask for a better rule

HBO v. FCC

i. Claim of ex parte comments relied upon during informal rulemaking ii. "Once a notice of proposed rulemaking has been issued, any agency official or employee who is or may reasonably be expected to be involved should refuse to discuss matters relating to the disposition of a rulemaking proceeding with any interested private party" iii. Nothing in the APA prohibits ex parte communications for informal rulemaking, BUT because of the possibility of judicial review, and the importance of the record for this, ex parte comments should be considered implicitly banned iv. One year after this case, the SC held in Vermont Yankee that courts could not impose further procedure on agencies (this kind of contradicts with holding in this case that ex parte comments should not be allowed even where the APA does not prohibit them)

Injury in Fact under Lujan

i. Concrete and particularized requirement ii. Actual or imminent harm (past action ad future intent) iii. Past exposure to illegal conduct is not enough iv. "Someday intentions" are not enough v. Allege frequent interference and more direct, ongoing injury

HYPO 4-6: Amending the employee manual and requiring OSHA inspectors to cite any employer that does not pay their employees for walk about time

i. Consider the definition of a policy statement: 1. Advise the public generally 2. Let everyone know that the agency plans to execute its powers in such a way ii. Consider the Bowen factors iii. The rule here does not have present affect and it does affect discretion because it raises a mandatory duty on the part of the OSHA inspectors iv. Does not announce a future intention v. N&C would likely be required

The standard for Ex Parte Communications - sources of law

i. Constitution - any limits? (probably applies more to adjudication) 1. Check Sangamon (110-12) 2. Valley - Constitution prohibits ex parte where there are convincing claims 3. DPC requires state action impinging on life, liberty, or property - could apply if you are dealing with a property interest in a license 4. DPC applies more to adjudication ii. APA 1. APA §557(d) - requirements for formal procedures: a. Ex parte comment defined in APA §551(14)(excepts status reports) b. When does the prohibition on ex parte start? (HBO - after the comment period has closed) 2. APA §553 does not explicitly mention ex parte comments in the context of informal rulemaking iii. Agency Internal rules

Stone v. FDC

i. Constitutional applicability in administrative issues ii. Does this rise to a DPC issue? iii. DPC issue generally arises when someone is not afforded notice and an opportunity to respond (where the agency action infringes on someone's "life, liberty, or property interests") iv. Relationship between DPC and ex parte communications - Ex parte communication is prohibited when the decision was based on ex parte communication and the other party did not get notice or an opportunity to respond

HYPO 4-5: OSHA walk about time - apply the Bowen "binding effects" test - a rule is legislative if: 1. It has a present effect; and 2. It restricts an agency decision maker's ability to exercise discretion 3. Also consider how the agency characterizes the rule, but this is not very weighty Believe that denying this pay is in violation of the OSHA Act

i. Could have promulgated a rule with N$C rulemaking - this may be preferable because it is easier to execute over time and would be binding against the entire industry, could be fairer ii. Could use adjudication - might be better in specialized circumstances to fill in gaps (but there is a concern for resources and expertise) iii. The rule they are working with here is not a narrow issue and it is not filling in a gap, assume there is no expertise or resources concern and assume there are many varying approaches to paying employees for this time so writing a broad rule would be difficult iv. Using a non-legislative rule: 1. Easier to complete because there is not N&C period required 2. The rule can be effective as soon as it is published in the CFR (whereas a legislative rule must be published at least 30 days before its effective date) 3. This is not binding, the agency would just have to hope that it encourages compliance (and even if they know some people will not comply, at least they have put notice out so no one can later claim surprise)

The Agency must consider all relevant matters presented to them during the notice and comment period...

i. Do ex parte communications count? ii. Formal rulemaking - can only consider the record from a hearing

If the opportunity for comment ends up being insufficient, what is the remedy? Why not just re-open the comment period?

i. Do not want to risk creating never-ending comment periods ii. Do not want to discourage the agency from seeking comments at all)

