Admin Law (Stevenson)

430 - What kind of judicial analysis usually controls the outcome in determining whether there has been a final agency action?

- Depending on whether the matter is agency rulemaking or adjudication, courts use a balancing test that includes economic hardship, agency delays, fitness of issues for review, and so on.

441 - If a claimant brings suit in federal court challenging an adverse agency action against him, and the agency moves for dismissal for "lack of exhaustion" of the claim before coming to court, what does this mean about agency's procedures?

- Dismissal for failure to exhaust agency remedies means there are additional avenues of redress or recourse for the private party within the agency.

357. What is the government's "evidentiary privilege"?

- Evidentiary privileges protect entire categories of government information, the disclosure of which could go against the public interest. Military secrets, internal security secrets, and sensitive information affecting foreign affairs are the most obvious categories. Courts confronted by discovery requests for such information must weigh the government's legitimate interest in secrecy for certain matters with the litigant's legitimate needs for the information.

358. What is executive privilege for purposes of resisting discovery requests during litigation?

- Executive privilege allows the Executive Branch to refuse to disclose certain information that it deems necessary to keep secret. Although the Executive Branch has some need for confidentiality that must be weighed against a private litigant's need for information or discovery.

361. The Sunshine Act requires that agencies hold their meetings open to the public. When may an agency that is subject to the Act meet in private?

- Exemptions to the Sunshine Act track the exemptions to the FOIA's disclosure requirements. Additionally, the Sunshine Act allows for an agency to meet in private when opening the meeting to the public would negatively affect financial institutions and markets and when the agency's implementation of a proposed agency's implementation of a proposed agency action would be significantly frustrated.

437 - What is "exhaustion of remedies" for purposes of administrative law"

- Exhaustion of remedies is a long-standing judicial rule that private parties should have to avail themselves of all the levels of review or appeals within an agency before appealing the agency's decision into court. Most agencies have some kind of internal appeals after the initial agency adjudications.

431 - What are the 3 types of issues pertaining to the timing of judicial review?

- Final agency action, ripeness, and exhaustion of remedies

471 - May a plaintiff assert the rights of a third party?

- Generally not. To have standing to sue, an entity must assert its own rights.

356. Besides the usual discovery limitations that all parties can invoke in regular civil litigation, what additional privileges do administrative agencies have to resist disclosure of information?

- Government agencies have two privileges that private litigants lack: the evidentiary privilege and executive privilege (also called, "executive immunity"). Neither privilege is absolute, but the private litigant seeking discovery will have to overcome a presumption in favor of the privilege.

424 - Bathroom Stuff Corporation makes various personal hygiene products and toiletries, which come under the regulatory purview of the FDA. Inspector Gadget is the new head of the FDA, and he promulgates a rule declaring that FDA inspectors must have free access to regulated industry facilities anytime they want. Bathroom Stuff challenges this new rule in court immediately, before Inspector Gadget makes his first inspection. The FDA contends that the issue is not ripe for review because it has not even decided when or if it will conduct the inspections; the agency's promulgation of the rule was mostly to humor the new head, Inspector Gadget, who insisted on it to keep his investigatory options open in the future. How will the court rule?

- In Gardner v. Toilet Goods Assn., Inc., the Supreme Court considered a similar "right of access" rule for FDA inspectors and conclude that it met neither the "fitness for review" requirements nor the "hardship" requirements to satisfy ripeness for judicial review. The court reasoned that the right of access was not fit fore review because it was unclear whether there FDA would ever conduct inspections, or that the inspections would be conducted in a way that exceeded the agency's statutory authority. The Court also held there was no undue "hardship on the manufacturer because "free access" for inspections did not impose high compliance costs on the regulated industry.

433 - Can informal agency actions be considered final agency actions for purposes of judicial review under the APA?

- In some cases, informal agency actions can constitute final agency actions, and can be reviewable in court - even though this is not the usual situation for judicial review. For example, in the famous case Citizens to Preserve Overton Park, Inc. v. Volpe, the secretary of transportation had done nothing more than approve an interstate highway extension running through downtown Memphis; it was neither rulemaking nor adjudication, but it was still subject to judicial review.

398 - What is a "deeming clause" for purposes of judicial review?

- Some enabling statures allow the head of an agency to make certain decisions as he or she "deems" necessary, or "deems" to be in the public interest, and so on. The Supreme Court has held that agency decisions made pursuant to such statutory verbiage are not reviewable by courts. Note, however, that courts can still review the decision for constitutional violations. See Webster v. Doe

383. What is explicit statutory preclusion?

- Some statutes related to a particular agency's authority explicitly prohibit judicial review of certain actions by that agency. For example, the Veteran's Administrative Act 211(a) used to state that no decisions of the VA could be reviewed by any court. APA 701(a)(1) recognizes that in some cases, other "statutes preclude judicial review." Even such explicit statutory prohibition against judicial review of the agency actions does not preclude judicial review for constitutional challenges.

455 - What is standing?

- Standing is a doctrine derived from the Constitution limiting the right to sue or challenge agency action to a party who has a legal stake in a real controversy.

386. Some "no review" statutes explicitly prohibit judicial review of certain administrative agency actions. These are admittedly rare. Apart from such specific "no review" verbiage in statues, what is the other main form of statutory "preclusion" from judicial review of agency actions, as mentioned in the APA?

- Statutes where the matter is "committed to agency discretion by law" as stated in APA 701(a)(2).

149. What is the process for agencies to promulgate rules or regulations under the Administrative Procedure Act?

b. Notice-and-comment rulemaking, also called informal rulemaking, is the main process for promulgating rules under the APA. This is by far the most common method for agencies to promulgate new regulations.

175. Russ Cargill is head of the EPA, and devises a self-interested scheme to eradicate a Superfund site in Springfield by turning it into a "new Grand Canyon." After the close of a brief notice-and-comment period, which went largely ignored, he approaches the president with an assortment of policy alternatives, proposals for which are detailed in black binders numbered 1 through 5. He asks the President which one he prefers. The President makes a recommendation without reading any of the proposals, based solely on Cargill's suggestion, and the agency adopts Cargill's plan. When Ned Flanders seeks judicial review of the agency's decision, how will the court treat this ex parte contact between the agency and the President?

bb. These facts are rather extreme, but generally, courts are very permissive of contacts and conferences between agency officials and the President in the midst of rulemaking. Challenges to such contacts—including contacts with the President's regulatory staff at the OMB—usually fail. See Sierra Club v. Costle. If the facts were extreme enough to pose genuine constitutional concerns, as they might be in this case, the court could take a different approach. Even so, it is more likely to focus on the constitutional problems than the technical procedural problems with ex parte contacts.

151. What are the procedural requirements for informal rulemaking?

d. These are the core requirement of APA 553 for informal rulemaking: 1. NOTICE—Publication of the proposed rule in the Federal Register. 2. OPPORTUNITY TO COMMENT—A period (usually three months or more) for the public to submit written comments about the proposed rule; the agency can also hold public hearings if it chooses or if required by its enabling statute. 3. PUBLICATION of the decision with a concise general statement of the basis and purpose of the rules, responses to comments, and so on.

177. What is the purpose of requiring a "concise general statement of the basis and purpose" for new rules that an agency promulgates?

dd. The concern behind requiring the agency to explain its basis and purpose is to assure the courts (and the citizenry) that agencies are not behaving arbitrarily or capriciously, or worse, abusing their discretion by acting from illegitimate motives. It is important to understand this policy concern to see why courts remand rules back to the agency for more consideration on the grounds that the decision was "arbitrary and capricious"—that is, it failed to articulate enough of a rationale for the adopted rule.

152. What must an agency include in its published notice of a proposed rule?

e. APA 553(a) require that notice include: i. The time, place, and nature of the rulemaking proceedings; ii. Reference to the agency's legal authority for promulgating the rule (i.e., the relevant enabling statute); iii. Either the terms or substance of the proposed rule, or a description of the subjects and issues covered (note that this is the most important part of the notice—it actually contains the proposed rule itself).

178. ANALYZING AGENCY EXPLANATIONS FOR RULEMAKING

ee. If the legal problem involves notice-and-comment rulemaking by an agency, be sure to watch out for the following problems: 1. Did the agency respond to serious or substantial objections raised in the comments submitted by the regulated industry or activist group? (The agency is free to ignore or be dismissive of silly or unsubstantiated objections.) 2. Did the agency disclose all the data and evidence it relied on in formulating the specific provisions of the rule? 3. Did the agency address other policy alternatives and explain why it did not choose one of those options?

154. What are the requirements of the opportunity to comment during informal rulemaking?

g. APA 553(c) requires the agencies to allow "interested persons" the opportunity to submit written data, opinions, and arguments for or against the proposed rule. The agency has the option of holding public hearings, but the APA merely permits this without requiring it. In addition, courts have required agencies to disclose the internal studies or data on which they are basing their rule, so that the public had an opportunity to respond to (i.e., impeach) that evidence. Agencies also must make these opposing comments public, to the extent possible, so that parties supporting the proposed rule can submit responses as well.

180. Why are the problems of safety regulation or risk management so prevalent in administrative law?

gg. Numerous agencies have an explicit statutory mandate (legal duty) to promote or ensure safety in a particular area—food, drugs, the environment, vehicles, medical devices, building construction, and workplaces. Congress usually delegates this authority in vague, general terms, leaving agencies to guess at the scope of their rulemaking power and the degree of strictness Congress would want in the rules, or that the courts will allow when the rules are in place.

189. When government agencies engage in cost-benefit analysis, what is the "cost" side of the analysis?

pp. Agencies focus mostly on direct compliance costs for those affected by a proposed regulation—the cost of buying new equipment, recordkeeping and reporting, hiring more compliance officers or related personnel, and lost profits due to decreased consumer appeal, etc. These calculations can be contentious but are often the least debatable items in a cost-benefit analysis. More controversial are indirect costs, such as the impact of new regulations on unemployment rates, import-exports, currency values, GDP, etc.

164. When would an agency employ hybrid rulemaking to promulgate new regulations or make policy determinations?

q. There are two scenarios where agencies are likely to use hybrid rulemaking: (1) when compelled to do so by the enabling statute, and (2) when compelled to do so by a court. The latter is very unlikely after the Supreme Court's decision in Vermont Yankee v. NRDC, which held that courts may not impose additional procedural requirements on agency rulemaking beyond those required in the APA and the enabling statute.

193. Solomon is a regulator trying to conduct cost-benefit analysis for a safety regulation bout baby cribs—a popular new product line has a high incidence of babies suffering disfiguring injuries or even being cut in two. How would Solomon analyze the costs and benefits of a proposed regulation?

tt. For the costs, Solomon will have to determine the overall costs for manufacturers to design and produce a crib with newly required safety features; assuming crib makers will pass through the increased costs of production to their customers, Solomon may need to account for the loss in sales that results from a price increase. For the benefits, Solomon needs to know the statistics about injuries and the statistical number of babies saved if the new regulation goes into effect. Then Solomon has to assign a value to each of these saved lives, called the VSL, multiply by the number of lives that will be saved, and compare it to the costs of the regulation to the manufacturers.

196. What is "negotiated rulemaking"?

ww. Negotiated rulemaking, often referred to as "reg-neg" by administrative law processors, is where agencies hold formal negotiations with interested parties (i.e., the regulated industry and citizen advocacy groups) before formulating a proposed rule in hopes of building a consensus. The main purpose is to reduce litigation after the adoption of a rule by working out an agreement beforehand with the parties most likely to challenge the rule in curt later. Congress endorsed this practice in Negotiated Rulemaking Act in 1990, which is incorporated into the APA at 561-570.

171. When is a court likely to invalidate an agency's rulemaking due to the occurrence of ex part contacts?

x. If the agency decision involves a competing claim to a privilege—such as a broadcast license on a certain frequency—a court might invalidate the decision and remand it to the agency for more careful consideration. This is relatively rare, however, and the leading cases in this are older and involve extreme ex part contacts that border on bribery, as in Sangamon Valley Television Corp. v. U.S.

197. Does negotiated rulemaking, or "reg-neg," eliminate the need for an agency to follow the notice-and comment procedures in APA 553?

xx. No. The negotiated agreement formulates the proposed rule, which the agency publishes in the Federal Register, following the usually procedures for informal rulemaking. Even so, most of the interested parties who would have otherwise submitted substantial comments have already participated in the formulation of the proposed rule, so it should be less controversial and receive fewer objections in the comment period.

172. How do courts treat ex parte contacts between the agency and the President, or members of Congress, during or after the public comment period?

y. Courts expect agency officials to confer with the President and members of Congress as part of the process of promulgating regulations, so it is unlikely that a court will invalidate a rule because the agency conferred with the President or a legislator, unless it somehow becomes egregious enough to create constitutional problems. Of course, Congress can require an agency to include directive communications from the President about a regulation in the record supporting the rulemaking. See Sierra Club v. Costle. The President or members of Congress may not attempt to influence the outcome of agency adjudications.

198. Will a court give greater deference to a rule or regulation promulgated through negotiated rulemaking?

yy. No. A provision in the Negotiated Rulemaking Act, codified as APA 570, states that a rule proposed through negotiated rulemaking should not receive any more judicial deference than other rules. Note, however, that the conduct of the negotiated rulemaking itself is precluded from judicial review.

173. What is the HBO rule for ex parte contacts in agency rulemaking?

z. In HBO v. FCC, the Circuit Court held that ex parte comments must be part of the "whole record" that comes before the court when parties seek judicial review—in other words, there can be no "off the record" influences on the agency's decision. In addition, the HBO court held that ex part contacts could violate other parties' opportunity to comment, because they would not have a chance to respond to the ex parte arguments. There is some doubt, however, about whether the HBO rule is still valid after the Supreme Court's decision in Vermont Yankee, which raised the level of deference courts must show to agencies regarding rulemaking procedures.

199. When an agency engages in negotiated rulemaking, is it obligated to adopt the proposed rule that the group of participants formulated by consensus?

zz. No. This issue is rarely litigated, but courts generally treat the rules proposed by negotiated rulemaking the same as they would treat a rule proposed through traditional notice-and-comment procedures. Courts do not force the agency to adopt the proposed rule as their final rule just because the proposed version was the product of negotiated rulemaking. See. U.S. Group Loan Service, Inc. v. Riley.

What is "Auer deference," in terms of judicial review?

− "Auer Deference" refers to judicial super-deference to agency interpretations of regulations or rules. An agency's interpretation of its own regulations is controlling unless "plainly erroneous or inconsistent with the regulation." This approach actually predates the Auer decision, having originated in Bowles v. Seminole Rock & Sand Co. Prior to Auer, the Court called this Seminole Rock rule, but since 1997, the Supreme Court has referred to it as Auer deference.

What are the 2 prongs of the Chevron test?

− 1. Determine whether the wording of the statute leaves any room for interpretation. − 2. Assess whether the agency's interpretation was reasonable. − Chevron basically limits judicial review of agency interpretations of law.

476- What standing requirements must an association meet to bring a claim on behalf of its members?

− 1. The members have standing to sue individually; − 2. The interests that are at stake are within the scope of the association's interests; and − 3. The absence of individual plaintiffs will not harm the litigation.

Who has jurisdiction over claims arising under the FTCA?

− 28 U.S.C.A. §1346 grants jurisdiction to the federal district courts over claims brought under the FTCA.

The Social Security Administration has held a formal, on-the-record adjudication in Homer Simpson's disability case before an administrative law judge. When Homer completes the requisite agency appeals and seeks judicial review of the agency's unfavorable decision, what standard of review will the court use to evaluate the case?

− The court is most likely to use the "substantial evidence" test of APA §706.

367. What courts have jurisdiction over cases involving federal questions?

- 28 U.S.C. 1331 allows parties to bring actions for federal judicial review into federal district court. Originally there was an "amount in controversy" requirement for jurisdiction over these claims, but that part of the statute was repealed, allowing cases to come into district court regardless of the amount at stake.

426 - the federal agency that regulates the sale and registration of firearms issues a new regulation imposing an age requirement (26 years) for the purchase of handguns, in response to several empirical studies showing that violent crimes are almost never committed by anyone over 25. The enabling statute for the agency provides that regulations promulgated by the agency are subject to judicial review in federal court within 90 days of the final rule being published in the Federal Register, and has detailed procedures in place for enforcement proceedings. The agency waits two years before enforcing the statue, at which point it brings an action against several Smart-Mart stores for selling handguns to 25 year old customers. How would a court respond when the stores challenge the regulation in response to the enforcement proceeding?

- A court is likely to find that the case is precluded by the statutory deadline for judicial review, given that two years have passed and the statue mandated judicial review within 90 days

390. When Congress passes a statute authorizing a national health care agency, it includes in the statute a judicial review provision, which explicitly authorizes judicial review of certain actions or decisions by this new agency. The statute explicitly allows health care providers - physicians, nurses, midwives, and institutions like hospitals and clinics - to challenge agency decisions about reimbursements for procedures they perform. A private citizen, burned badly in an automobile accident, wants a face transplant. Face transplants are new, exceptionally rare (due to sever lack of living donors), and still experimental, so the NHA omits them from its "grid" procedures "authorized" by the agency. The citizen sues the agency because no physician in the country will perform the desired face transplant. What is the most likely response of the court to this lawsuit?

- A court will dismiss the claim as precluded by statute, as patients receive no mention in the statutory provision authorizing judicial review.

419 - when is a regulation "fit" for pre-enforcement judicial review

- A rule is "fit for review" if there is no additional factual development required for the court to resolve the issue in the case. In other words, cases that are fit for review at the pre-enforcement stage typically involve purely legal issues. For example, a challenge to the agency's authority under its enabling statures to regulate in the area of the new rule would be a purely legal question and fit for review. On the other hand, a rule that is so unclear in its meaning or application might lack "fitness" for review, as when an agency's new rule calls for periodic site visits to check for regulatory compliance, without any evidence of when or if the agency will conduct these inspections. See abbott laboratories v. gardner

473 - What are the exceptions to the ban on third-party standing?