Sierra Club v. Costle Facts

i. EPA was the subject of ex parte contacts (over 300 comments) by interest parties after the formal comment period had ended ii. EDF's procedural objections stem from either: 1. Comments filed after the close of the official comment period 2. Meetings between EPA officials and various government and private parties interested in the outcome of the final rule iii. Plaintiff argues that the intra-executive meeting - when taken as a whole, were so extensive and had such a serious impact on the NSOS rulemaking, that they violated EDF's rights to due process in the proceeding and that these ex parte contacts were procedural errors of such magnitude that this court must reverse iv. Evaluate the various communications in terms of their timing, source, mode, content, and the extent of their disclosure on the docket in order to discover whether any of them violated the procedural requirements v. 1977 Amendments require the agency to establish a rulemaking docket for each proposed rule which would form the basis of the record for judicial review 1. This is an interpretation of a hybrid regulation from the CAA 2. The ex parte communications do not make the rule invalid per se, as long as the EPA makes a concise docket including any comments that are of "central importance"

NLRB v. Local Union No. 25

i. Employee alleging that the union was engaging in unfair labor practices by disfavoring him because he was not in the union ii. There was a provision in the union contract that said that anyone who was not a member of the union would be ineligible for referrals for a certain period of time following the termination of their employment iii. The judge concluded sua sponte that that provision was illegal iv. Appellate court holds that respondents did not receive the notice required by the APA and that the decision of the ALJ as well as the order of the NLRB Adopting that decision cannot stand

NPRA v. FTC

i. Enabling statute is very broad in defining "unfair practices" ii. FTC could: 1. Make a rule and define unfair practices 2. Could file suit against someone who they think is engaging in unfair practices and try to announce a policy 3. Could try to issue a non-legislative rule?

Court to agency review v. Agency Review of an ALJ

i. Even under SE review, the court can overturn derivative inferences if they find that the agency's conclusion is inconsistent with the Record ii. Testimonial inferences are more difficult because the reviewing court did not get to observe the testimony, but it is not impossible: 1. Would need to find that the basis for finding her incredible to be irrelevant (ex. "because she wore purple shoes") 2. Or did they make the determination for a discriminatory reason (race, religion, etc.) iii. Could the argument in the HYPO rely on Torres? 1. ALJ action does not equal a DPC violation 2. BUT there was enough evidence for them to overturn the ALJ's adverse determination for some kind of bias iv. Does the demeanor "brusque and opinionated" rise to the level of impermissible bias? 1. Bias against women 2. What does that quality really have to do with candor v. Even if the court did find bias or an impermissible decision, they likely would not remand because it is inefficient considering the volume of cases that ALJ's have to move through

HYPO 4-2: i. Check legal constraints on the agency's choice to use adjudication and seek a cease and desist: 1. Concern with the retroactivity of the policy (the definition RE wants was permissible) 2. Can the agency all of a sudden swap the rule around against a single defendant? 3. NLRB v. Bell Aerospace*

i. FTC Arguments for choosing adjudication: 1. Rulemaking could mean hybrid procedures - longer and more complicated (whereas adjudication could be quicker and better for the public) 2. Assume N&C is expensive and adjudication may be cheaper 3. Our facts are like the Bell Aerospace - here is "surplus" really a complicated rule and are there really a variety of implications - it seems like most dealers are just following the same idea and it is only calculating price points) 4. Does the agency have the experience or expertise to draft this kind of rule? ii. CB arguments that there are adverse effects on the RE: 1. Nothing in the facts suggests fines or damages 2. BUT if they say reimburse consumers - this would be a huge cost to go back and find all the consumers (especially on a "mom and pop shop") 3. Even if this is just a cease and desist, they are now going to lose money that they had been anticipating iii. A rule may be fairer because it is prospective and it would avoid the issue of an RE not getting notice iv. How should the agency respond to CB claim of new or unanticipated liability? 1. Is there really a surprise? 2. The language was ambiguous - so the RE should anticipate that maybe the FTC would interpret it differently than they do 3. There is legal authority for interpreting the language to mean the retail price rather than the wholesale price v. The abuse of discretion standard is still deferential and as long as there are no fines or damages and the agency is reasonable, the court is unlikely to overturn their decision