- A third party may assert the rights of a claimant when there is a close relationship with the claimant and the third party has an incentive to fight for the claimant's rights, or when there has been some impediment to the primary claimant's ability to assert his or her own rights.

377. Judicial Review: Agency Actions

- APA 704 permits judicial review of agency actions. This includes most activities of administrative agencies, but the Supreme Court has held that the President is not an "agency" for purposes of the APA in Franklin v. Massachusettes. The Court has also held that general strategies or policy decisions of an agency - such as the manner in which to regulate - are not an "action" and therefore not subject to judicial review under the APA.

376. How does APA 704 provide for judicial review of administrative agency actions?

- APA 704 provides for judicial review of agency actions that are "made reviewable by statute and final agency action for which there is no other adequate remedy in a court." The phrase, "reviewable by statute" seems unnecessary and redundant, and was probably included to ensure that the APA woud not be construed as somehow replacing judicial review provisions in other enabling statutes. Probably the most significant clause is the phrase "final agency action" which is a significant limitation on judicial review for some parties. Note that 704 also limits judicial review to "agency action," which does not include some executive activities or general policy decisions of agencies.

416 - When is agency adjudication a finale agency action for purpose of judicial review

- Agency adjudications become a final agency action when the agency's process is complete. The agency typically issues a final order that says "FINAL AGENCY ACTION" or "FINAL ORDER" at the top of the page. If there is an appeals process within the agency to seek review of an administrative law judge's decision, this must be complete (or waived) to have a final agency action. Sackett v. EPA Note: In most cases, it is clear when there has been final agency action in a case. In some cases, however, agencies have a variety of optional avenues to seek review (like an "administrative exception," which bypasses the normal adjudication process), and this can leave ambiguity in a few cases about whether the agency's procedures are completely ended.

439 - How does the exhaustion of remedies requirement differ from other timing issues, such as ripeness, mootness, and finality of the agency's action?

- All of the concepts overlap a little; for example, a case might not be ripe if there is no final agency action, and the agency's action may not be "final" if a party has not yet exhausted the available administrative avenues of redress. One general distinction, however, is that exhaustion of remedies focuses on the actions of the private party (i.e., what appeals it has filed, within the agency, etc.) whereas the other timing issues focus on the actions of the agency itself.

467 - What is the "zone of interests" test?

- An entity has standing to sue if it has suffered a legal wrong and the interests to be protected are within the zone of interests that the statute or constitution intended to protect. This is based on APA 702, which permits suits by individuals "adversely affected or aggrieved by an agency action within the meaning of a relevant statute."

456 - Why do we require standing?

- Article III of the Constitution restricts federal jurisdiction of the courts to "cases and controversies." If there is no actual injury to a party that a court could remedy through judicial review, then it is outside the power of the court to hear the case.

475 - What is associational standing?

- Associational standing is where an association brings a claim on behalf of its members or on its own behalf.

463 - Abbott Hoffman, the president of the defenders of student life a the University of Nirvana (UN), is outraged that his organization failed in its first lawsuit for failure to show standing. He enrolls at the UN campus in Kenya. He then files a lawsuit, stating that when he goes overseas, the University policies allowing him the freedom to live off campus in a commune should apply on the Kenya campus as well. Will Hoffman have standing for this suit?

- Assuming, for the sake of argument, that the policies the UN instituted for its stateside campus created an expectation of a right of the student body to complain about rules limiting their social life, Abbott might prevail on the standing issue now. Because he can show individualize harm that is likely, not speculatively, to be traceable to his inability to challenge the rules, and redressability of the harm through a court injunction, he has an argument establishing standing to see.

397 - Why doesn't the "no law to apply" rule for barring judicial review not violate the nondelegation doctrine?

- At first glance, it might seem that a statute with "no law to apply" regarding certain agency decisions - therefore putting it beyond the purview of the courts - would violate the nondelegation doctrine, which requires at least some "intelligible standards" in the stature by which a court can measure the agency's faithfulness to Congress's intent. Even so, the types of agency decisions involved in these cases usually pertain to inherently executive functions, like a prosecutorial discretion, internal personnel management within the agency, matters of national security or the armed forces, and so on. In that sense, the matter "committed to agency discretion by law" does not involve a delegation of legislative authority. In addition, the statutes themselves usually have some "intelligible principles" guiding the agency's activities overall, and courts assume that the agency's decisions will be in furtherance of that general statutory mandate.

375. Was there judicial review of administrative agency decisions before the APA?

- Before the enactment of the APA, there was no judicial review for many agency decisions. Some common-law writs like mandamus actions were available, but some courts acted as if there was a presumption against judicial review of agency actions. Usually judicial review was availability only when the enabling statute explicitly authorized it. APA 704 changed this by creating a presumption in favor of judicial review.

414 - Constitutional basis for ripeness and mootness

- Both ripeness (the question of whether a case is brought prematurely) and mootness (whether a case is brought too late) arise from the "case or controversy" clause of the U.S. Constitution. The idea is that a case that is either premature (not ripe) or beyond the point of legal redress (moot) does not have a sufficient legal controversy or stake to merit judicial review.

387. Congress passes a statute authorizing a national health care agency (NHA, a branch of the department of health and human services) to replace the broken, obsolete private-sector health insurance/HMO industry. Included in the statute is a "no review" provision, which explicitly precludes judicial review of certain actions or decisions by this new agency. If the courts decide to acquiesce to this statutory preclusion, in which type of cases are they most likely to acquiesce - and rule in favor of the agency or refuse to hear the case?

- Cases pertaining to property claims, such as the amount the agency will pay for pharmaceuticals or for medical procedures where specialists charge far more than general practitioners would.

466 - How did Congress override the "legal right" test?

- Congress passed a statute allowing entities who's "interests are adversely affected" by agency action to have standing. See APA 702. Therefore, they statutorily created a legal right, even when the entity was harmed indirectly.

408 - Congress passes a stature authorizing a national healthcare agency (NHA, a branch of the department of health and human services) to replace the broken, obsolete private-sector health insurance/HMO industry. Included in the statute is a "no-review" provision, which explicitly precludes judicial review of certain actions or decisions by this new agency. If the courts decided not to acquiesce to this statutory preclusion, in which the of cases are they least likely to acquiesce - and agree to hear the case, or perhaps rule against the agency?

- Courts are least likely to deny judicial review in cases pertaining to civil liberties, like the involuntary confinement or civil commitment of patients with severe mental illness

461 - What are prudential limitations on standing?

- Courts have imposed some extra standing requirements beyond those found in the Constitution, which judges deem necessary to confine the judiciary to its proper role within the government. These extra-constitutional standing requirements are called "prudential limitations" on standing, preventing courts from delving into abstract policy questions - especially where such policy analysis is unnecessary for protecting individual rights. See Warth v. Selding

- 389. How commonly do the courts find that an ambiguous statute should preclude judicial review?

- Courts usually disfavor preclusion of judicial review, and are quick to construe statutes to permit review in some cases, to avoid separation of powers problems.

436 - the federal communications commission (FCC) regulates handheld devices that broadcast over the airwaves, such as handheld walkie-talkies. The FCC publishes a list of imported walkie-talkies for which it has made no determinations about whether they meet regulatory requirements for such devices (due to the lack of information about the foreign manufacturers). Bhutan Electronics challenges the inclusion of its walkie-talkies on the list as a final agency action for which it wants judicial review. How will the court respond?

- In this case, the court will probably find that this is not a final agency action, given that the list is specifically for products about which the agency has made no determination due to lack of information.

458 - What is an "injury in fact"?

- Injury in fact is an actual wrong suffered. It must be "(a) concrete or particularized, and (b) actual or imminent, not conjectural or hypothetical." Lugan v. Defenders of Wildlife. It cannot be an abstract harm such as an ideological disagreement with a proposed agency plan. Instead, the harm suffered must have actually affected the plaintiff. Examples of actual injuries include injuries to common-law interests (which include, inter alia, interference with a party's rights, deprivation of economic or aesthetic interests, or torts) as well as statutorily created rights. For example, a person suffered harm when he was lied to about the availability of a rental unit because of his race. Also, a party suffers injury required to show standing if the government refuses to provide information that would aid a party in realizing one of its rights, such as information about an election.

443 - What is the "issue exhaustion" for purposes of judicial review of agency actions?

- Issue exhaustion is the requirement that claimants have already raised all the issues for which they seek judicial review during the previous agency proceedings. This is analogous to the requirement in civil litigation that parties "preserve issues for appeal" by raising them - at least as objections - during the trial.

366. What federal courts have jurisdiction over claims arising from administrative agency actions?

- It depends on which statute is furnishing the basis for review. Most enabling statutes pertaining to particular agencies include a provision giving jurisdiction directly to the courts of appeals, meaning an appeal from a final agency action will go directly there. A few give jurisdictions to federal district courts, like the Social Security appeals go to the nearest federal district court after the agency has rendered its own final decision in the case.

413 - how does timing affect judicial review of agency?

- Judicial review of agency actions is not available if the claim is not ripe, if the claim is already moot, or if the claimant failed to exhaust available administrative remedies before seeking redress in the courts. Even if a claim is not precluded by stature or "committed to agency discretion by law" (triggering the bars to reviewability under APA), a court may refuse to hear a case involving an agency action on the basis of improper timing.

368. What is the difference between reviewability and jurisdiction?

- Jurisdiction and reviewability are separate issues that are easily confused. Jurisdiction is the court's authority to hear a certain type of case. Reviewability, for purposes of administrative law, is more like the question of whether a claim states a cause for action in other civil litigation contexts. Some claims do have the proper procedural posture for judicial review to be appropriate, or focus on a specific issue that Congress has precluded from the scrutiny of the courts. For example, a court might have the jurisdiction to hear Social Security appeals generally, but a particular case might not be ready for judicial review because the claimant has not exhausted his or her remedies within the agency's procedures. Similarly, a particular case might meet the requirements for judicial review (standing, appropriate cause of action etc.), but a district court might lack jurisdiction to hear it because the relevant statute gave jurisdiction directly to the court of appeals.

371. Forum Preference and Jurisdiction:

- Jurisdiction relates to the question of appropriate forum for judicial review. Some statutes are unclear about whether jurisdiction has been given to district court or the appellate courts. There is a presumption in favor of appellate jurisdiction because this favors judicial economy and because most agencies develop a thorough record of their decisions that is similar to a trial record that appellate courts can review.

428 - OSHA promulgates a new rule, effective immediately, banning "nanobots" in the workplace due to concerns that they might get out of control and injure workers. The final rule just appeared in the Federal Register. Officials at the agency are not aware of any workplace environments where "nanobots" are currently in use, and therefore have no immediate plans to enforce the rule, but they want to set a precedent for regulation in this area. Several research and development firms immediately challenge the regulation, saying they have invested millions in research in hopes of bringing nanobots to the market soon. They challenge the agency's authority to regulate this area, the notice-and-comment procedures, and the rationality of the rule itself. If the court dismisses this case, what would be the most likely reason?

- Lack of "ripeness" is the agency's best chance at having the case dismissed, because this determines the reviewability of the issue, before the court reaches the merits of the arguments.

406 -Lisa Simpson is frustrated that the EPA is ignoring egregious polluting violations in Springfield, but seems to bring plenty of enforcement actions in neighboring cities. She commences litigation against the agency for its failure to bring enforcement actions against Springfield's polluters. The EPA responds that it has "absolute prosecutorial discretion" and refuse to state any reason for its singular refusal of enforcement in Lisa's town. Congress recently amended the relevant stature to include mandatory language, stating that the EPA "shall prosecute all cases where pollution has caused the death of a human," and Krusty the Clown recently succumbed to mesothelioma caused by illegal asbestos emissions from Mr. Burn's factory. Lisa mounts an impressive case for the availability and necessity of judicial review in this situation. What is the result?

- Lisa will probably obtain judicial review, contrary to the usual rule (the Heckler v. Chaney rule). The facts here are similar to Dunlop v. Bachowski), where the supreme court granted review due to the mandatory verbiage in the statue and the agency's complete refusal to state any policy reason for its nonenforcement decision. Even so, Lisa will probably lose her case. Even where plaintiffs obtain judicial review of agency nonenforcement decisions, the courts usually defer to the agency's policy reasons for prioritizing other cases, given their limited resources, and ignoring the violations alleged in the case at hand

383. What is implicit statutory preclusion of judicial review?

- Many enabling statues contain provisions that "channel" judicial review by limiting it to certain actions by a given agency (impliedly excluding the remainder of the agency's actions from judicial review), or by specifying a particular avenue of review (like the DC Circuit Court of Appeals), or by specifying the parties that shall have standing to challenge agency actions. These delineated features of judicial review are taken by some courts to imply the Congress intended to exclude other actions, avenues, or parties from judicial review.

429 - Elmer Fudd has trouble with a federal agency over his unlicensed flute-barrel shotgun. After several months of negotiations, submission of documents, and hearings, he receives an adverse ruling letter with "Final Agency Order" written across the top. Two weeks before the letter came in the mail, however, Fudd had filed a Motion for Reconsideration and Administrative Exception with the agency. Does the letter he received constitute a final agency action for purposes of the timing of judicial review?

- Maybe not. Many agencies have a seldom-used provision for requesting administrative exceptions that run parallel to the usual course of agency adjudication. Even though the agency apparently thought it was issuing a final agency decision in this case, which would make it ripe for judicial review under APA 704, if a legitimate application for reconsideration or administrative exception is still pending with the agency (as might be the case under the facts given here), the agency might convince a court that the matter is still "live" at the agency and therefore not ripe for judicial review.

449 - Dr. Julius No is in prison for his latest attempt at world domination. Due to a prison disciplinary incident, the warden suspends Dr. No's privileges and no longer allows him to attend the prison chaplain's weekly Bible studies. Dr. No wants to contest this harsh sanction, but he waits several months before filing a grievance, even though the deadline for filing grievances is 2 weeks. He then skips the remaining steps for administrative appeals and files a 1983 tort action against the prison officials. Dr. No claims that he does not need to exhaust administrative remedies if he is not seeking judicial review of the decision, but rather tort damages for violating his First amendment rights. Is he correct?

- No, Dr. No is wrong. These are the basic facts of Woodford v, Ngo, in which the supreme court held that the inmate did, in fact, need to exhaust his administrative remedies (through the prison grievance system) before bringing a claim under 1983 for mistreatment. As with another recent supreme court case on exhaustion, Kappos v. Hyatt, the crux of the case was the wording of the relevant statute. The federal prison litigation reform act has a strong requirement for "exhaustion of available administrative remedies."

362. Last year, Dororthy was appointed to head the Environmental Protection Agency. In fulfilling her EPA Administrator's duties, she meets in private with the agency's regional representatives once a month to discuss agency business. Ima Scarecrow, confused as to why the EPA denied her access to the meeting, comes to your office to find out if the agency has violated the Government in the Sunshine Act. What would they tell her?

- No, the agency has not violated the Sunshine Act. If an agency is headed by one individual, the agency is not subject to the Sunshine Act. This exception applies even if the agency head meets with agency subordinates to discuss agency business.

447 - Hansel and Gretel file an application with the appropriate government agency seeking legal emancipation from their parents. The agency denies their request, and they want to seek judicial review of the decision. The agency's lawyers seek dismissal of the case on the grounds that Hansel and Gretel failed to exhaust their available remedies within the agency regarding their application. Hansel and Gretel respond that they cannot afford the litigation costs of going through a series of agency hearings, only then to have to litigate in court if they lose within the agency. Will the court consider the "hardship on the parties" in this case as an exception to the exhaustion of remedies rule?

- No. According to the supreme court, the costs of litigation alone are not a reason to excuse the claimants from exhausting their available administrative remedies.

454 - Abe Simpson is a beneficiary of Medicare, and he wants to have a new, experimental surgery that supposedly reverses old-age senility. Medicare's regulations do not allow reimbursement for this type of surgery, and Abe wants to appeal the agency's rejection of his reimbursement claim. The relevant statute explicitly bars judicial review of any Medicare decision before a claimant goes through a lengthy process of administrative reviews, hearings, and appeals; in fact, the statute has more exhaustive "exhaustion" requirements than the APA. Abe seeks judicial review of the agency's decision as well as the statute's requirements that exceed those of the APA. Will Abe prevail?

- No. Congress can impose stricter rules about judicial review (e.g., exhaustion requirements) than it already has enacted in the APA. Because the APA itself is merely a statute enacted by Congress, Congress can supersede the APA's requirements by subsequent legislation (or waive the requirements for certain agencies or individual claims). In this case, the court will compel Abe to exhaust all his administrative remedies before seeking judicial review. Heckler v. Ringer.

445 - Esther Summerson was fired by the government agency where she worked, which is exempt from the APA. The agency's procedures provide for appeal of termination decisions first to the official who made the initial decision, seeking reconsideration. From there, the terminated employee can request review by a subordinate tribunal comprised of the peers of the official who terminated her. From there, the rules provide for appeal to the assistant deputy undersecretary of the agency, then to the deputy undersecretary of the agency, and finally to the secretary himself. Esther goes through the first four of these appeals and receives summary, unfavorable decisions each time. She then seeks judicial review, claiming that appealing to the secretary will be futile because the agency is clearly determined not to let her win. Does Esther's case fit into the "futility" exception to the exhaustion of remedies requirement?

- No. Futility for purposes of the exception to the exhaustion of remedies rule is not merely the likelihood that the claimant will lose those appeals, but rather that there are special factors in the case (e.g., an evidentiary issue) that guarantee the agency will not reverse itself (this is a very difficult burden to meet)

438 - What is the purpose of the "exhaustion of remedies" rule?

- Requiring parties to exhaust their administrative remedies before seeking judicial review of an agency action helps the courts to avoid meddling too much in the agency's work. It also allows the agency to correct most of its own erroneous decisions (thus saving the courts the time and trouble of reviewing those cases), and helps develop the record of the case and sharpen the issues before the matter comes here before a court.

448 - Noah owns a shipbuilding business, and the national labor relations board (NLRB) has received complaints about unfair labor practices at his shipyard - namely, that the 3 employees named Ham, Shem, and Japheth do all the work while the others spend their time trying to catch wild animals. The NLRB wants to hold hearings, but Noah disputes their jurisdiction over his shipyard, especially because he is not making boats for sale in interstate commerce, but rather one supersized boat that will hold tow of every animal in the world. Noah asks the court to determine whether the NLRB has jurisdiction over his business before he wastes time sitting through a hearing. Will the court grant review of this legal question before Noah has to endure an NLRB hearing?

- No. In Myers v. Bethlehem Shipbuilding Corp., the bedrock case in "exhaustion of remedies" doctrine, the Supreme Court held that Congress had given the NLRB power to determine whether a company was involved in interstate commerce and therefore under its jurisdiction, even though this is a legal question. The court said that the shipbuilder could seek judicial review only after the NLRB had made its own determinations in the hearings. Note that this case predates the enactment of the APA, but commentators think that the APA 7-4 based its rule partly on the Bethlehem shipbuilding case.

469 - May a plaintiff bring a generalized grievance to the court for redress?

- No. The court will deny standing to a claim that involves many plaintiffs all harmed to a small degree. For example, the Court has limited the ability to taxpayers to raise challenges, relegating their relief to the other branches of government and the political process.

452 - Leonardo Da Vinci applied for a patent levitating microwave oven and cluster cannon and the Patent and Trademark office denied his application. Da Vinci also lost at his hearing before the board of patent appeals and interferences, when Da Vinci appeals into court, he wants to bring up some new evidence and arguments to support his patent claim, but the PTO's lawyers insist that he should have exhausted those issues at his earlier hearing and cannot introduce them now. Is the government correct?

- No. The supreme court recently held in Kappos v. Hyatt, that normal exhaustion doctrine does not apply in proceedings against the patent and trademark office to obtain patent, because of the relevant statute's provisions in 35 U.S.C. 145. While this may seem like a holding limited to the intellectual property arena, it represents an important general principle: always check the agency's enabling statute, especially the provisions for judicial review. Depending on the nature of the administrative proceedings below, as defined by the statute, a court may not require exhaustion of remedies, at least concerning issue exhaustion.

412 - Suppose congress passes a statute that federal border patrol agents who want to contest workplace disciplinary actions for unexcused absences can appeal to a special tribunal, the border review board (BRB). Some of the aggrieved border agent's wanted to bring some constitutional challenges to the disciplinary actions, and argue that they should not bring such highbrow legal disputes before the BRB, but should argue them in federal court at the outset. The governing statute's wording and structure seems to say that all disciplinary appeals have to start with the BRB, and that agents can seek judicial review if they disagree with the RBR's decision. Can the agents bring their constitutional challenge in federal court, and save a step?

- No. These facts are similar to those in Elgin v. Department of Treasury. There, the supreme court held that it was "fairly discernible" from the stature's text, structure, and purpose that congress precluded district court jurisdiction over petitioners' claims. This is the current standard for "inferred preclusion" of judicial review - it must be fairly obvious in the statue that congress did not intend for courts to get involved in certain disputes

446 - Mary Stuart is upset about the conditions of her prison, and sues Elizabeth, the warden, and other officials for damages because of alleged constitutional violations related to the prison conditions. Elizabeth responds that the department of corrections has an administrative appeals process through which inmates can challenge specific prison conditions, but there is no availability for damages or individual compensation for wrongs suffered, must Mary exhaust administrative remedy before seeking judicial review?

- No. in this case, Mary is seeking damages as the remedy in her lawsuit, and this remedy is mot available through the administrative appeals that the department has in place. This fits into one of the exceptions for the exhaustion requirement.

360.Does the Government in the Sunshine Act require all agencies to open their meetings to the public?

- No. the Sunshine Act only requires agencies that are headed by a "collegial body composed of two or more individuals" to open their meetings to the public. In contrast, if an agency's head is a single individual, that agency is not subject to the Sunshine Act.

404 - Cosmo Kramer is upset with the U.S. Postal Service over two things. First, they do not enforce anti-chain-letter laws, at least against the person who sends him chain letters. Second, he thinks the Postal Service should have regulations limiting the amount of unsolicited catalogs and other junk mail he receives. When he decided to resort to litigation over these issues, will the same type of judicial review be available for both?

- No. the agency enforcement decisions are less likely to be "reviewable" by a court than an agency's failure to promulgate regulations. Regarding enforcement, agencies generally have prosecutorial discretion, because courts recognize that they do not have the time or resources to prosecute ever violate. See Heckler v. Chaney. Agency refusals to promulgate regulations, however, are more likely to have judicial review available than refusals to enforce a regulation, according to the supreme court in Massachusetts v. EPA Note: Kramer could also face hurdles regarding standing to bring these claims (the statues usually preclude private individuals with only generalized harms and grievances from suing agencies), and would probably lose on the merits, given the level of deference judges give to agencies in these cases

384. The Bungee Jumping Regulatory Agency has statutory authority to suspend and revoke licenses to operate a commercial bungee jumping facility. If the agency temporarily suspends that facility's license, it triggers an administrative review of the license or reinstate it after the suspension term ends. The Bungee Jumping Regulatory Act explicitly provides for judicial review of revocation decisions by the agency. When Plastic Man's license is suspended, he wants judicial review of the decision because his business will be shut down until the agency completes its revocation review. Will a court agree to review the suspension of the bungee jumping license?

- Probably not. Many courts would find that the explicit statutory provisions for judicial review of revocations would impliedly preclude review for suspension decisions.

450 - Drafty Dodger burned his government notification that he had been summoned for military service, and the Selective Service Administration referred him for criminal prosecution. At his trials, Drafty claims that he is statutorily exempt from the military because he was the sole surviving son of elderly parents. The trial court rejected this argument because Drafty did not raise it with the Selective Service (through its waiver application process and hearings) before his criminal prosecution. When Drafty appeals, will the higher court uphold this application of the "exhaustion of remedies" doctrine?

- No. there is an exception to the "exhaustion of remedies" requirement for cases where application of the doctrine would be too "prejudicial" to the claimant. The facts given here are taken from one of the leading cases where the supreme court applied the "undue prejudice" exception to the exhaustion of remedies requirement: McKart v. U.S. Although courts normally require a party to exhaust all administrative remedies before seeking judicial review (even for individual issues, like a statutory exemption from the draft), this case involved an actual forfeiture of judicial review for an element of a criminal prosecution.

417 - how does the doctrine of ripeness apply to judicial review of agency rulemaking?

- Normally, a party would wait until there is an actual dispute with an agency - such as the agency bringing an enforcement action against the private party based on the agency's regulations - to seek judicial review. Sometimes, however, a regulated party wants the equivalent of a declaratory judgment about the invalidity of a regulation before the agency starts any enforcement proceedings. This presents more complicated issues for "ripeness" than agency adjudications, which culminate in a recorded decision. Agency rulemaking constitutes a final agency action once the regulation becomes a "final rule." Even so, courts impose additional requirements of fitness for review and hardship to the party if review were denied until agency enforcement could run its course. These additional requirements are to satisfy the special ripeness concerns when an agency makes a rule but has not yet enforced it. See abbott laboratories v. gardner

460 - What is "redressability" for purposes of standing to sue?

- Not only must a party show that it has suffered an actual injury that is fairly traceable to the complained-of conduct, but it must also show that the court could fashion a remedy that is likely to redress the wrong suffered. The party must have a stake in the outcome of the case, such that a positive ruling would benefit it. If the court lacks power to relieve or repair the injury, the party lacks standing to sue. Mere speculation that the court could redress the injury is also not sufficient. See Lujan v. Defenders of Wildlife

369. What is "Pendent jurisdiction" for purposes of administrative law?

- Pendant jurisdiction is where a court already has jurisdiction to hear an appeal from the administrative agency's actions (either as a federal question or as provided in the agency's enabling statute), but the court also asserts jurisdiction over closely related state-law claims over which the court would not otherwise have jurisdiction.

393 - After Pooh fails in his initial challenge to the price increase for honey by the secretary of agriculture, because challenges by consumers are impliedly precluded by stature, he and his lawyer Piglet challenge the overall regulatory scheme created by the statue. They bring a convincing argument that the overall regime of allowing the secretary of agriculture to impose price controls on food is either a violation of separation of powers, or that the agency has been exceeding its statutory authority. Will Pooh's new attempt also face preclusion problems?

- Pooh might have a chance with this new lawsuit, because he is challenging the overall regulatory program, not just an individual agency action. Even where there is implied preclusion of certain plaintiffs challenging a specific agency action, courts may allow those plaintiffs (assuming they meet the other standing requirements, etc.) to challenge e the entire administrative program See Bowen v. Michigan Academy of Physicians. There the court held that preclusion of some administrative actions from judicial review does not necessarily mean that all agency activities are precluded. See also McNary v. Haitian Refugee Center, Inc.

381. What is "preclusion of judicial review" for purposes of administrative law?

- Preclusion is where the courts find that judicial review is not available - not for jurisdictional reasons, but because the statutory verbiage suggests (explicitly or implicitly) that the agency action in question is "not reviewable" APA 701 sets forth two types of preclusion of judicial review - when there is a statutory preclusion and when "agency action is committed to agency discretion by law."

373. Mother Hubbard appeals for Social Security disability benefits. The federal agency transfers her file to the state Disability Determination Services (a protocol established by statute), which decides that Mother Hubbard does not meet the eligibility requirements for this government benefit program. Mother Hubbard learns that her state Disability Determination Services agency is embroiled in scandals involving bribery, corruption, undue political influence on agency actions, nepotism in decisions about who receives benefits, and so on. She sues the agency in federal district court, as the money for the program ultimately comes from the federal government. Will the federal court have jurisdiction?

- Probably not, although it would have jurisdiction if she finishes her appeals process within the Social Security Administration and then appeals its decision in federal court. Her claims against the state Disability Determination Services agency appear to be related to nonfederal matters of bribery, inappropriate behavior at the state agency, and so on. A federal court would probably conclude that it does not have jurisdiction and would recommend that she file the claim in state court.

385. Congress amends the immigration laws to allow illegal immigrants who are skilled in acupuncture to obtain a special work permit as part of a special program to address a shortage of foreign-trained acupuncturists in the United States. The relevant statute says that denials of this acupuncture work permit should be reviewed only when the worker is being deported and claims her or she should be allowed to stay because he or she should have been eligible for the work permit. Jack Ripper is living in the country illegally and applies for the acupuncture work permit, claiming he has special training in administering pokes from sharp objects. When the agency denies his permit, he seeks judicial review of this adverse decision. He is not yet subject to any deportation proceedings. Will a court review this decision?

- Probably not. Courts would probably find that the statutory provision allowing for judicial review of denied permit applications during deportation proceedings would imply that judicial review is not available unless the worker is already being deported.

396 - When would a court find there is "no law to apply," for purposes of APA

- The "no law to apply" test was the original judicial understanding of the caluse in APA that bars judicial review from matters "committed to agency discretion by law." The idea was that Congress occasionally includes a providions delegating certain discrete decisions to an administrator in such broad terms that there is "no law to apply"; that is , no statutory benchmark against which the court can measure the administrator's decision. See Webster v. Doe. Note that these are relatively rare in administrative law.

380. Attorney Danny Crane needs to challenge an agency action on behalf of his client, whose water discharge permit was recently revoked. Not finding any provisions for judicial review in the relevant permitting statutes or regulation, on what basis can the attorney seek judicial review of the agency's action besides beginning a constitutional due process claim?

- The APA 7. The name for this is "nonstatutory review."

374. Why is there a presumption in favor of reviewability for agency actions?

- The APA creates a presumption in favor of reviewability for agency actions. The main policy justifications for this approach are that the courts are the traditional recourse for individual citizens aggrieved by the government's actions, and that it is necessary for courts to provide checks and balances to the other branches of government whose authority the agency is exercising.

421 - what is the relationship among ripeness, finality, fitness for review, and hardship for the parties?

- The APA restricts judicial review of agency decisions to "final agency actions", and this includes newly promulgated rules where the agency has completed the steps delineated in APA for rulemaking. Usually review of agency rulemaking occurs in the contexts of a party defending against agency enforcement of the rule. Some parties, however, want pre-enforcement review of the regulation. In these cases, courts require the regulated party to show that the issue is "fit" for judicial review (a purely legal issue not dependent on the facts of a specific case), and that the party would suffer undue "hardship" if forced to wait for the agency to bring an enforcement action (i.e., high compliance costs with the regulation, or statutory preclusion of challenges to the regulation after a certain date).

468 - What two sources from the basis for the limits on standing?

- The Constitution's "cases and controversies" limitation on judicial review, and prudential, judge-made doctrines form the legal basis for standing requirements.

379. Larry feels he is the victim of overzealous enforcement by the EPA, and he brings a suit challenging a recent final decision from the agency that was adverse to his interests. Before reaching the merits of his claim, the court must consider the EPA's Motion to Dismiss, which asserts there is no statute explicitly giving Larry the right to judicial review for this particular action. How will the court probably respond?

- The EPA will lose on this motion because there is a presumption in favor of judicial review, unless Congress has statutorily barred review of this specific agency action.

442 - What is the legal basis for the "exhaustion of remedies" requirement in seeking judicial review for administrative agency actions?

- The Supreme Court has held that the relevant enabling stature must include an exhaustion requirement, or the agency's own rules must self-impose the requirement. The APA itself does not impose an exhaustion requirement beyond the finality requirement.

402 - Are agency enforcement decisions subject to judicial review?

- The Supreme Court has interpreted APA to create a presumption against judicial review of agency prosecutorial discretion. An agency's decisions about when to regulate or whom to target with enforcement proceedings are a matter of prosecutorial discretion and are therefore "committed to agency discretion by law."

427 - In litigation over administrative activities, who usually raise the issue of the "timing of judicial review"?

- The agency itself normally raises it, arguing that the matter should not be before the court.

444 - When will a court apply the "agency bias" exception to the exhaustion of remedies requirement, for purposes of granting judicial review?

- The bias exception to the exhaustion of remedies requirement depends heavily on the facts of the given case. The general idea of the exception is that parties should not have to go through a series of agency hearings and appeals, before seeking judicial review, when the agency decision maker is too biased to make an objective determination. The factors courts apply in determining whether there is enough bias to warrant an exception are the factual record of the evidence of bias, and the procedural posture of the matter before the agency at the time.

425 - suppose the EPA publishes a notice of intended rulemaking in the federal register, stating that it plans to promulgate stringent new carbon dioxide emission standards for automobiles. It solicits public comments, and most of the comments come from environmental groups concerned about global warming caused by carbon dioxide emissions. The automobile industry maintains that it cannot possibly reduce carbon dioxide emissions very far, given the current technology, and immediately brings suit to challenge the proposed rule, asserting due process concerns, various procedural defects in the publication, and so on. What is the EPA's best argument for seeking dismissal of such actions?

- The case is not yet ripe because there is no final decision by the agency. APA requires "final agency action" before judicial review is available.

462 - The Defenders of Student Life are upset over a new policy of University of Nirvana, a state school. The rule would limit the existing student life policies to the university's campuses in the continental US, and would not apply to its overseas campuses where foreign students take classes. None of the defenders of student life have taken classes at the satellite campuses, nor do any of them have plans to do so. Even so, they are upset that the policies will not have uniform enforcement throughout the university system. They bring an action challenging the new policy in district court, stating that it is unfair to the students overseas not to have the same safeguards in place to challenge the administration's rules. How should the court rule?

- The case will be dismissed for lack of standing. Even though the students have an ideological stake in the outcome of the university's policies, they fail to show an actual injury to them, personally or individually. Compare Lujan v. Defenders of Wildlife, where the court held that the organizations concerned with environmental causes such as wildlife conservation did not suffer individualized, particularized harm.

A group of dishonorably discharged veterans from the Iraq War brings a challenge against the Department of Veterans Affairs (VA) for refusing to pay them benefits in the form of tuition reimbursement for law school. The VA cites a statue that makes veterans who receive dishonorable discharge from the military ineligible for tuition benefits in law school. The statute also includes a "no review" clause. This clause reads in relevant part "The decisions of the Administrator on any question of law or fact under any law administered by the Department of Veterans' Affairs providing benefits for veterans...shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions." The veterans claim that they received a discharge for unconstitutional reasons (based on religious convictions) and therefor the VA denied their benefits unconstitutionally. How Is the court likely to resolve this conundrum?

- The court will construe the "no-review" statute as pertaining only to agency decisions about benefits, but not to the constitutionality of the statute itself, as that would really constitute review of any action by Congress in passing the statute rather than an action of the agency in implementing it.

410 - Congress allocates $100M to a federal agency to build a "fence" along the southern border of the United States. The agency, however, eventually realizes that by using cheap immigrant labor, which is widely available in the area around the fence, it can complete the fence for half of the original projected cost. The agency decides to use $25M to build park-like, landscaped walkways along both sides of the new fence, and another $25M on developing pinpoint satellite surveillance of the entire border to catch illegal crossers. Countrymen for real American workforce labor is furious that the fence is being built using cheap immigrant labor instead of unionized American builders, and brings suit to stop the building of the fence immediately. Its pleadings challenge the agency's "misappropriation" of its budgetary allocation. What is the most likely result?

- The court will not agree to review the agency's budgetary decisions or use of funds. In Lincoln v. Vigil, the supreme court held that a "deeming" clause in the relevant statute, similar to the one mentioned here, barred judicial review of an agency's allocation of funds from a lump-sum budget allocation.