Professional Air Traffic Controllers v. FLRA

i. Federal employees forbidden from striking against their employer, the federal government, and denying their services to the public ii. FLRA shall revoke the exclusive recognition status of a recognized union or take any other appropriate action iii. PATCO strikes and their authority was revoked as exclusive bargaining representatives iv. FLRA hold a hearing with an ALJ to determine the nature extent, source, and effect of any and all ex parte communications and other approaches that may have been made to any member or members of the FLRA While the PATCO case was pending v. PATCO want to revoke their removal and allege the ex parte communications affected their decision

HYPO 3-1 1. Citation to a company for not forcing their painters to wear face masks (but the charge was under a statutory section that dealt with quality of air masks, not the requirement to wear them) 2. Company moved to dismiss the citation on the grounds that the facts contained in it did not support a finding of a violation of the cited regulatory provision (ALJ denied) 3. OSHA introduced an affidavit that the investigator saw the people not wearing the face masks 4. Company alleges that even if they can be charged under this statute, it shouldn't be interpreted as requiring masks when they aren't actually painting

i. First need to decide whether it is formal or informal adjudication: 1. Can check the agency enabling statute to decide how it says to adjudicate this issue 2. If not, rely on the facts, if it is presided by an ALJ it is likely formal adjudication ii. Assume the ALJ finds for OSHA, on appeal, is the agency interpretation of the statute it administers entitled to deference? 1. This is different from Chevron - there agencies are interpreting Congressional statutes 2. Martin v. OSHRC - an agency does get deference when interpreting its own promulgations iii. Issues: 1. What is the correct interpretation of the regulatory provision? Is it entitled to be admitted into evidence? 2. Was there failure of notice because the agency references the wrong regulatory provision as a basis for OSHA's citation? 3. Can the ALJ's decision be based on reliable, probative, and substantial evidence that is solely made up of hearsay? iv. Number 1: 1. The agency's interpretation of their own statute is entitled to deference from the court 2. Still judge the standard by reasonableness/rationality v. Number 2: (Notice) 1. Does the APA require notice for formal adjudication? a. 554(b) - could also depend on enabling statute b. Only discusses what the content of the notice must be to that they are actually required to give it at any point c. Rulemaking explicitly requires notice 2. Case Law: a. NLRB b. Sunsites c. Copanos 3. To constitute a violation of notice, the regulated entity must: a. Lack knowledge of the agency action b. Be prejudiced by their lack of knowledge? 4. Here the standard likely is not met, but what if they had not responded as if they knew? a. Here may still not be enough because all the facts were all for the right citation b. Would it be beneficial to advise them to act as if they did not know and keep them from responding? 5. If the regulated entity did win on notice, the agency would just have to file a new citation 6. In general, it is better to respond even if there is a defect of notice vi. Number 3: (Hearsay) 1. Burden of proof (persuasion) - 556(d) puts it on the proponent: a. Generally means the agency b. The person seeking the order c. Workers compensation case - the employee has the burden of proof 2. "Reasonable, probative, and substantial evidence" - ALJ applies this at the agency when making their findings 3. Sub issues: a. Is hearsay admissible in formal adjudication? b. Meet burden of proof? c. Right to cross-examination? 4. In formal rulemaking - a decision must be based on the record: a. 556(d) excludes irrelevant, repetitious, immaterial information b. Hearsay can be admissible as long as it is not the above 5. So it generally is admissible, BUT can you rely on only hearsay? a. If hearsay is all that is available can the ALJ consider it "reliable, probative, substantial evidence"? b. Richardson - yes (relatively new standard) c. The report in this case was a doctors report, is the inspector report in the HYPO comparable to that (probably) 6. Cross-examination issue - Wallace v. Bowen

Policy Statements

i. Future effect (if not then it is legislative) ii. Leave open decision makers discretion (if not then it is legislative) iii. Not binding

Davilla and AMC Test for Interpretive Rules

i. How does the agency characterize the action? 1. Did the agency invoke legal authority from its mandate? 2. Did the agency post the information in the CFR? ii. Does the legislation impose any new rights, duties, or expectations on parties? 1. Is there an adequate basis in the absence of the rule for the enforcement action (could the agency have taken the same enforcement action without promulgating this "interpretation"?) 2. Is the legislation an amendment to an already existing rule?