392. During a period of price controls on food products, the Secretary of Agriculture increases the permissible price of honey and honey products. Winnie the Pooh is very bothered that he can no longer afford to get a smidgen of something sweet, and hires his lawyer, Piglet, to file suit challenging the Secretary's decision. The National Honey Distributors Association also sues, claiming that the price increase will eliminate their tiny profit margin as the honey middlemen. The enabling statute provides that those involved directly in the trade or commerce of honey can seek judicial review after exhausting administrative remedies, which the Distributors Association has done. The agency seeks dismissal of both claims, arguing implied statutory preclusion. Who will prevail?

- The court will probably allow the case of the Distributors Association to go forward, if they have truly exhausted administrative remedies as required by statute, but Pooh is probably less fortunate. A court would probably hold that Pooh was precluded from seeking judicial review, by implication, from the fact that the statute specified the limited availability of judicial review for a discrete group of potential plaintiffs (those involved in the honey trade).

391. A new statute governing the importation of meat from other countries includes a provision allowing American meat producers to challenge decisions by the relevant agency approving imports that hurt the local producers' business. Peta Pan and Tinkerbell are members of an animal rights group that strongly opposes using animals for food. Peta and Tinkerbell challenge a recent agency approval of imports from Neverland. The agency files a motion to dismiss, arguing that Peta and Tinkerbell are precluded by implication under the statute from seeking judicial review of the agency's action. How will the court rule?

- The court will probably find that there is implicit preclusion of reviewability because the statute grants standing to a particular group (local meat producers who could be hurt by imports). Many courts would hold that this grant of standing to a specific group means that Congress intended to preclude other parties from obtaining judicial review for this type of agency action.

432 - OSHA announces a new rule that regional inspectors have a right to make unannounced site visits and inspections of regulated industry facilities, and that all parties subject to OSHA regulations are required to acquiesce to the inspections. Months go by, and OSHA has not yet made any unannounced inspections. Live Free or Die Corporation cannot stand the suspense, and challenges the rule in court, arguing that OSHA lacked statutory authority, failed to comply with the APP, and that the rule is unconscionable. What is the likely result in court?

- The court will probably find the challenge is not ripe because no instances of enforcement have occurred.

405 - The department of energy brings an enforcement action against green lantern for employing a new, unlicensed energy source involving a "power ring" and an old-fashioned lamp. The relevant statutes and regulations provide for a range of punishments, from enjoining the violators against future infractions to fines ranging from a few hundred to hundreds of thousands of dollars. Desiring to make an example of green lantern, the department imposes the maximum fines possible, even though iron man faced only an injunctive order for similar violations two years earlier. Green lantern's attorney decides not to challenge the department's regulations or the findings in this case, which are beyond dispute, but seeks judicial review solely on the severe penalty, which seems unfair and disproportionate to what another violate received. What is the result?

- The court will probably refuse to hear green lantern's challenge to the agency's penalty. As a general rule, the agency's choice of remedy is not subject to judicial review. See FTC v. Universal Rundle Corp, Butz v. Glover Livestock Commission Co., Inc. In Heckler v. Chaney, Justice Rehnquist said that the agency's choice of remedy could not be subject to review "unless patently arbitrary and capricious," suggesting that normal levels of arbitrariness or capriciousness would be immune to judicial scrutiny - at least when it comes to the agency's choice of remedy. Heckler v. Chaney

403 - Barabbas travels the country organizing political protests. He is upset that many city police departments are using a new tear gas against rioting crowds, and the new gas includes a prescription-strength muscle relaxant compound that the FDA has not approved for this weaponized application. Barabbas brings an action in court to compel the FDA to enforce its own regulations about permissible uses for the compound, which the FDA refuses to do. Will a court grant judicial review of the FDA's refusal to enforce its regulations?

- The court will probably refuse to hear this case. The facts are very similar to those in Heckler v. Chaney, except that Heckler involved the controlled substances used by states in their lethal injections when administering the death penalty. The supreme court held that agencies have discretion to weight the various factors that influence enforcement decisions - allocation of agency resources, prioritization of protecting the public, carrying out the President's regulatory agenda, and so on

401 - Congress appropriates $40M to the department of interior to use for discretionary grants for the preservation of historical landmarks. The statute allows the secretary of the interior to allocate grants "as he deems appropriate for the preservation of important historical sites, buildings, natural rock formations, and similar landmarks." The law does not specify any other factors that the secretary should consider in making the grants. Secretary Welansky makes a large grant for the rebuilding of the old cocoanut grove nightclub in Boston, the site of a historic fire in 1944. Attorney Gil Gunderson files suit challenging the allocation, saying that this is a preposterous waste of money and that Welansky might have had personal stakes in seeing the club rebuilt. Will the court review the grant decision?

- The court will probably refuse to review the Secretary's decision, under APA, which bars judicial review for decisions "committed to agency discretion by law." In Lincoln v. Vigil, the supreme court held that a "deeming" clause in the relevant stature, similar to the one mentioned here, barred judicial review of an agency's allocation of funds from a lump-sum budget allocation

451 - Dale Gribble is a pesticide contractor who regularly performs exterminations in public buildings for Housing Authority (HA). Officials at the HA learn that Dale has been introducing cockroaches and mice into housing project buildings under the cover of night to increase the number of contract opportunities he will have for extermination. HA seeks to bar Dale permanently from receiving contracts, but the administrative law judge reduces Dale's "debarment" to 18 months. The statute provides for the Director of HA to entertain appeals from administrative law judge decisions "solely at his discretion." Neither Dale nor HA seek the Director's review of the case; instead, Dale appeals directly into court under the APA's judicial review provisions. HA lawyers object that Dale has not exhausted his administrative remedies yet, and therefore judicial review is not available. How will the court rule?

- The court will side with Dale. These facts are similar to those in the leading case Darby v. Cisneros, in which the supreme court held that unless a statute or agency rules require additional procedures within the agency the administrative law judge's decision is a final agency action under APA 704 and is therefore subject to judicial review. The court held that the judiciary should not add to the exhaustion requirement beyond what is mandated by statute or regulation.

407 - Bart Simpson is in a juvenile detention center ("juvy," or prison for child criminals). The conditions are terrible, because the department of corrections rarely enforces any of its own rules about prison sanitation, maintenance of the facilities, or treatment of the juvenile "guests." Simpson brings an action in court to compel the department to enforce its prison safety and sanitation rules. What special factors here warrant against judicial review of the agency's inaction, besides the general presumption against review under Heckler v. Chaney

- The fact that Simpson apparently has alternative remedies, like bringing a habeas corpus action or even a action against the officials and guards in his own facility, warrant against judicial review of the department's inaction. Alternative available remedies make courts even less willing to review cases of agency inaction when it comes to enforcement. Note: Simpson's "desperate" status as a prisoner does not seem to matter; the plaintiffs in Heckler v. Chaney were death row inmates challenging the FDA's failure to enforce violations involved with the use of lethal injections as a means of execution

464 - When do members of Congress have standing to sue?

- The member of Congress must vote on an issue, be in the majority (win), and then have his order vote nullified by the actions of another branch. If a congressperson merely votes with the minority on an issue, there is no right created in losing to the majority. Also, a member of Congress may sue over interference with lawmaking powers. See Moore v. US House of Representatives (holding that House members have standing to sue when the Origination Clause is violated, depriving them of the power to originate revenue-spending bills in the House of Representatives).

472 - Why is there a ban on third-party standing?

- The party affected is in the best position to challenge the action. The primary party has a more complete picture of the circumstances and the situation. It avoids duplicative actions and give the primary claimant the first opportunity to assert legal rights.

415 - How does the administrative procedure act address the issue of ripeness?

- The provision in APA limits judicial review to "final agency actions." This phrase functions as a ripeness requirement in administrative law, barring judicial review where the agency's actions in a matter are not yet complete. Courts may impose additional ripeness requirements, but the APA's treatment of this issue is embodied in the "final agency action" provision.

359. What is the purpose of the Government in the Sunshine Act?

- The purpose of the Government in the Sunshine Act was to allow public access to agency meetings.

440 - What are the exceptions to the requirement that parties exhaust their administrative remedies before seeking judicial review?

- The supreme court had delineated 3 scenarios where a party does not have to exhaust administrative remedies before seeking review in court. These are cases where one of the following is true: 1. Requiring exhaustion would cause undue prejudice to the protection of the citizen's rights. 2. The administrative agency lacks power to grant adequate relief. 3. Remaining administrative remedies would be futile because of recalcitrant bias on the part of the agency or administrator.

409 - Why are courts more likely to review agency refusals to promulgate regulations than agency refusals to bring enforcement actions?

- The supreme court has articulate four main reasons: 1. Agency refusals to regulate are far less frequent than refusals to enforce existing regulations 2. Agency refusals to regulate are more likely to involve "legal as opposed to factual analysis." 3. Agency refusals to regulate in the face of challenges are already "subject to special formalities" under APA 4. Agency refusals to regulate, if they involve petitions for rulemaking from the public, carry their own procedural right for petitioners under APA See Massachusetts. EPA. In addition, note also that it is usually easier to find a statutory mandate for rulemaking than it is to find a statutory mandate for 100 percent enforcement. Enforcement decisions are more dependent on budgetary constraints than are rulemaking decisions. Finally, rulemaking is a lengthier process, giving agencies an incentive to procrastinate unless they receive prodding from the courts. See also American Horse Protection Assn. Inc. v. Lyng

372. Rumpelstiltskin believes the Small Business Administration has failed to honor some of his entitlements under law, but the statute does not state clearly whether jurisdiction has been given to a district court or the appellate court, even though it clearly provides for judicial review in federal court. How should this forum question be resolved?

- There is a presumption in favor of appellate court jurisdiction for cases involving administrative agency actions unless the statute clearly confers jurisdiction on district courts, like the Social Security Act.

470 - When might taxpayers have standing to sue to challenge an agency action?

- There might be sufficient connection between the taxpayer status and the claim when the spending of tax dollars goes to aid the establishment of religion, contrary to the establishment clause. The establishment clause is a constitutional limit on the spending power. See Flast v. Cohen; but compare Valley Forge Christian College v. Americans United for Separation of church and state (holding that taxpayers lacked standing to sue where the government transferred surplus land to a religious entity).

422 - Abbott operates a drug-manufacturing laboratory, and Costello is the head of the FDA. The FDA promulgates a new rule reporting drug manufacturers to be clear about "who's on first" on the product packaging - both generic name and manufacturer's proprietary name. Before Costello can begin enforcing this rule, Abbott files suit challenging the FDA's legal authority to require the clarifying generic names every time the product name appears on the packaging. Costello insists that this is not ripe for judicial review because the agency has not even begun enforcement proceedings yet. How will the court rule?

- These are the facts of the leading case on the "fitness" doctrine, Abbott laboratories v. Gardner, included in most administrative law casebooks. In the Abbott case, the Supreme Court held that the issue was indeed "fit" for review because the question of the FDA's authority to require the labels was a purely legal question.

400 - A statute authorizes the Director of the CIA to dismiss and CIA agent the Director "deems" to be a "threat to national security" as an agent. Agent 99 admits privately to her superior that she is secretly a devoted Communist. When word of this reaches the Director, he fires Agent 99 immediately. Agent 99 has served the CIA for 25 years, never had a security breach, and always received glowing reviews from her superiors. Agent 99 challenges her dismissal, saying there was no basis for it besides rumors and hearsay, and she had not opportunity to explain herself. Her attorney asserts that the Director's action was "arbitrary and capricious" because it was not supported by substantial evidence in the record. The CIA attorneys ask the court to dismiss the claim outright. How will the court rule

- These facts are similar to those in Webster v. Doe. There the supreme court held that the "deeming clause" in the statue precluded judicial review in light of APA. Note, however that the Court held that basic constitutional violations could still furnish the basis for judicial review of a decision even if there is a "deeming" statute.

411 - Stannis Baratheon owns an estate on which he hopes to build a castle, and he has brought in wagonloads of dirt to level the ground for construction. The army corps of engineers determines that it is federal wetland and orders him to remove the fill dirt and restore the property to its original condition. When Stannis challenges the order in court, the government lawyers argue that the court should infer from the text of the Clean Water Act that Congress did not want judicial review of trivial matters like dirt removal orders. How should the court respond?

- These facts come from the recent case Sackett v. EPA, in which the supreme court reaffirmed that the administrative procedure act creates a "presumption favoring judicial review of administrative action." The presumption is rebuttable, either by explicit statutory preclusion or by inference drawn from the "statutory scheme as a whole." Yet not even the exhaustive clean water act met the court's rigorous standard for inferring preclusion. See also free enterprise fund v. public co. accounting oversight

465 - What is the "legal right" test?

- This is an older standard of standing whereby the party suing must be an actual recipient of agency action, and not a party who is affected indirectly by agency action. See Alexander Sprung & Son, Inc. v. US, where the court denied relief to a company that was indirectly harmed by an agency action on another company. The court held that the indirectly harmed company did not have a legal right to sue.

399 - What are "traditionally not reviewable" decisions by administrative agencies?

- This is one of the main judicial approaches to decisions "committed to agency discretion by law" under APA. Justice Scalia introduced the concept in his dissenting opinion in Webster v. Doe, and the majority used it as part of the rationale in Lincoln v. Vigil. The idea is that certain decisions have always been left to administrators' discretion, and therefore should not be subject to judicial oversight now.

370. Spaceman Spiff asks his attorney to pursue litigation against a federal administrative agency, such as the FAA. The plaintiffs easily establish the court's jurisdiction over the matter (in fact, the agency stipulates to this). Then the court asserts jurisdiction over some related or ancillary state-law claims (e.g., the existence of criminal activity in the plaintiff's business), over which the court would not have had jurisdiction otherwise. Does the court have legitimate jurisdiction here?

- This is pendent jurisdiction, where a court already has jurisdiction to hear and appeal from the administrative agency's actions (either as a federal question or as provided in the agency's enabling statute), but the court also asserts jurisdiction over closely related state-law claims over which the court would not otherwise have jurisdiction.

378. A citizen action group called the Stop Unfair Enforcement commences litigation to challenge a new regulation promulgates by a federal agency by the appropriate informal rulemaking procedures. There is no clear provision in the relevant "enabling statute" addressing judicial review or citizen suits, so the plaintiffs bring their suit under the Administrative Procedure Act 702 - 704. What is the technical legal name for this type of action?

- This is referred to as nonstatutory review, because it does not base jurisdiction for judicial review on an enabling statute. Of course, "nonstatutory" is a bit of a misnomer because it is based on the APA, which is also a statute.

395 - What is the significance of a matter being "committed to agency discretion by law" for purposes of reviewability?

- This refers to the second type of preclusions from judicial review, besides specific statutory preclusion, mentioned by the APA. When a matter is "committed to agency discretion by law," it means the statue delegated complete discretion on this point (usually a very discrete point, not the agency's overall program), without mentioning judicial review. In such cases, the APA bars judicial review of these agency decisions. There are a few ways for an agency action to fit into this category of "committed to agency discretion law": situation where the is no law to apply, statues that use "deeming clauses" ("...as the administrator deems necessary..."), areas that were "traditionally unreviewable," and prosecutorial discretion.

423 - The FDA promulgates a new regulation requiring drug companies to include a CD-ROM with a video presentation about the risks and side effects of certain pharmaceuticals within the packaging of the drugs. Little orphan Annie's tiny drug lab cannot possibly afford to stay in business if it has to assume the extra cost of the extensive video production and disc duplication, so she challenges the new rule in court before the FDA even begins enforcing it. The FDA claims the rule is not "ripe" for review because it hasn't decided yet if it would even enforce the rule against small privately owned labs like Annie's Annie contends that if the rule is valid, she should close her business immediately, rather than spending a fortune on litigation defending against enforcement proceedings first. How will the court rule?

- This was the other issue in the case of Abbott laboratories v. gardner, addressing the question of "hardship" on the parties if they are forced to wait until enforcement proceedings run their course to challenge a rule. The Supreme Court held that the high cost of compliance would impose an undue hardship on parties if they had to wait for enforcement to test the validity of the rule.

457 - What are the constitutionally derived requirements of standing?

- To have standing to sue, the plaintiff must show an injury in fact, causation, and redressability.

459 - What constitutes "causation" for purpose of standing to sue?

- To show causation, a plaintiff's injury must be fairly traceable" to the challenged conduct. This means that the plaintiff must establish a connection between the governmental action of which it complains and the actual harm it suffered as a result.

364. Analyzing the Availability of Judicial Review

- Treat jurisdiction, reviewability, and standing as separate issues. Jurisdiction usually depends on a statute. Reviewability also depends on statutes but requires that you check timing, finality of agency action, exhaustion of administrative remedies, and statutory preclusion of review. (Reviewability is often clear-cut and might not be an issue warranting discussion in some questions.) Standing requires a showing of actual injury, causation, and redressability, as well as the zone of interests test. The cases on standing are very inconsistent, so this is the area where you must be prepared to argue both sides.

365. What is the basis for federal court jurisdiction over cases involving administrative agency actions?

- Two statutory sources provide the basis for federal court jurisdiction over actions by federal agencies: o Federal question jurisdiction under 28 U.S.C. 1331. Parties who meet the APA requirements for a cause of action and constitutional rules for standing have a question arising under federal law, so almost any case whose jurisdiction is not otherwise authorized by statute will come under this statute. o Specific statutory jurisdiction. Many enabling statutes pertaining to particular agencies include provisions giving federal courts jurisdiction for judicial review. Most give jurisdiction directly to the courts of appeals, meaning an appeal from a final agency action will go directly there. A few give jurisdictions to federal district courts, like the Social Security Act.

420 - what constitutes "hardship" for purposes of pre-enforcement judicial review for new regulations?

- When a party can show that compliance with a newly promulgated rule would be extremely costly, and that waiting for enforcement proceedings to run their course would present special problems for those involved, this "hardship" helps satisfy the ripeness requirements for reviewing agency regulations before the agency commences enforcement. "special problems" could include a statutory deadline for challenging the validity of a regulation, after which judicial review is precluded. See abbott laboratories v. gardner

363. Judicial Review of Agency Actions: Overview

- When a party feels aggrieved by some agency action- whether an unfavorable rule, an unfavorable decision in an agency hearing, the denial or revocation of government benefits or licenses - often the last recourse is in the courts. Federal agency actions are appealed into federal courts (some into district court and some directly into a circuit court, depending on the statute), whereas state administrative problems are usually appealed first into state courts. Most judicial review will come under the Administrative Procedure Act's provisions for this, but constitutional challenges might provide a separate basis. Administrative law courses usually include a study of the body of law governing the scope of judicial review, when it is available, and what standards of review courts will use in different types of cases.

418 - When does the promulgation of a rule or regulation become a final agency action for purpose of judicial review?

- When an agency completes the APA's notice-and-comment procedures for promulgating a new rule, it constitutes a final agency action for purpose of the judicial review provision in APA. Even so, challenging a new rule before the agency decides if, how, or when it will enforce the rule could be a waste of time (for the parties and for the courts). As a result, the courts also impose the requirements of "fitness for review" and a demonstration of "hardship to the parties" to satisfy these special ripeness concerns with pre-enforcement challenges to regulations. Most judicial review of regulations occurs in the context of enforcement proceedings, not in the pre-enforcement contest.

435 - Daddy Warbucks owns a bank and wants to offer a special type of "microloan" for impoverished orphans. He inquires with the banking commissioner, the administrator who regulates banking services, about whether this particular type of loan product would violate existing banking regulations. The commissioner sends a written reply stating that Daddy Warbucks would be in clear violation of the regulations and would be subject to immediate enforcement actions. Warbucks suspects the commissioner lacks the statutory authority to make this rule, and challenges it in court. Is this informal determination from the agency a final agency action that would be "fit" for judicial review?

- Yes, according to some federal appellate courts. See first national bank of Chicago v. comptroller of the currency. The ruling has the practical effect of prohibiting the bank from making these loans, so judicial review might be available.

474 - Can Congress override prudential limits on standing?

- Yes, because they are judge-made, and not constitutionally based. Congress can statutorily create a right to sue as long as the injury, causation, and redressability requirements are also met.

453 - The federal trade commission decides to ban all television commercials for candy and other sweets if the commercials target children. Commissioner Skinny announces at a news conference that as far as the FTC is concerned, all commercials for sweets that are broadcast during daytime television programming, or that use bright colors, cheerful music, or smiling young actors are presumptively "targeted at children." The National Panderers Association asks the FTC to disqualify Commissioner Skinny from involvement in their case involving commercials for Sugar Shock Soft Drinks, based on his indication that he had prejudged important factual matters for applying the rule. The FTC issues a decision that Commissioner Skinny was just expressing his opinion and is not subject to disqualification. Can the Panderers Association seek judicial review, before proceeding with more agency hearings, on the issue of the Commissioner's bias?

- Yes. In Association of National Advertisers v. FTC, the court considered these same facts (with different names). The court concluded that because the agency had already settled on the issue of its own Commissioner's bias (holding that he was not biased), it was appropriate to grant judicial review to the Association of National Advertisers rather than force it to exhaust its remedies within the agency, where it would almost certainly lose.

434 - Tywin Lannister hauls truckloads of dirt to build up an empty lot at Casterly Rock, in order to stop it from flooding and make it useful for a home site. Some of the loose dirt eroded into the nearby Quahog River. The EPA sent Lannister a letter stating that Lannister had discharged pollutants into the Quahog river without a permit (a violation of the Clean Water Act), and directed him to restore the site according to EPA guidelines. The EPA denied Lannister's request for a hearing. Lannister sued the EPA in court, seeking judicial review of the order. The EPA claims there is no final agency actions yet, so therefore judicial review is impermissible. Can Lannister obtain judicial review at this stage?

- Yes. In Sackett v. EPA, the Supreme Court found that the owners could bring a civil action under the APA to challenge the EPA's order. APA 704 allows judicial review of final agency actions for which there is no other adequate remedy in a court, and the EPA's compliance order had all the hallmarks of APA finality. The EPA "determined" rights or obligations, requiring the landowners to restore their property according to an agency-approved plan and to give the EPA access. Also, the EPA's order subjected the landowners to double penalties for noncompliance in future enforcement proceedings.

394 - Congress passes a stature creating a new immigrant guest worker program, specifically for groundskeepers at public schools. The statue explicitly precludes judicial review of individual decisions by the agency regarding granting, denying, or revoking work permits for foreign groundskeepers at public schools. Groundskeeper Willie, a Scottish immigrant, has been working at Springfield Elementary for several years, and the immigration agency suspends his work permit after an incident where he chases children around the schoolyard with a lawn tractor in a state of blind rage. Willie's lawyer, Lionel Hutz, decides to bypass the preclusion verbiage in the stature by filing a class action challenging the constitutionality of the agency's procedures, as well as the statue itself. Does Hutz have a chance with this argument?

- Yes. The facts here are similar to those in McNary v. Haitian Refugee Center, Inc., where the supreme court held that statutory preclusions of judicial review for individualized determinations by the agency did not apply to class actions that challenge the constitutionality or statutory legality of the agency's procedures overall.

346. Regarding the FOIA Exemptions, what is the meaning of "Low 2" and "High 2"?

a. "Low 2" and "High 2" are judicial jargon for types of materials covered under FOIA Exemption 2, materials "related solely to the internal personnel rules and practices of an agency." Until 2011, many courts applied Exemption 2 very broadly, siding with the agencies against disclosing anything that related to the way federal employees did their job. "Low 2" referred to traditional personnel matters and "High 2" referred for any other internal documents whose disclosure might facilitate the circumvention of agency regulations or statutes. Exemption 2 yielded such favorable case outcomes for agencies that agencies would rely on this Exemption rather than others that seemed more relevant to the materials in question. Milner v. Department of Navy, rejected this idea and held that Exemption 2 applied only to "Lower 2" type materials.

245. The FDA decides to promulgate regulations about the temperature of milkshakes when sold to consumers, after receiving numerous complaints that a certain fast-food chain's milkshakes are too thick (frozen too hard) to pass through a straw into the average child consumer's mouth. This time, Congress has helped the FDA by specifically authorizing it to regulate the temperature and viscosity of milkshakes, and the FDA had an uneventful, technically perfect notice-and-comment period for the regulation. Krusty Burger challenges the regulation under the Due Process Clause of the U.S. Constitution, alleging that the regulation deprives them of liberty and property. What is the likely reaction of a court to this argument?

a. A court will probably side with the agency. Due process concerns apply mostly to adjudication and rarely to rulemaking, and this agency action sounds more like rulemaking.

292. What is a legislative rule?

a. A legislative rule in administrative law is a regulation or policy decision that adds to or substantially changes legal requirements on the regulated parties. In other words, it has the force of law (is legally binding) on agency proceedings and on the courts, like a statute would be.

343. What is a "reverse FOIA" suit?

a. A private party whose (otherwise confidential) information is about to be released by an agency to a third party, under a FOIA request, may bring a "reverse FOIA" action to prevent disclosure under the APA's judicial review provisions. Note that this does not apply to trade secrets, which are brought specially under the Privacy Act and APA 706(2)(A).

290. ANALYZING CHOICE OF POLICYMAKING PROCEDURE ISSUES

a. A reasonable argument could be made on both sides of this use. Rulemaking is both ore thorough and more efficient. Adjudication does a better job of considering exceptional factors in individual cases. Courts impose more scrutiny when an agency chooses adjudication, because this overlaps with the court's role. Assume the agency has discretion to do either unless the enabling statute explicitly requires one form or the other.

334. Can a party that obtains information legally through a FOIA request be subject to civil or criminal liability under other statues for obtaining or using that information?

a. A recent decision, Maracich v. Spears, held that parties who obtain information via a FOIA request could still be subject to other legal prohibitions against obtaining or using such information. In Maracich, plaintiff attorneys used a FOIA request to get client names from the state DMV for a class action against car dealerships. Prospective clients who received solicitation letters sued the lawyers for violating the federal Driver's Privacy Protection Act (DDPA). The Supreme Court held that the lawyers could be liable under the DPPA for obtaining the info via FOIA request and using it.

344. What types of government records come under the "specifically exempted by statute" exception to FOIA?

a. APA 552(3) includes three types of statutes that can be exempt records from disclosure: i. Statutes that identify specific types of records and give the agency no discretion to authority to disclose them (these are specifically identified types of records) ii. Statutes that establish general criteria for not disclosing certain records (these are records with characteristics meeting certain disqualifying rules) iii. Statutes prohibiting certain matters from being disclosed (instead of disqualification being based on the type of documents, these statute pertain to the content of the documents themselves, barring certain content from disclosure)

252. What actions does APA 556(c) authorize an administrative law judge to do at a formal hearing?

a. APA 556(c) authorizes administrative law judges to do the following: i. Administer oaths and affirmations ii. Regulate the course of the hearing iii. Issue subpoenas authorized by law iv. Rule on offers of proof and receive relevant evidence v. Take depositions or have depositions taken vi. Hold settlement conferences between parties vii. Dispose of procedural requests or similar matters viii. Make or recommend initial decisions

333. May an agency charge a requesting party feeds incurred in resolving issues of law or policy while processing the request?

a. Agencies are allowed to charge for document review, in addition to search and duplication costs, if the records are requested for commercial use. For noncommercial requests by the news media or educational and scientific organization, the agencies can charge only duplication fees. On all other noncommercial requests, the agency can charge duplication and search fees (but not for document review). Agencies can choose to waive fees. See APA 552(a)(3)(D).

301. What sanctions may an agency impose?

a. Agencies may impose any sanction within their statutory authority.

299. What is agency prosecutorial discretion?

a. Agency prosecutorial discretion means that an agency has a great deal of discretion when it comes to deciding which problems in its jurisdiction it will focus on and target. Heckler v. Chaney.

293. What is an "interpretative rule" for purposes of APA 553(b)?

a. An interpretive rule is almost the opposite of the legislative rule; that is, interpretive rules do not change or add to the legal requirements on the regulated parties. Interpretive rules simply pronounce the agency's position about the meaning of existing statutes and regulations that pertain to the agency's mission. Interpretive rules are exempt from notice-and-comment requirement under the APA. Note, however, that APA 555(e) requires a brief statement of reasons for informal policymaking.

320. How do agencies obtain data and information from private entities related to regulatory compliance?

a. Besides conducting premises inspections, agencies obtain information through their subpoena powers, and by requiring the regulated parties to maintain and submit records of their activities.

349. Ted Chaough is a longtime business rival of Don Draper and Draper's advertising agency, Sterling Cooper. Sterling Cooper was the subject of an investigation by the Federal Communications Commission, but Sterling Cooper settled with the agency before an enforcement proceeding could get very far. Chaough files a FOIA request for the FCC's files on Sterling Cooper, hoping to find some dirt. Sterling Cooper objects to the disclosure, citing FOIA Exemption 7(C), as the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." When Chaough pursues his FOIA claim in court, who will prevail?

a. Chaough will prevail and Sterling Cooper will lose. These are nearly the same facts as FCC v. AT&T, in which the Supreme Court held that the "personal privacy" clause of the law enforcement exemption (Exemption 7) does not apply to corporations, but only to individual people. Note that Sterling Cooper possibly could prevent disclosure under Exemption 4 of "trade secrets, commercial, or financial information" that was obtained from Don Draper, as long as the information was privileged or confidential.

321. How do courts analyze the legitimacy of an agency's subpoena for documents?

a. Courts to use a three-part test to assess the validity of agency subpoenas: i. The subpoena power must be explicitly authorized in the agency's statute. ii. The information requested must be relevant to a proper subject of an agency inquiry. iii. Demand for information must not be unreasonably costly in terms of identifying or locating the right documents, copying, or submitting them. See Oklahoma Press Pub. Co. v. Walling; Endicott Johnson Corp v. Perkins. Mnemonic: Authorization, Relevance, and Cost= ARC

322. How do courts analyze the legitimacy of an agency's recordkeeping requirements imposed on a regulatory agency?

a. Courts use essentially the same standard in analyzing the legitimacy of agency recordkeeping or submission requirements that they use for agency subpoenas: i. The requirement must be authorized in the agency's statute. ii. The information requested must be relevant to a proper subject of agency inquiry. iii. Demand for information must not be unreasonably costly in terms of identifying or locating the right documents, copying, or submitting them.

295. When must an agency use formal, rather than informal, methods of policymaking?

a. Courts will require agencies to use formal policymaking only when the statute explicitly requires it—usually by referencing APA 556 or by including the phrase "on the record decision." The default rule is that agencies can use informal policymaking when they so choose. Even if the statute requires an agency to hold "hearings" in making certain decisions, the Supreme Court has held that this could mean a paper review rather than literal in-person oral argumentation. See U.S. v. Florida East Coast Railway.

249. What types of notice for formal hearings does the APA require agencies to provide to the parties?

a. For formal adjudication, the APA requires the agency to provide notice of the following: i. Time, place, and nature of the hearing ii. The legal authority under which it is to be held iii. Basic "matters of fact and law" asserted by the agency—APA554(b)(3)—(in license suspension hearings, this must include notice of the facts or conduct that warrants suspension—APA558(c)) iv. If private parties are moving parties in the hearing, other parties must receive notice of issues of law and fact v. Prior to hearing itself, agency required to give opportunity for settlement or other resolutions on issue to obviate the need for the hearing—554(b)—if time, nature of proceeding, and public interest permit

313. Can administrative agency officials conduct inspections or searches of private homes without a warrant?

a. Generally not. The Supreme Court is stricter about the Fourth Amendment's warrant requirement when the search or inspection involves a private residence rather than a place of business. See Camara v. Municipal Court. Even so, agencies do not have to show the type of probably cause required in criminal cases to obtain a warrant to search (i.e., individualized or particularized suspicion). There is an important exceptions to the warrant requirement for residences of those on parole or probation. See Grifffin v. Wisconsin. In addition, agencies can make consent to home inspections a condition of receiving welfare benefits. See Wyman v. James.

282. Why does it matter, for purposes of agency procedure and judicial review, if an agency's action is more like rulemaking or more like adjudication?

a. If the agency decision is more legislative (i.e., rulemaking), it normally will not have to hold formal hearings, and a court will review it for technical compliance with the APA's notice-and-comment rules and the "arbitrary and capricious" test. On the other hand, if an agency decision is more adjudicative, courts will expect it to hold hearings and might review factual findings based on the "substantial evidence" test.

284. What is the nature of the Supreme Court's famous comparison between the Londoner case and the Bi-Metallic case?

a. In U.S. v. Florida East Coast Railway, the Court compared these cases to show when decisions by the same agency are more adjudicative or more legislative. Both cases involve the imposition of real property taxes in Denver, early in the 20th century, reaching opposite conclusions about whether the agency imposing the tax needed to hold a hearing beforehand. In Londoner v. Denver, the landowner was subjected to an individualized tax levy to cover the city's costs of paving the street in front of his house, and the Court held that a hearing was necessary because the individualized nature of the decision made it more adjudicatory. In contrast, Bi-Metallic Investment Co. v. State Board of Equalization, involved a challenge to a general increase in the mill rate for everyone in the city, which seemed more legislative because of its general applicability, so no hearing was required.

342. If an agency is willing to disclose information that is covered by a FOIA exception, is it prevented from doing so?

a. No. An agency can voluntarily provide access to records that FOIA exception would allow the agency to withhold, except for trade secrets covered by the Trade Secrets Act, which must be kept private.

276. What is the difference between "Article I judges" and "Article III judges"?

a. Judges in the federal court system are Article III judges, meaning they are part of the judicial branch for purposes of the U.S. Constitution. Article I judges, or ALJs, are a creature of statute (5 U.S.C 556(b) and agency enabling statutes), which means Congress delegated some adjudicatory powers to the ALJs under Article I's authority for enacting legislation. In practice, ALJs do not preside over criminal proceedings or jury trials or impose prison sentences. Also ALJ decisions are "recommended decisions" or "initial decisions" that the agency head must approve to make them binding. See 5 U.S.C. 557(b). Typically Article I judges handle only one type of case—those coming under the jurisdiction of the agency for which they work. Article III judges, in contrast, can hear any type of federal case; are independent of the other branches of government; and can issue orders, final judgments, and prison sentences.

294. What is a general statement of policy for purposes of APA 553?

a. Like interpretive rules, general statements of policy do not change or add to the legal requirements on the regulated parties. Rather, they are declarations of how the agency intends to allocate funds for programs and projects, its enforcement priorities, and so on. See e.g., Lincoln v. Vigil; Community Nutrition Institute v. Young. General statements of policy are exempt from the APA's notice-and-comment requirements. Note, however, that APA 555(e) requires a brief statement of reasons for informal policymaking.

246. What is a "statutory hearing right" for purposes of administrative law?

a. Many enabling statutes require an agency to provide a formal hearing for certain parties under its jurisdiction. In many cases, these require formal, on-the-record adjudication of claims, such as claimant's eligibility for Social Security disability benefits. In that case, the agency must follow the procedures for formal adjudication specified in APA 556-557. Other statutes require less formal hearings but still delineate the procedures that the agency must use. In any case, the hearing must provide the applicant with a genuine opportunity to prevail; it cannot be a sham hearing.

345. FOIA Exemption 2 covers material that is "related solely to the internal personnel rules and practices of an agency." What is the scope of this exemption?

a. Milner v. Department of Navy, held that Exemption 2 has a narrow, applying only to matters relating to hiring and firing, work rules and discipline, compensation and benefits, lunch hours and parking. Previously, lower courts were applying Exemption 2 very broadly to include almost anything involving agency employees and their tasks—any documents that were "predominantly internal." Courts used the moniker "Low 2" to refer to traditional personnel matters and "High 2" to refer to any other internal documents whose disclosure might facilitate "circumvention of agency regulation." The Supreme Court rejected this line of cases and held that Exemption 2 should apply narrowly to personnel matters.