Where should the weight of the interpretive power lie?

i. If you say step 1 - more robust search by the court to try to determine the intent of Congress ii. If you say step 2 - this gives more interpretive power and deference to the agency (should they really be the ones trying to determine congressional intent)

Administrative Law Judge

i. Included in APA § 556(b) - entities that can oversee the taking of evidence: 1. The agency 2. Members of the agency 3. An ALJ ii. Prohibited from going against formal positions of the agency iii. Issues of conflict of interest/bias because they are employed by the agency iv. Ex. if a regulated entity challenges a regulation as unconstitutional, the agency cannot hold that it is because that would be going against the agency's position, would have to raise the issue and allow a court to review it on appeal

Requirements under 553(e)

i. Interested persons = pretty much anyone, typically includes businesses and interest groups ii. Most people would not take the time to check the register iii. Oral presentations is at agency discretion, they mostly only accept written comments/opinions 1. Check the enabling statute as well as the APA 2. Different requirements for formal rulemaking

RWD v. NLRB

i. Is the new agency policy a complete reversal of a long standing rule? ii. Used to not require any preference to be given to a former strike-employee, could treat them just as a new applicant iii. SC rule that they do have to give preference in the Laidlaw case iv. Agency (relying on Laidlaw) file suit against a company that was not giving preference and in an agency adjudication found them guilty of violating the rule and required them to make back-pay to their employees v. Requiring them to pay back-pay here was an abuse of discretion

Final Test for substantive rules - a rule is substantive if:

i. It substantially alters the rights of parties (AHA) and: 1. is not incidental 2. is "so significant"/"significantly grave" (JEM) (balance when the need for public participation outweighs the need for agency efficiency) ii. It encodes a substantive value judgement: 1. Substantially alters party behavior (AHA) 2. Affects primary conduct as defined in the enabling statute (ATA)

Non-legislative Rules v. Legislative Rules

i. Legislative = requires N&C or formal rulemaking (is prospective and general binding effect) NL = prospective and non-binding

Reliance on Non-Legislative Rules

i. Must an agency use N&C procedures to change a no-legislative rule? ii. When if ever can a RE rely on IR made by agency personnel? iii. Estoppel and DPC Claims*

JEM Broadcasting v. FCC

i. New considerations on top of AHA and AT ii. FCC created a hard look processing which set a fixed period when you could apply for a channel and anything filed within that period would be evaluated for substantial completeness: 1. If you did not include the required information by the close of the window then you were denied with no opportunity for curative amendment 2. If any data is incorrect and inconsistent and they could not resolve the discrepancy by simply looking at the document then you were denied iii. Very harsh rule - No period to cure in a very short application window seems very harsh iv. Court introduce balancing test, get rid of "too important" standard

Two Kinds of Non-Legislative Rules

i. Policy Statements ii. Interpretive Rules

Abbott Test for Implicit Preclusion

i. Presumption under the APA in favor of judicial review ii. Standard = whether there is clear and convincing evidence that the legislature intended to preclude judicial review? iii. Consider the legislative history, the entire text of the statute, and the context of the legislative actions/intent Block Test - change test to whether it is fairly discernible

Split-Enforcement

i. Prevent unnecessary bias in the employment law context ii. Split the investigatory and prosecutorial functions in OSHA and MSHA

Importance of Public Comment

i. Public comments are good for the agency to get other perspectives ii. Good for the public - makes the process that affects their rights and duties more democratic iii. Good for the courts - better record to review

Wallace v. Bowen

i. Right to examine/cross examine ii. Secretary of the Department of Health and Human Services - after a hearing before an ALJ and review by the appeals council found appellant not disabled (DC upheld secretary decision) iii. Claimant arguing: 1. Argues that the ALJ reliance upon medical expert reports obtained after the hearing without an opportunity for cross-examination by Wallace denied him both his statutory right to have a decision on his claim based on evidence adduced at the hearing and his due process rights (did not give him adequate opportunity for cross examination) 2. The secretary may not rely on post-hearing reports without giving the claimant an opportunity to cross-examine iv. No opportunity granted to the petitioner to subpoena the doctor because the hearsay only came in after the hearing and the ALJ relied on it