319. Agent Muller leaves the FBI and becomes an inspector for OSHA. When he visits a business called the Bar Is Low to check for workplace safety violations, the owner refuses to give him access without a search warrant. Agent Muller patiently explains that this is a routine inspection and that administrative agencies do not need search warrants, unlike the FBI. Is Muller correct?

a. No, he is not correct. The Bar Is Low can refuse to let him inspect the premises without a warrant. The general rule is that agencies need to get a search warrant to inspect the business's premises without the owner's consent. See Marshall v. Barlow's Inc. Most businesses consent to inspections from administrative agencies without demanding a warrant; and the agency does not have to show "probable cause" in the sense that the FBI would to search the premises of a suspected criminal.

351. On multiple occasions, Ronald has tried to contact Jack, and employee at the FDA's Department of Oversight for Fast Food. Each time Ronald has called, Jack's secretary informs him that Jack is either out sick or on vacation. Frustrated by his inability to contact Jack, Ronald submits a request under the FOIA to the agency requesting a copy of its policies on sick leave and vacation time. Will the agency likely provide these documents to Ronald?

a. No, the agency most likely will not provide these documents to Ronald. One of the FOIA exceptions exempts records regarding internal agency personnel matter.

314. Hank Hill has an ongoing dispute with the municipal building code officials over a new ordinance requiring homes to have toilets that use very little water when they flush. A code enforcement officer makes a surprise visit to Hank's home to inspect his toilet to ensure that it complies with the new ordinance. Hank refuses to permit the officer entry without a search warrant, so the officer issues a citation fining Hank $500 for refusing an inspection. Will a court uphold the fine when Hank challenges it in court?

a. No. Administrative officials usually need to obtain a search warrant to inspect a private residence, even to check for compliance with building codes. Camara v. Municipal Court. Of course, most people allow officials to conduct inspections without a warrant, and when someone does require a warrant, the official can almost always return with one the same day.

271. The Federal Emergency Management Agency (FEMA) holds hearings to determine which victims of disasters are eligible to receive free government housing temporarily. The agency is overwhelmed with hearing requests and a backlogged docket. FEMA uses informal rulemaking to promulgate a list of factors that automatically disqualify someone from the program, such as refusal to obey an evacuation order before the disaster struck, and the availability of relatives nearby to provide accommodations for the displaced parties. An applicant who lost her hearing challenges the administrative law judge's reliance on these factors, asserting that FEMA lacks statutory authority to promulgate such rules, and that the failure to address substantial comments renders the adoption of the rule arbitrary and capricious. FEMA asserts that its guidelines are no different than the "grids" used by other agencies to streamline adjudications. Is FEMA correct?

a. No. Although the use of regulations to narrow the scope and findings of administrative hearings is generally acceptable, under Heckler v. Campbell, the agency must have statutory authority to promulgate such regulations and must adopt them in the manner prescribed by law, including APA formalities for rulemaking. Here, it is unclear whether FEMA—an agency created by an executive order from President Carter, without a clear enabling statute—might lack the statutory authority to promulgate regulations. In addition, ignoring the substantial comments submitted by advocacy groups might indeed violate the "arbitrary and capricious" test courts use to review agency rulemaking.

270. Mr. Smithers calls the Federal Trade Commission on behalf of Mr. Burns to ask whether the bulldozing of all their competitors' factories in the middle of the night would constitute an unfair trade practice. Cletus Spuckler recently started working at the FTC answering phones in the afternoon, and he tells Smithers that the proposed action sounds fine under the existing laws. Cletus assures him that he would certainly not be subject to an enforcement action by the FTC. Mr. Burns proceeds with his nefarious plan, and is shocked when the FTC prosecutes him for unfair trade practices based on these incidents. Smithers and Burns claim that estoppel applies to the FTC in this case because their employee, a "slack-jawed yokel who took our phone call," gave incorrect advice. Will the courts deem the FTC to be estopped by its employee's erroneous representations?

a. No. An agency will be bound by its employees' statement only when made by officials with clear authority to make policy or decide cases, and then only if no payment from government funds is required. In other words, there is no estoppel for most phone advice, guesses from the receptionist, or information from other low-level employees or case workers.

279. Desiree O. Freemoney wants to collect Social Security disability benefits because of a rare psychological condition that makes her excessively, painfully bored at work. Receiving disability benefits instead of working would allow her to pursue more interesting activities, like watching television all day. When she arrives for her benefit hearing, however, she learns that the administrative law judge is an employee of the Social Security Administration, the very agency that is trying to deny her claim. She claims that she has a constitutional right to have an impartial, neutral decision maker preside over her hearing—that is, someone not employed by the agency. Is she correct?

a. No. Even though ALJs are employees of the agency for which they hear cases, they maintain enough independence that Desiree has nothing to fear in this regard. The agency cannot reward or punish the ALJs based on how they decide their cases, and the hiring and firing of ALJs are handled by other agencies devoted to personnel management. ALJs are notoriously resistant to any attempts by agencies to influence their decisions or limit their discretion. On the other hand, Desiree should be worried about the fact that her ALJ specializes in these types of cases and is likely to be savvy enough to see through bogus claims or malingering on her part.

341. Are inter- and intra-agency memos that discuss preliminary issues regarding a claim subject to FOIA disclosure?

a. No. Exemption 5, which exempts interagency and intra-agency memoranda from FOIA disclosure, generally protects the release of preliminary memos that discuss the agency's deliberation process. See NLRB v. Sears Roebuck. Note that although Exemption 5 prevents disclosure of memos regarding preliminary actions by the agency, it does not apply to memoranda dealing with final agency decisions on agency matters.

331. Are all records located on an agency's premises considered "agency records" for the purposes of the FOIA?

a. No. For the purposes of the FOIA, there are two requirements that must be satisfied for requested materials to qualify as agency records. First, the requested materials must have been created or obtained by the agency in the course of performing the agency's official duties. See DOJ v. Tax Analysts. Second, the agency must be in control of the requested documents at the time of the FOIA request. See Kissinger v. Reporters Committee for Freedom of the Press.

286. Heavy Metal Music Company is raging mad about a new regional noise ordinance, with "quiet listening" mandates imposed by the State Board of Sound Equalization. Heavy Metal insists that it should have had a right to a personal hearing to contest the ordinance, because it affects the company must more than other nearby businesses like Montessori Schools and retirement homes. Should Heavy Metal have a hearing?

a. No. In Bi-Metallic Investment Co. v. State Board of Equalization, the Supreme Court held that local property owners did not have a right to a hearing to contest a citywide increase in the tax rate. Because it was a rule of general applicability, affecting a large, diverse class of people in the same way, it was more of a legislative rule than an adjudicatory rule, and a hearing was unwarranted.

353. After reviewing Johnny Appleseed's claim that the Environmental Protection Agency (EPA) wrongfully withheld agency records, the court held that the EPA did not wrongfully withhold the records based on the agency's general argument that the requested record fell within FOIA Exemption 9. In explaining its decision, the court stated that the exemptions to the FOIA should be broadly construed in favor of the agency claiming the exemption. On appeal, will the court's decision likely be upheld?

a. No. In Rose, the Supreme Court stated that the dominant objective of the FOIA is to allow public access to government records, and for the purpose of comporting with this basic underlying objective, namely disclosure, the FOIA exemptions should be narrowly construed. See Department of the Air Force v. Rose. Accordingly, the Court reviewing Appleseed's appeal should correct the underlying court's incorrect assertion regarding the construal of the FOIA exemptions.

338. Sherlock Holmes submits a FOIA request to the Food and Drug Administration, seeking the formula for a particular veterinary sedative used on hounds decades ago, but which is no longer on the market. The FDA denies the request and wins the subsequent litigation by Sherlock. Sherlock's close friend, Watson, then submits a FOIA request for the exact same information, which the FDA ignores. Watson was not involved in Sherlock's litigation at all, and when he asserts his FOIA claim in court, he raises new legal arguments in favor of disclosure. May the court treat Watson as a virtual representative of Sherlock, and dismiss the case summarily?

a. No. In Taylor v. Sturgell, the Supreme Court rejected the concepts of "virtual representation" for purposes of FOIA suits, which lower courts had used to bar subsequent parties from requesting (and litigating over) the same information especially when using different legal arguments.

259. Jesse James has an administrative hearing before the Bureau of Alcohol, Tobacco, and Firearms. He wants to be accompanied by his attorney, Doc Holliday. The Bureau refuses to let the attorney attend the hearing and forces him to wait outside the hearing room. The Bureau maintains that the hearing renders only a "recommended decision" under APA557, which mirrors the preprosecution "indictments" issued by a grand jury in the federal courts—which attorneys are not permitted to attend. Is the Bureau correct that it can exclude the attorney?

a. No. Parties in an administrative hearing have a right to be represented by counsel at the hearing. The analogy to grand jury indictments is interesting, but not relevant under the APA. Note, however, that if a party brings a nonlawyer to the hearing (perhaps a friend), the nonparty may not be entitled to have counsel present. APA 555(b) provides a right to counsel to any party for "any agency proceeding."

269. The FTC adopts a new police about product-tying arrangements in antitrust cases, taking the position that if the secondary product that is tied to the purchased product is free to the consumer, there is no violation because consumers are not harmed, only competitors. In its first round of litigating this issue in an administrative hearing, involving multiple competitors in an industry, the FTC loses on this point. In the next administrative adjudication, the FTC relitigates the exact same issue with different parties, and this time prevails. The losing parties challenge this in court as a violation of "res judicata," as the issue was already ruled on by a previous hearing. Are the losing parties correct?

a. No. Res judicata is a much weaker concept in the administrative hearing context than in regular courts. Although an agency probably cannot relitigate the same issues with the same parties, it almost certainly can relitigate those issues with different parties.

329. When making a request for disclosure under the FOIA, must the person request "identifiable documents"?

a. No. The Act merely requires that requests "reasonable describe" the records sought and that they be submitted in accordance with the agency's published procedures.

354. The Banking Commissioner requires banks to submit a large volume of confidential financial information, including information about their outstanding debts and outstanding loans, as well as their cash reserves, to the Banking Commission. As part of his class preparation, the Nutty Professor files a FOIA request for filings made by First National Bank to the Banking Commission. The Commissioner denies the professor's request. In response to the denial, the professor brings an action to compel disclosure under the FOIA. Will the professor's claim prevail?

a. No. The Nutty Professor's claim will not likely prevail, based on Exemption 8 of the FOIA. This FOIA exemption specifically exempts disclosure of operating or condition reports that are prepared by, on behalf of, or for an agency responsible for regulating or supervising financial institutions.

302. Cruella DeVille's company, Furs of the World, Inc., claims that the sanctions placed on it were overly harsh compared to similar sanctions placed on a competitor/ Will DeVille prevail, based on this argument?

a. No. The Supreme Court has held that absent statutory restrictions, an agency is free to impose whatever sanctions are within its statutory authority. There is no consistency requirement when it comes to the severity of sanctions. See Butz v. Glover Livestock Commission Co., Inc.

316. Yosemite Sam owns a small, unprofitable gold mine in a remote area of western Texas. Elmer Fudd, an inspector with the Department of Labor, wants to inspect the working conditions in the mine. Yosemite Sam refuses to allow Fudd access to his mine unless Fudd get a valid search warrant, and the nearest magistrate is two days' drive away. Elmer Fudd insists that this is simply the routine, semiannual inspection that the Department conducts of every mine, as authorized by the Federal Mine Safety and Health Act. Yosemite seeks judicial review, insisting that he has a right to refuse inspections unless the government official comes with a warrant. Will he prevail?

a. No. The Supreme Court held in Donovan v. Dewey, that mines were a "pervasively regulated business" under the Federal Mine Safety and Health Act, and therefore no warrant was necessary for the routine inspections conducted by the agency.

348. Rafe McCawley leads a nonprofit dedicated to raising community awareness about the danger of Navy offshore training exercises. McCawley files a FOIA request for Navy documents relating to the effects of explosions at several locations and the Navy's storage practice for unused explosives. The Navy denied the request, invoking Exemption 2, which covers "internal agency personnel rules & practices." McCawley challenges the denial of his FOIA request in court. Will the Navy under this Exemption?

a. No. The Supreme Court held that Exemption 2 encompasses only records relating to employee relations and human resources issues ("the operative word is 'personnel,'" Justice Kagan wrote). The facts here are similar to those in the recent case Milner v. Department of Navy. The Court rejected a recent trend among lower courts to include almost anything, including internal guidelines or inventory directions, under exemption 2, following the lead of the D.C. Circuit. The Court noted that the Navy might be able to use other exemptions (the most obvious being Exemption 1 for national security), but the Navy had relied solely on Exemption 2 because of the recent trend for courts to use a broad definition.

267. Mr. Burns is appointed Regional Director of the National Labor Relations Board's Office of Hearings and Appeals. Burns believes that the administrative law judges in his region are issuing a disproportionate percentage of decisions in favor of the labor unions. He imposes a performance review regimen that evaluates each judge based on the number of rulings favorable to the unions instead of corporate management interests, the time taken to hold hearings and render decisions, and attendance at training sessions and NLRB meetings designed to educate the administrative law judges about the merits of the Director's pro-management policies. When a group of the judges challenge these reforms in court, Mr. Burns asserts that they lack standing and that such measures are precluded from judicial review. Is he correct?

a. No. These facts are similar to those in Nash v. Califano, where the court held that such attempts to micromanage the activities and decisions of administrative law judges could have unlawfully interfered with the independence of the adjudicators as required under the APA. Although not reaching the final merits of the case, the court held that administrative law judges should have standing to challenge agency infringements on their independence and that such "managerial techniques" could be subject to judicial review.

318. Bad Bad Leroy Brown owns a junkyard in New York. His junkyard is unlicensed, contrary to state regulations, and he does not keep required records of junked automobiles that come into his yard for "chopping." An inspector visits his junkyard and finds several stolen vehicles being disassembled in the junkyard garage. When Leroy faces criminal charges for possession of stolen property, he contends that the inspection was an illegal search because the entire regulatory regime that authorized the inspection was merely a pretext for bypassing the warrant requirements of the Fourth Amendment. Will the court agree with this argument?

a. No. This was the argument made in New York v. Burger, where the Supreme Court rejected it and held that regulation of junkyards was a legitimate, compelling government interest in the fight against automobile theft and that the inspections were a legitimate part of the regulatory regime.

297. B&O Railroad brings an action to challenge a devastating minimum rate change imposed by the Railroad Commission. The Commission's governing statue authorizes it to set rules and rates "after a hearing," but the Commission merely solicited written comments and objections from the railroad companies after it issued proposed rates, and declined requests for oral hearings. Will the court reverse the Commission and compel it to hold forma, "live" hearings?

a. No. these facts are similar to those of U.S. v. Florida East Coast Railway, where the Supreme Court held that the statute's "after a hearing" verbiage was vague enough to permit the agency to conduct a paper review of the written comments before issuing a decision. The railroad company in that case had asked the Court to compel forma, on-the-record hearings under the APA, but the Court held that such a requirement was inappropriate unless explicitly specific in the statute, as it was in certain FDA statutes. The Court also crafted an important distinction between "legislative-type" agency actions, such as the railcar rates set by the Commission, and "judicial-type" agency actions, which target individuals.

275. Is an administrative law judge part of the federal judiciary?

a. Not exactly. Judges in the federal courts are part of the judicial branch and are independent of the other branches of government, whereas administrative law judges (ALJs) are actually employees of the agency for which they hear cases. The ALJs take special measures to function as independent decision makers even though they are employed by one of the parties in the cases they hear (the agency). Another difference is that federal court judges hear all sorts of federal cases, but ALJs specialize in cases under the jurisdiction of a single agency, like the Social Security Administration or the Federal Communications Commission. On the other hand, ALJs have many of the same powers and functions that regular federal judges have, like the authority to issue subpoenas and make evidentiary rulings in hearings; and reviewing courts are likely to give an ALJ's findings of fact similar deference to what they would give to the findings of a regular federal trial judge.

288. Does the APA require agencies to use rulemaking or adjudication for certain decisions?

a. Not explicitly. Agencies generally can choose between adjudication and rulemaking, except for due process concerns that compel adjudication when individual rights and liberties are involved. The APA does, however, impose procedures on how agencies do rulemaking or adjudication once they've settled on a policymaking mode.

304. One form of licensing is occupational licensing. Professionals such as doctors and lawyers are required to obtain licenses from the state in which they wish to practice their professions. What is the legal significance of a professional license, besides being a permit to work?

a. Occupational licenses are classified as property under the Roth test, as legal standards usually govern the grant, denial, renewal, and revocation of professional licenses.

305. How are occupational licenses legally protected?

a. Occupational licenses are protected by due process. Licensing boards will often make decisions regarding professional licensing issues in formal adjudication governed by due process rights.

250. For purposes of administrative adjudications, what is "official notice"?

a. Official notice is a technical term in administrative law, and is the administrative equivalent of judicial notice in courtroom civil procedure. This is where the administrator or the administrative law judge bases a finding of fact on some "material fact not appearing in the record," which most people would consider reliable or even indisputable. See APA 556(e). Of course, a party is entitled to an "opportunity to show the contrary" under 556(e). In Richardson v. Perales, the Supreme Court reversed the Circuit Court's rejection of the Social Security Administration taking "official notice" of its own medical-vocational guidelines.

261. Bobby Hill has applied for Social Security disability benefits. He wants to bring his neighbor, Dale Gribble, to his formal administrative hearing to testify about his inability to work. When the administrative law judge learns that Gribble is merely a neighbor with no special expertise or even special familiarity with Hill's physical condition, she declines to let Gribble testify at the hearing for fear of prolonging it unnecessarily and forcing a postponement of other claimants' hearings scheduled for that day. When Hill loses his hearing and challenges it in court, he contends that not allowing Gribble's testimony violated his hearing rights. Is he correct?

a. Probably not. Hill has an absolute right to have an attorney present at his administrative hearing, and to present testimony and evidence. On the other hand, bringing other witnesses merely to corroborate one's own self-interested testimony is not a due process right. Administrative law judges have broad discretion under APA556 about how to run the hearings, and Hill's right to bring nonlawyers to the hearing is subject to the agency's permission under APA555. See Richardson v. Perales.

255. Years after being discharged from the army, Private Ryan applies for a new program under the Department of Veterans Affairs that provides interest-free automobile loans for veterans wounded in action. Private Ryan's case is assigned to a case manager, and there is some uncertainty about whether Ryan was actually wounded during a period of being absent without leave (AWOL) from the battlefield, which would make him ineligible for the program under the regulations. At the formal administrative hearing, the case manager already working on Ryan's file conducts the hearing, and naturally affirms the determination he already made about Ryan's application. No one else is present at the hearing beside the case manager, Private Ryan, Ryan's attorney, and Ryan's commanding officer, who was subpoenaed to testify about his battle wounds. Is this hearing valid under the APA?

a. Probably not. It appears to violate APA 556(b), which requires that "there shall preside at the taking of evidence by the agency, one or more members of the body that compromises the agency, or one or more administrative law judges." The presiding officer at the hearing is supposed to be independent, and the original case manager who is working on a file does not qualify.

350. The U.S. Fish and Wildlife Service denied Yogi's FOIA request, stating that the information he requested is exempt from disclosure. Yogi appealed the decision to the agency and against his request was denied. Frustrated with this outcome, Yogi decides to seek judicial review. Who will bear the burden of proving to the court that the documents do or do not fall within one of FOIA exemptions, Yogi or the agency?

a. The agency has the burden of proof. FOIA place the burden of proof on the government agency according to APA 552(a)(4)(B). The agency must either prove that the requested materials are statutorily exempt from disclosure, or that the agency cannot find or identify the requested documents despite a reasonable search. See natl. Cable Television Assn. v. FCC.

273. The NLRB brings an enforcement action against Mega-Lo-art for its anti-union policies. After the formal administrative hearing, the administrative law judge issues a decision announcing a new rule for NLRB adjudications, that a facial showing of anti-union actions by any nationwide retail chain employing more than 10,000 workers is per se a violation of labor regulations. Historically, NLRB decisions had used a presumption in favor of large national employers instead. Mega-Lo Mart challenges this adverse decision in court, asserting that this abrupt change in the Board's position violates stare decisis. Is this correct?

a. Probably not. The doctrine of stare decisis is much weaker in the administrative adjudication context than in regular court, as there is no good system for tabulating the binding precedent of previous administrative law judge rulings. In addition, courts assume that agencies will change their policies from time to time to reflect the policies of new administrations elected to the White House. See NLRB v. Bell Aerospace Co; NLRB v. Wyman-Gordon. At the same time, remember that the agency will need to provide a reasoned explanation for an abrupt departure from its own precedent, or the courts could deem the decision arbitrary and capricious.

352. At a recent National Security Council (NSC) meeting documents were presented to the President regarding the possibility of sending American spied into countries that are allegedly harboring terrorists. Scout, a news reporter for The Mockingbird Times, sends a FOIA request to the Executive Officer of the President, requesting specific to the Executive Officer of the President, requesting specific information about the potentially targeted countries discussed at the meeting. Will the agency likely disclose this information to Scout.

a. Probably not. Under APA 552(b)(1), matters of national defense and foreign policy are exempt from disclosure under the FOIA. However, if the information Scout requested was not properly classified, by executive order, to be kept secret in the interest of national security or foreign policy, then a court might order disclosure of the information.

307. What is ratemaking?

a. Ratemaking is one form of agency regulation. The agency will set minimum or maximum rates that a company may charge for a product or service.

277. If ALJs are employees of one of the parties in the cases they hear—the agency itself—how can they be independent, neutral, and impartial in their decisions?

a. Several measures are in place to ensure that an ALJ will not be biased in favor of his or her employer, the agency involved in the adjudication. Unlike other agency employees, ALJs are not subject to performance-based rewards or punishments by the agency, so there is no incentive for the ALJ to favor the agency in decisions to secure a raise or continued employment. Agencies themselves do not control the hiring of the ALJs; instead the Office of Personnel Management selects the candidates. Veterans who make it to the final selection process automatically qualify over nonveterans for ALJ positions. These measures make it nearly impossible for the agency to screen ALJ candidates for pro-agency viewpoints. An unrelated federal agency, the Merit System Protection Board, handles disciplinary matters with ALJs when there are complaints. In fact, the ALJs have enough functional independence that as a group they often have an adversarial relationship with their agency; agencies avoid using ALJs unless required to do so by statute. See U.S.C 554(d).

317. Neo feels that his town needs "guns, lots and lots of guns," and that he is the one to provide them. He opens a store specializing in guns and ammunition. Agent Smith visits the store one day to conduct an inspection to check for the sale of unregistered firearms and compliance with other gun regulations. Neo tells him he cannot inspect anything without a search warrant, which elicits a maniacal, contemptuous laugh from Agent Smith. Is Neo correct?

a. Sorry, Agent Smith wins this round. The Supreme Court held in United States v. Biswell, that gun stores, like liquor retailers, are subject to warrantless searches by administrative agency officials.

347. FOIA Exemption 7(C) covers information related to law enforcement and investigation that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." How does this provision differ from the other "personal privacy" protections in other FOIA Exemptions, such as Exemption 4?

a. The "personal privacy" clause of the law enforcement exemption (Exemption 7) does not apply to corporations, but only to individual people. See FCG v. AT&T Inc., holding that corporations do not have "personal privacy" for the proposes of Exemption 7(C), but corporations do have some privacy protections under Exemption 4, which protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential."

274. Who presides over the hearing in formal agency adjudication?

a. The APA permits agencies to use either the agency head(s) or an administrative law judge to conduct formal adjudications. See 5 U.S.C 556(b). In practice, administrative law judges nearly always preside at agency adjudications. Note that these are actual agency adjudications, used on where statutes require them, as opposed to the fair hearings that agencies hold to comply with basic due process requirements. Usually fair hearings occur in the absence of formal agency adjudications, but an agency can use both.

308. Fergie, a licensed doctor, was investigated by the State Medical Board after the Board received complaints from several of her patients. The Board filed charges against Fergie and set a hearing that it intended to oversee regarding the charges. Fergie filed for an injunction to stop the Board from holding the hearing. She argued that it would be unfair for the investigatory body to also hold the hearing. How should the court rule?

a. The Board can hold the hearing. It is not a violation of due process for the same body to investigate, find probably cause, and preside over adjudication of the charges. It is not uncommon for licensing boards to combine a number of functions in one body. See Withrow v. Larkin.

281. What constitutional provisions constrain an agency's choice between making policy through adjudication rather than rulemaking?

a. The main constitutional consideration that might force an agency to use adjudication instead of rulemaking is the Due Process Clause. Normally, agencies have discretion about whether to achieve their delegated objectives through promulgation of rules, case-by-case adjudication, or informal policy decisions in a given instance. Courts will compel an agency to use adjudication, however, when there are due process concerns affecting individuals' rights.

266. Jason Bourne violates several regulations of the Department of the Interior, and is summoned to a formal hearing. The hearing notice provides the time, place, and nature of the hearing. Then it says, "SUBJECT OF THE HEARING: VIOLATION OF LAWS OF THE UNITED STATES AND REGULATIONS OF THE DEPARTMENT OF INTERIOR." Bourne knows exactly what the hearing is about—the damage he did to a historical national monument during a recent high-speed car chase when he was eluding capture from an organized crime syndicate. When Bourne later challenges the Department's adverse ruling from the hearing in court, the Department asserts that APA notice requirements were satisfied because Bourne knew that time, place, and nature of the hearing, and knew the matters of fact and law to which it would pertain. How will the court respond to this argument?

a. The Court will rule against the Department and order a new hearing for Bourne, because the hearing notice violates APA 558(c)(3), which requires notice of "matters of fact and law" asserted by the agency. The fact that Bourne knew what it was about is not relevant—an objective reading of the hearing notice would detect nothing except the most general allegation that some laws and regulations were violated.

303. After an investigation, the Federal Trade Commission issued a cease-and-desist order against Bert and Ernie's Duckies, Inc. with regard to a price discrimination issue. The company has sought to stop the FTC's order from taking effect because the company claims that its competitors engage in the same practices and the entire industry should be investigated. How would the court rule on the company's motion?

a. The Court would rule in the FTC's favor. The Supreme Court has held that an agency can prosecute one company without also prosecuting other companies. Under the Court's holding, it appears that the patent abuse of discretion standard requires only that the agency be able to articulate a rational basis for not proceeding against all competitors at the same time. See FTC v. Universal Rundle Corp.

306. Who decides if an application for a broadcast license will be granted?

a. The FCC determines whether broadcast licenses should be granted. 47 U.S.C 302-312.

337. Mary Jane is currently serving time in a federal penitentiary for drug-related charges. She submitted a FOIA request to the Drug Enforcement Agency (DEA) for specific documents compiled by the DEA in the course of its investigation of her "illicit drug activities." The DEA, without explanation, refuses to comply with Mary Jane's request. Mary brings a claim under the FOIA alleging the documents were "wrongfully withheld." Who carried the burden of proof in this litigation against the DEA?

a. The FOIA places the burden of proof on the government agency, according to APA. The agency must either prove that the requested materials are statutorily exempt from disclosure, or that the agency cannot find or identify the requested documents despite a reasonable search. See Natl. Cable Television Assn. v. FCC.

323. What is the main constitutional issue that arises in cases where agencies require the production of documents or information?

a. The Fifth Amendment right against self-incrimination is the most common constitutional issue raised when parties do not want to disclose records to an administrative agency. Although the Supreme Court has at times invalidated an agency's recordkeeping rules for violating this principle, it seems to be the exceptional case. When analyzing these questions on an exam, remember the following principles about the Fifth Amendment right against self-incrimination: i. It only applies to liability for a criminal prosecution, not to potential civil liability. ii. The privilege is not applicable to corporations, only to natural persons. Most regulatory requirements for information fall on businesses. iii. An individual cannot refuse to disclose information because it might incriminate others--the privileges personal. iv. Statutory grants of immunity make the Fifth Amendment privilege irrelevant in that case.

325. What is the Freedom of Information Act?

a. The Freedom of Information Act (FOIA) was passed for the purpose of opening agency records to public inspection. This Act also establish the procedure to ensure that agencies comply with the requirements of making the records public. See APA 552.

326. What is the relationship between the Freedom of Information Act and the APA?

a. The Freedom of Information Act was codified as part of the APA at 5 USC 552. NOTE: Unlike other sections of the course and the relevant APA sections, most administrative law professors will simply refer to this body of legislation as FOIA rather than referring to the section of the APA.

324. If the courts are deferential to agencies and their requirements for records and other information from the regulated industry, and they evaluate each request from each agency separately, what prevents the agencies in the aggregate from imposing impossible reporting requirements on American industries?

a. The Office of Information and Regulatory Affairs (OIRA), located within the Office of Management and Budget (OMB), serves as a watchdog over the total information requirements imposed by federal agencies on American industries. The Paperwork Reduction Act of 1980 (PRA) requires agencies to obtain approval from OIRA before imposing reporting or recordkeeping requirements on the private sector. OIRA plays a far more important role in limiting agency request for information and documents than the courts do.

312. What constitutes a "pervasively regulated business," such that a regulatory agency would not need a warrant to conduct inspections without consent?

a. The Supreme Court has created a three-part test to define "pervasively regulated businesses" for which the regulatory agency is exempt from the Fourth Amendment warrant requirement: i. The public interest in having the regulatory scheme itself must be very substantial; ii. Warrantless searches must be inherently necessary to advance the substantial public interest; iii. The agency must have its own rules controlling the frequency and scope of inspections that adequately substitute for the protections of the warrant requirement. See Donovan v. Dewey.

332. After receiving a FOIA request, how long does the agency have to make a determination whether or not it is going to comply with the request?

a. The agency has 20 working days to inform the requester of its decision to grant or deny access to the materials, and if access is granted, it must occur "promptly" thereafter. APA 552(a)(6)(A)(i); APA 552 (a)(6)(C).

311. Is a search warrant required for an agency inspection?

a. Yes, in most cases. In the administrative context, however, warrants can be issued without probable cause, unlike criminal search warrants. See Marshall v. Barlow's Inc.; Camara v. Municipal Court. Most businesses consent to inspections from administrative agencies without demanding a warrant.

355. Pursuant to an executive order, Junker Motor Company, an automobile manufacturer that receives government contracts, is required to comply with equal opportunity regulations. To comply with the order, Junker must submit reports and other information about its affirmative action programs to the Department of Labor. After receiving a third-party FOIA request, the Department of Labor notified Junker about the request it received for disclosure of Junker's affirmative action program information. Despite Junker's objection to the release of the information, the Department of Labor explained to Junker that the information is subject to disclosure under FOIA and that the information will be released within the next week. If Junker, a private party, filed suit to enjoin the agency form releasing the information based on a FOIA exemption, will a court likely rule in Junker's favor?

a. The court will most likely not rule in favor of Junker. Junker's claim is similar to that of Chrysler in Chrysler v. brown. In that case Chrysler sought to enjoin the compliance agency responsible for monitoring its employment practices from disclosing its information. Chrysler contended that disclosure of its information was barred by the FOIA. The Supreme Court ultimately held that the FOIA is exclusively a disclosure state and that it provides no private right of action to enjoin agency disclosure. See Chrysler Corp. v. Brown. Thus, if the court reviewing Junker's case applies Chrysler, it is likely that Junker's claim will fail.

263. The NLRB wants to rein in its "left-leaning administrative law judges" who rule disproportionately in favor of unions in disputes about union certifications, forcing smaller, distinct groups of employees to join a single collective bargaining unit. The Board promulgates, through notice-and-comment rulemaking, an official "chart" with mandatory predetermined categorizations for collective bargaining units, accounting for factors like the number of employees, the similarity in job tasks, the variations in pay scale, and the national labor market for those jobs. The Federated Union of Law Professors has a formal hearing before an administrative law judge where it disputes the inclusion of "clinic professors" in its collective bargaining unit. Basing her decision on the chart, she finds that the professors must bargain with their schools together as a single union. When the union challenges this decision in court, what will be the result?

a. The court will probably uphold the administrative law judge's decision because agencies can use APA rulemaking to promulgate "grids" or charts that control the outcome of many agency adjudications, as in the case described here. See Heckler v. Campbell, upholding the SSA's "grid" of medical-vocational guidelines for determining eligibility for federal disability benefits. According to the Supreme Court, this is especially true for agencies that mostly conduct adjudications, such as the SSA and the NLRB.

262. The FDA regulates labeling on foods, and brings enforcement actions against manufacturers who mislead consumer by using an unreasonable small portion as the "serving size" on the label. Fat Pockets makes microwaveable meals with astonishing levels of fat and sodium in the filling. The label, however, gives the nutritional information based on a serving side of "1/15 of a Fat Pocket," approximately one bite. The FDA promulgated a table of preset determinations about serving sizes for labeling different categories of food, delineating how many grams constitute a serving size. At the hearing, Fat Pockets submits evidence that most people eat on or two bites of their Fat Pocket and throw the rest away. The administrative law judge, however, bases his entire determination on the FDA's table, and rules that the company mislabeled its products. Will a court uphold the judge's determination?

a. The court will probably uphold the administrative law judge's decision because agencies can use APA rulemaking to promulgate tables or grids that control the outcome of many agency adjudications, despite the private party's extraneous evidence. See Heckler v. Campbell, upholding the Social Security Administration's "grid" of medical-vocational guidelines for determining eligibility for federal disability benefits.

260. Two leading Internet search engine companies want to merge to form a new conglomerate called Yahoogle. The FTC challenges the merger on antitrust grounds, and holds a formal administrative hearing. The presiding officer at the hearing subsequently issues a recommended decision based mostly on outside economists' written analysis in the record concerning market share, product tying arrangements, and monopolistic pricing. The economists' reports receive more weight that the testimony of Yahoogle's employees and customers who crowded into the hearing room, even though none of the economists who authored the reports was present at the hearing. When Yahoogle challenges the FTC's decision, it contends that the economists' reports were hearsay and should have been inadmissible or given little weight in the agency adjudication. Howe will the court respond?

a. The economists' written reports are admissible in an agency adjudication, and the agency is entitled to give such scientific and mathematical evidence more weight than live testimony at the hearing. See Richardson v. Perales, where the Supreme Court allowed written medical reports to be admitted and given controlling weight in Social Security disability hearings, despite the fact that they might have been excluded as "hearsay" evidence in a regular court. In general, hearsay rules and other evidentiary prohibitions are relaxed in administrative adjudications.

253. APA 556(c) authorizes administrative law judges to do several things at a formal hearing. What important judicial actions does the APA not authorize the administrative law judge to take?

a. The following are not among the actions the APA authorizes the administrative law judge to take: i. Overturn an agency regulation that it finds to be arbitrary and capricious ii. Order the imprisonment of a recalcitrant violator of agency regulations

291. When may an agency use informal policymaking methods rather than promulgating rules or adjudicating individual cases?

a. The following categories of agency decisions are exempt from notice-and-comment rulemaking requirements, and therefore can be handled by informal policy making; i. Military functions or foreign affairs ii. Management of agency personnel iii. Matters related to public property, loans, grants, benefits, or contracts APA 553(a). In addition 553(b) exempts interpretive rules and general statements of policy. This clause also allows agencies to omit the usual notice-and-comment protocols in special circumstances where the procedures would be "impracticable (i.e., financially infeasible), unnecessary, or contrary to the public interest."