American Hospital Association v. Bowen

i. Rule in play: 1. Have peer review boards review 5% of hospital claim documents 2. If they notice a problem they can review 100% to ensure there is no Medicare fraud ii. Rule was issued without N&C - argue that they were exempt under 553(b)(3)(A) (rule of procedure) iii. AHA filed a petition for the agency to promulgate a full set of rules but the agency never responded: 1. Could have sought judicial review saying that the agency decision did not apply to them, but this would be evaluated under the arbitrary and capricious standard (meaning that they would likely lose) 2. By filing a new petition, they only have to argue under the Rule of Reason test established in TRAC because the agency never responded (unreasonable delay/unlawfully withheld) iv. There was an old test in play - a rule is substantive if it has a "substantial impact on parties" 1. AHA wanted this test because it would have met this standard 2. Not a good test to apply because procedural rules can also have a "substantial impact" 3. And substantive rules can have a relatively small impact 4. The entire point of a rule is to impact parties 5. The AHA's argument here was under the old test - the new rule did have a substantial impact on them (more prying eyes, higher scrutiny) but under the new rule, there is not stamp of approval (all that is being regulated here is when you are being investigated, not what it is for)

Analysis of whether a court has the authority to review a claim against an agency

i. Standing ii. Jurisdiction (personal and subject matter) 1. The APA does NOT grant subject-matter jurisdiction 2. Enabling statutes can lay out jurisdiction (also cause of action) 3. BUT the APA is a federal statute, so if you raise a claim under it, you can rely on general federal question jurisdiction iii. Exceptions under APA 701 iv. Cause of action: 1. Statutory - enabling statute 2. Non-statutory - APA 702 = fallback provision - cause of action for a person "suffering legal wrong because of agency action, or adversely affected by agency action within the meaning of the relevant statute" v. Timing

Triggering the Notice Requirement under the Due Process Clause

i. State Action - not usually a problem with agencies because they already are government actors ii. Individualized decision making: 1. Londoner 2. Bi-Metallic iii. Deprivation of life, liberty, or property interest 1. Goldberg 2. Roth 3. Sinderman

Applying the Chevron Two-Step

i. Step 1 - how do you know whether Congress has "clearly spoken"? 1. Need to determine congressional intent 2. Sources: a. Text - plain meaning (dictionary definition) b. Context of the surrounding language c. The purpose and intent of the statute d. Legislative history 3. Plain meaning - all justices accept that this must be considered a. K-Mart case b. Look at the context of the surrounding language 4. Purpose and intent of the statute: a. Only some justices accept this as being necessary for review b. Check the congressional record? c. Dole case 5. Legislative history - Dole 6. Typically in a situation where there is no strong argument for one or the other, and it could go either way then you should move to step 2 ii. Step 2 - if Congress did not speak or was ambiguous, was the agency's interpretation reasonable? (Ask if there is any contrary evidence in the record that the agency did not acknowledge or address)

Copanos Court Analysis

i. Test - enough information to provide a genuine opportunity to identify facts or issues ii. The court holds that after reading these facts in context, there was no significant ambiguity - there was proper notice: 1. Gave them the time period of a hearing 2. The agency notified them of their misconduct (so fixing that misconduct is what they would need to raise to get a hearing - they said they were contaminating medication so bring evidence to show the opposite) iii. The petitioners here were not confronted with any significant ambiguity regarding the type of information that would warrant a hearing before the agency - the NOOH discussed in detail the facts and evidence that formed the basis for the agency's proposed withdrawal iv. What types of evidence the company needed to submit to raise a material issue of fact about the allegation - any competent evidence to the effect that: 1. The company did not in fact manufacture the drugs using equipment designated for clean drugs 2. That the deficiency had been remedied within a reasonable time after receipt of written notice of the violation, from the Secretary or his designee v. The NOOH failed to organize the relevant facts in any way that would show how they met the standard (recognizing that they did not put the facts with requirements, but that is irrelevant)

Reasons Agencies give for Denying a Petition

i. The did not believe they had the authority to act in this situation ii. The agency views the facts differently iii. They do not have the resources to act at this time

What is a rule of procedure?

i. There is no definition in the APA ii. AHA v. Bowen iii. Air Transport iv. JEM Broadcasting v. Substantive has to do with the "what" whereas procedural is "how/when" vi. Substantive examples: 1. Identification or changing parole eligibility guidelines 2. Preventing regulated entities from appealing decisions (but this sounds really procedural)

Ex Parte Communications under APA 553(c)

i. There is no explicit mention of them for informal rulemaking (but 553(d) explicitly prohibits them for formal rulemaking, so is it sketchy to not then require them for informal?) ii. "after consideration of the relevant matter presented" - can an ex parte comment be considered a relevant matter? iii. The goal of informal rulemaking is to allow agencies to promulgate better rules with less difficult requirements, wouldn't allowing more comments (including ex parte comments) actually help this goal by bringing in more perspectives? iv. Also want to make sure that any other interested parties would have notice of the situation, however, and whether they need to respond to an ex parte comment v. Judicial review - court is trying to decide if the agency decision is adequately based on the record, if they only rely on ex parte communications, there will not be a record for the court to review vi. Remedy is typically to inform the parties of the communication

HYPO 3-3 1. Installation commander 2. Grievance committees make findings of fact, hear and valuate the evidence, and make recommendations to the commanders (the GC spoke with the prosecution and advised the decisionmaker - this is one step removed communication so does this actually implicate the statute?) 3. Committee determinations are advisory 4. After the general received the case, but before she took any action, the general counsel of the agency prepared and submitted a legal opinion to General Thompson stating that he believed the man should be removed 5. The General overruled the committee and removed the man 6. Mr. Blake's lawyer filed a suit contesting his dismissal, which argues that the firing was invalid because of the conversations between the general counsel and Mr. Thompson

i. This would fall under APA §554 because it concerns intra-agency communication ii. Assume APA does not apply, is there any other source of law that could prohibit this kind of communication? iii. Constitution, agency rules, enabling statute, etc.

HYPO 2-1: i. Use permit for pesticides - bad for regulated entity because expensive to get the permit Exception for chemical pesticides but not bio-pesticides, want to expand that rule to include bio-pesticides

i. Two potential courses of action: 1. Seek adjudication: a. Have your single pesticide declared exempt b. This is time consuming and costly, and would only apply once (I.e. if you had a new pesticide in the future, you would have to seek a new adjudication) 2. Rulemaking: a. Create a new rule that exempts all bio-pesticides b. This is the more efficient course of action because then you would only have to expend the costs one time (BUT if the agency does not pick the rule you want and follows all of the procedure correctly, then you are stuck with no redress) ii. The agency is under no obligation to amend the rule in your favor (but check the enabling statute) iii. So how do you get the change you want? 1. Lobby (bottom-up/top-down) 2. File a rulemaking petition iv. What if the firm represented the National Wildlife Foundation instead of a biotech company? 1. Different interests 2. Should you use the same or different tactics? 3. They do not have to file a petition, they would just have to oppose the expansion

Mixed Questions of Law and Fact

i. Want to balance the need for agency expertise v. the need for helping against oversight (courts are now taking a much more active role in reviewing agency decisions by using "hard look review") ii. Question of law - do not need the facts to resolve the issue (and vice versa for a question of fact) iii. A mixed question is deciding whether a legal standard or term applies to a set of facts or asking how it would apply (still required to consider the entire record, not just agency findings)

TRAC v. FCC

i. What is an unreasonable delay? ii. Guidance in assessing claims of agency delay - The time agencies take to make decisions must be governed by a "rule of reason" 1. Where congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute that statutory scheme may supple content for this rule of reason 2. Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake 3. The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority 4. The court should also take into account the nature and extent of the interests prejudiced by delay 5. The court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed" iii. Here, Congress had a time-table in place, but even so the Court was reluctant to take action against the agency 1. Consider other precedential or more important actions that may be necessary 2. An agency does not keep a record until they start an actual rulemaking so what is there for a court to review? 3. The agency has a better idea of what its resources are, the court does not want to impede

Southwest Sunsites Inc. v. FTC

i. What is the purpose of the notice provision? - so the parties can understand the issues so they can have an opportunity to raise the proper arguments/justify their actions ii. Old deception standard - any advertising representation that has the tendency and capacity to mislead or deceive a prospective purchaser in an unfair and deceptive practice" iii. New deception standard - deception if there is a representation, omission, or practice that is likely to misled the consumer acting reasonably in the circumstances, to the consumer's detriment iv. Petitioners contend that the agency violated 554(b) which requires that they be timely informed of the matters of fact and law asserted v. Notice requirements is satisfied if the party proceeded against "understood the issue and was afforded full opportunity to justify his conduct" vi. The commission reversed the ALJ's findings on a theory more narrow than, but completely subsumed in, the prior theory, all evidence relevant to the old theory was necessarily relevant to the new, cannot accept petitioner's argument that a substantially different standard was applied to which they had no opportunity to respond vii. Here there was a new legal theory but there was still proper notice because all of the evidence relevant to the old standard is relevant to the new standard

Air Transport v. DOT

i. Whether the FAA were obliged to engages in N&C procedures before promulgating regulations governing the adjudication of administrative civil penalty actions ii. Rules at issue: 1. Administrative adjudications and what penalties they could impose 2. Discovery and settlement rules iii. ATA argue that the new rules unfairly affect their right to obtain or appeal an adjudication 1. Their right to appeal was restricted but this sounds like SOL (which is procedural and could be excepted) 2. Does this encode a substantive value judgement? a. The agency said you have X number of days to file an appeal b. They placed a stamp of disapproval on any inefficient action that took longer than this number of days iv. The rule substantially affects the ability of an agency to avail itself of a right to appeal (the right to appeal is a fundamental right) v. Court decides that this may be procedural but it seems "too important"

Sierra Club Court Analysis

i. Whether the unlawful errors were of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made 1. The EPA is granted the authority to include more, but they are not required 2. This is not limited to physical documents, but if there are oral communications that are of "central relevance" then they must be included ii. Weird concept because the agency decides what is of "central relevance" (the court is wary to overstep the agency because Congress delegated this responsibility to them) iii. Congress has not imposed a prohibition with the EPA's statute so it is not required that the court impose that restriction iv. The EPA docketed all of their post-comment communications except for two of them 1. The court considers these "inadvertent ommissions" 2. Harmless error so will not hold the rule invalid based on them 3. Even though the RE had no opportunity to respond to these two comments, they did not influence the rule anyway so it does not matter v. Unless expressly forbidden by Congress, such intra-executive contacts may take place, both during and after the public comment period; the only real issue is whether they must be noted and summarized on the docket

HYPO 4-1: i. Interpreting "surplus" for customer sales (one definition leaves more money for the dealer, and the other leaves more money for the consumer) ii. This seems to be disadvantageous to customers so the FTC will want to protect them and issue a new policy - advantages/disadvantages of rulemaking v. adjudication iii. First check whether the agency has the authority to do both

i. Why would the agency prefer rulemaking: 1. Broader applicability 2. N&C = more perspectives, more time to decide 3. If you use adjudication - yes you are saying CB is violating consumer rights, but another dealer could potentially just come along and interpret the judicial decision differently (adjudication is only binding on that one party) ii. Why would the RE prefer rulemaking: 1. They would not be held liable and would not have to defend a suit 2. Could submit comments to the agency 3. The new prospective rule would only affect them and other dealers in the future iii. Why would the agency prefer adjudication: 1. Potentially more efficient - could pick a weak defendant to guarantee they would win 2. Easier to make a better and more specific rule, rather than trying to craft a prospective general rule 3. Give retroactive effect to their new policy rather than just a prospective rule iv. Why would the RE prefer adjudication: 1. Shielding the decision from political influences 2. Gives them an opportunity to plead their case rather than submitting 1 comment out of 100