340. Section 552(b) lists several types of documents exempt from FOIA's disclosure requirement. What are these exemptions?

a. The nine FOIA exemptions in APA 552(b)(1)-(9) are : 1) National defense and foreign policy matters; 2) Internal agency personnel rules and practices; 3) Documents specifically exempted by statute; 4) Trade or commercial secrets and privileged financial information; 5) Interagency or intra-agency memoranda; 6) Medical and personnel files whose disclosure would be an unwarranted privacy invasion; 7) Law enforcement records (if disclosure would interfere with ongoing investigations); 8) Information submitted pursuant to banking regulations; and 9) Geological and geophysical information and data concerning wells. NOTE: It is somewhat important to remember them in numerical order, because court opinions will discuss in an applicable exemption by number for convenience (e.g., Exemption 5). Mnemonic: No Inside Sources Tell Me Many Lies Besides George (National defense; Internal personnel rule; Trade secrets; Memoranda; Medical records; Law enforcement; Banking info; Geological surveys).

251. What is the "residuum rule" in administrative law?

a. The residuum rule was a traditional requirement that an administrative record of decision must contain at least a "residuum" of nonhearsay support for the agency's decision, or else the court would reverse the decision under the substantial evidence test. In Richardson v. Perales, the Supreme Court apparently abolished the residuum rule in the federal system, but it still applies in some states. See Carroll v. Knickerbocker Co.

300. What standard do courts use to determine if they should stop an agency from enforcing an order until the agency orders others in the same industry to stop the same practice?

a. The standard used in this type of case is the "patent abuse of discretion" rule. F.T.C v. Universal-Rundle Corp.

298. A new statute authorizes the USDA to regulate the quality and type of peaches sold in retail grocery stores nationwide. The statute reads, "The agency decision shall be determined on the record after opportunity for a formal agency hearing." The agency promulgates its regulations through lengthy notice-and-comment procedures under APA 553. Princess Peach requested an opportunity for oral argument during the comment period, but the agency ignored her request, and has now promulgated its final rule. What additional procedures should the agency have followed?

a. The statutory verbiage here ("on the record after opportunity for hearing") triggers the "formal rulemaking" requirement of APA 556, which include full trial-like hearings before and administrative law judge and decision based on a formal record. Formal rulemaking has the same procedure as formal agency adjudications. This is very rare in federal statutes, but its most well-known occurrences are in the contact of regulating food, drugs, and cosmetics.

327. ANALYZING FOIA PROBLEMS

a. The two most common issues under the FOIA are the following: i. Whether the material saw as part of a FOIA request constitutes an agency record within the meaning of the statute (i.e., whether it is covered by the statute); and ii. Whether one of FOIA's exceptions applies to this case, allowing the agency to refuse to disclose the information.

289. Which is the preferred method for agencies, rulemaking or adjudication?

a. There are arguments both ways. Rulemaking is usually less expensive and more efficient than adjudicating every case one by one; but there are cases where the agency's purpose lends itself better to adjudication, as in deciding eligibility for welfare benefits. In general, courts favor rulemaking over adjudication by agencies. They normally will not compel an agency to use adjudication without a clear statutory mandate.

268. Peggy Hill applies for Social Security disability benefits after she falls from an airplane without a working parachute and ends up in a whole-body cast in the hospital for more than 12 months. At her formal administrative hearing, she wants to subpoena some of the independent medical examiners who submitted unfavorable medical reports to the agency for her file. The administrative law judge refuses to let her subpoena more witnesses, which would inconvenience the doctors and unnecessarily prolong the hearing, but agrees to take her objection to their medical findings "under advisement." Peggy receives an unfavorable determination and challenges it in court, asserting the administrative law judge unlawfully refused to subpoena witnesses she requested. Is she correct?

a. There is a split between the federal circuits on this question, and the SSA regulations do not address the issue. The Fifth and Eight Circuits grant a right to a subpoena whenever the claimant seeks one. Lidy v. Sullivan; Coffin v. Sullivan. The Second, Sixth, and Seventh Circuits leave the granting of subpoenas to the discretion of the administrative law judge. Yancey v. Apfel; Flatford v. Chater, and Butera v. Apfel. Notice that the more recent cases trend against an absolute right for parties to obtain subpoenas.

248. What are the elements of a typical formal hearing with an administrative agency?

a. There is no such thing as a "typical" agency hearing. Hearing styles vary considerably from agency to agency, depending on the agency's governing statute and its own internal regulations. For example, attorneys should expect to find very different types of hearings if they are trying to avoid the termination of a client's Social Security benefits, as opposed to trying to avoid an FTC fine for a corporate client's antitrust violation.

264. Jack Bauer files a workers' compensation claim for injuries he sustained when a 300-pound block of ice fell on him while he was investigation a terrorist strike. He remembers nothing, but two witnesses told him what happened after he regained consciousness. He was left unbruised by the incident, but he insists that he sustained painful internal injuries. The witnesses have since met with unfortunate accidents of their own and died. There are no conclusive medical reports in the record. The hearing officer finds Bauer eminently credible and grants compensation benefits to him based on his testimony at the hearing. Bauer later learns that his award was reversed by a state court under "the residuum rule." How does the residuum rule apply to this case?

a. These facts are similar to those in Carroll v. Knickerbocker Co., which overturned a workers' compensation award because it was based solely on hearsay evidence (the injured worker's testimony about an out-of-court event, the accident). The residuum rule seems to have been abolished in the federal system by Richardson v. Perales, but is still followed in some states.

256. Looking out from his chamber window after a disability hearing, an administrative law judge sees the disability claimant run across the street and up the sidewalk, where he gets on a bicycle and rides off into traffic. The claimant had come to the hearing in a wheelchair and claimed to be unable to walk or stand for any length of time that would permit him to work. Several medical examination reports in the file affirmed that the claimant had permanent injuries and could not walk, stand, or function in a workplace. There is no evidence in the record to contradict the alleged disability, except for the display of physical capacity the judge just witnessed. Can the administrative law judge deny the disability claim based on this observation under the APA?

a. This is a tough one. According to APA 556(e), the "transcript of testimony and exhibits, together with papers and requests filed in the proceeding, constitutes the entire record for decision." This would suggest that the administrative law judge cannot issue a decision in which he disregards the medical evidence in the record and bases his denial of disability benefits on his own observation of the claimant outside the building after the hearing. A reviewing court would probably find that such a decision violated the "substantial evidence" test as well as 556(e). The judge could possibly convene a second hearing and question the claimant on the record about what he saw, or could possible recuse himself from the case, have another administrative law judge reconvene the hearing, and testify against the claimant—a very awkward and unlikely solution.

278. How many administrative law judges are there?

a. Today there are more than 1,400 federal ALJs, compared to about 680 federal district court judges. Remember that 75 percent of the ALJs work for the Social Security Administration the Department of Health and Human Services is a distant second, with about 5 percent of the federal ALJs. Most other agencies have fewer than ten ALJs. See General Accounting Office Report, Results-Oriented Cultures: Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management, From GAO-10-14 (January 2010).

309. What are the main legal issues that courts consider when reviewing agency decisions to conduct inspections or site visits?

a. Two main legal issues arise in context of agency inspections and site visits: i. Whether the agency had clear statutory authority to conduct the inspections ii. Constitutional limitations on government searches, especially the Fourth Amendment Most agencies indeed have statutory authority to make inspections as necessary for carrying out their regulatory programs; the Fourth Amendment issues are where the cases have more uncertainty.

330. What information does the FOIA require agencies to publish in the Federal Register?

a. Under the FOIA, agencies are required to publish in the Federal Register descriptions of their structure and operating procedures, their substantive rules and interpretations, and the methods by which the public can obtain further information from the agencies, according to APA 552(a)(1).

280. Useless S. Grant is the head of the Department of Health and Human Services. An ALJ, Judge Picket, decides a case that is before the agency. Grant is furious and reverses the ALJ decision; then Judge Pickett publicly announces that this decision was final, and that Grant lacks the authority to reverse it. Who is correct?

a. Useless grant is mostly correct in this case. Administrative law judges issue only "recommended decisions" or "initial decisions," which the agency directors normally endorse. ALJs generally do not have the authority, according to the Administrative Procedure Act, to issue "final decisions," contrary to what Judge Pickett contends. At the same time, the claimant in this case will probably seek judicial review and reviewing courts will scrutinize an agency reversal of the ALJ's findings to see if the reversal is supported by evidence and articulated policy rationales. Courts are likely to reverse Grant's decision and reinstate the ALJ's decision if Grant's decision appears to be arbitrary or without regard to the facts of the case.

296. What phrase in a statute is most likely to prompt a court to find that an agency must follow formal rulemaking procedures under the APA?

a. Watch for statutory verbiage mandating that an agency's decision "be determined on the record after opportunity for agency hearing." This is very rare; it is much more common for statutes to simply say "after hearing," which the Supreme Court has held means nothing more than informal notice-and-comment rulemaking under the APA. See U.S. v. Florida East Coast Railway.

148. ANALYZING AGENCY ADJUDICATION PROBLEMS

a. When analyzing the constitutionality of locating adjudication within an agency, look at the different treatment accorded public rights and private rights. Assess these issues in light of the factors in Schor: 1. Especially that the agency adjudication pertains to a specialized area of law related to the agency's regulatory regime, 2. That orders by the administrative law judge will be enforceable only in a regular court, 3. That affective judicial review is available, and 4. That the essence of the judicial power is not delegated to the agency.

254. Toxisludge, a chemical manufacturer, requests an EPA compensation hearing with a competitor, Xterminator, under FIFRA because the other company used the scientific evidence that Toxisludge filed with the EPA as part of its required reporting on test results. Xterminator intends to dispute the allegations and claims it conducted the scientific research independently. What notice must Xterminator provide to the EPA and the moving party?

a. Xterminator must provide "prompt notice of issues controverted in law or fact" according to APA 554(b)(3). This would include the claim that the company conducted its own independent research and denies the charges made by Toxisludge, the original moving party.

335. If one person submits a FOIA request, which the agency denies, and the agency prevails in litigation over the request, can subsequent individuals submit requests for the same information?

a. Yes as long as subsequent parties were not part of the original litigation. In Taylor v. Sturgell, the Supreme Court rejected the concept of "virtual representation" for purposes of FOIA suits, which lower courts had used to bar subsequent parties from requesting (and litigating over) the same information, especially when using different legal arguments.

247. Can agencies use rulemaking to streamline some of the determinations that would be made in statutorily guaranteed hearings?

a. Yes, agencies can use APA rulemaking to promulgate tables or grids that control the outcome of many agency adjudications, despite the private party's extraneous evidence. See heckler v. Campbell, upholding the SSA's "grid" of medical-vocational guidelines for determining eligibility for federal disability benefits. Note that such rulemaking must allow some opportunity for claimants to present evidence at the hearing of a compelling, individualized reasons for deviating from the published guidelines.

257. The FTC brings an enforcement action against a corporation for an alleged unfair trade practice. When the company receives its notice of its administrative hearing, its attorney immediately contacts the relevant agency personnel offering to settle the case and pay the minimum fine instead of holding a hearing, which is costly and can generate bad publicity. The agency rejects this overture, informing the company that it does not negotiate with violators and plans to make an example of the company. The company attends it hearing and receives an adverse ruling by default, including the maximum level of fines for this offense. Can the company successfully challenge the agency's no-settlement policy in court?

a. Yes. APA 556(c) require the agency to give interested parties an opportunity for settlement. The court is likely to reverse the agency's ruling and remand the case to the agency with instructions to schedule a new hearing and engage in settlement negotiations with the company before the hearing occurs.

315. Jude the Obscure lives in an inner-city tenement building and receives welfare benefits for himself and his son, whom he is raising alone. His case worker at the welfare agency informs him that she needs to make a home inspection to check on the child's living conditions. Jude asks if she plans to get a search warrant, and she says she does not need one—she will simply cancel his welfare benefits if he refuses a home inspection, pursuant to agency rules. Can the case worker give Jude such an ultimatum?

a. Yes. Even though welfare agencies would need a search warrant to make home inspections without consent, they can make regular, consensual home inspections a condition of receiving welfare benefits. See Wayman v. James.

336. Penn E. Pincher submitted a request for documents to the Federal Trade Commission (FTC). Because Pincher was entitled to the documents under the FOIA, the FTC complied with his request. Along with the documents, however, the FTC also sent a bill to Pincher for the time spent searching for and duplicating the documents. Pincher, extremely unhappy about possibly having to part with his money, seeks judicial review of the FTC copy charges. Can the agency charge him these costs?

a. Yes. Pincher will probably lose this case. Agencies are allowed to charge for document review, in addition to search and duplication costs if the records are requested for commercial use. For noncommercial requests by the news media or educational and scientific organization, the agencies can charge only duplication fees. On all other noncommercial requests, the agency can charge duplication and search fees (but not fees for document review). Agencies can choose to waive fees.

265. Kent Brockman is the subject of an enforcement proceeding by the FCC for regulatory violations in his sports broadcast. He requests a hearing an receives a notice that it has been scheduled "at the nearest FCC office on the next day of business." Brockman manages to find the FCC office downtown and is told to wait for his hearing, which occurs later that afternoon. The hearing officer rules against Brockman and imposes a fine. When Brockman challenges the decision in court, will the court care that it took him all day to find the FCC office and wait around for the hearing?

a. Yes. The agency's notice violates APA 554(b)(1), which requires that agencies provide adequate notice about the "time, place, and nature of the hearing." The court will probably reverse the decision but remand the case to the agency to redo the hearing, this time providing adequate notice to satisfy the legal requirements of the APA.

287. Springfield's ordinances provide that if 40 percent of the voters in a precinct petition of the Board of Elections for a vote to prohibit the sale of liquor at a specific street address, the Board shall hold a precinct-wide referendum on the question and revoke the liquor license of a tavern that loses such a vote, as Mel's Tavern recently did. State law explicitly says that liquor licenses, once granted, can be revoked only "for cause". Mel challenges the referendum in court, arguing that it unconstitutionally deprived him of a property interest. Is Mel correct?

a. Yes. The facts here are based on Club Misty, Inc. v. Laski, where the court held that the Board (and therefore the City of Chicago) had violated the tavern owner's due process rights by submitting an adjudicative decision, rather than a legislative decision, to a public referendum. The tavern had a property interest in its license, like most licenses, and deserved a hearing where it could understand the complaints against it, and present counterarguments and evidence, before losing its license to carry on its business.

328. Can anyone request documents under the FOIA?

a. Yes. The language of the FOIA appears to place no limitations on who can request documents.

310. Do Fourth Amendment restrictions on government searches apply to administrative agency inspections?

a. Yes. The warrant requirement and protections against "unreasonable searches" contained in the Fourth Amendment apply to administrative agency inspections. Courts are more lenient with the agencies, however, than they are in the criminal context; for example, the "probably cause" requirement for warrants is relaxed in the administrative law arena. In addition, industries or businesses categorized by courts as "pervasively regulated" may be subject to warrantless searches. Also remember that most businesses consent to inspections and searches without demanding a warrant.

339. Attorney Cheatham and his associate Milkem want to bring a class action lawsuit against the used car salesman in their area, so they file a FOIA request with the state Department of Motor Vehicles to get the names of recent car purchasers. Cheatham and Milkem then sent solicitation letters to these individuals, offering to represent them and asking them to join the class action. Some of the recipients of the letters resent the solicitation, and sue the lawyers under the federal Driver's Privacy Protection Act. Can the lawyers, who obtained the names legally through a FOIA request, face civil or criminal liability under another statute for obtaining and using that information?

a. Yes. These are nearly the exact facts of Maracich v. Spears, which held that parties who obtain information via a FOIA request could still be subject to other legal prohibitions against obtaining or using such information. In Maracich, plaintiff attorneys use a FOIA request to get client names from the state DMV for a class action against car dealerships. Prospective clients who received solicitation letters sued the lawyers for violating the federal Driver's Privacy Protection Act (DPPA). The Supreme Court held that the lawyers could be liable under the DPPA for obtaining the info via FOIA request and using it.

285. Jezebel is the city tax assessor, and she imposes a significant tax increase on Naboth's vineyard after the government develops the adjacent parcel of land. Naboth inherited the property and believes its value has not changed in decades. He demands an administrative hearing to challenge the sudden tax increase. Would a court agree with Naboth that Jezebel owned him a hearing?

a. Yes. These facts are similar to those in Londoner v. Denver, when the landowner was subjected to an individualized tax levy to cover the city's cost of paving the street in front of his house, and the Court held that a hearing was necessary because the individualized nature of the decision made it more adjudicatory.

272. Two parties apply for radio broadcasting licenses to operate on the same frequency in neighboring cities. The FCC grants the first application and schedules it for an administrative hearing, as required by statute for all applications. The second station sues, contending that the hearing was a sham because the rights to broadcast on that frequency has already been granted to another station. Will the court agree that the FCC functionally deprived the second station of its statutory hearing rights?

a. Yes. These facts are very similar to Ashbacker Radio Corp. v. FCC, where the Court held that as a practical matter, the grant of the competing application constituted a denial of Ashbacker's application, making the hearing pointless and violating the statute.

258. Bart Simpson has a formal hearing before an administrative agency and he wants to bring his sister Lisa to advise him to testify on his behalf. May Bart bring a family member to a formal administrative hearing?

a. Yes. Under the APA, other parties not involved directly in the adjudication may appear "so far as the orderly conduct of agency business permits." Even so, Lisa is not necessarily entitled to bring her own attorney to the hearing. Bart has an absolute right to have an attorney present. If the administrative law judge finds Lisa's presence in the hearing disruptive or problematic, however, the judge has the discretion to exclude her from the hearing room. Remember that administrative hearing rooms are often very small and there is often no room for a claimant to bring a lot of people along to the hearing.

174. Goneril and Regan own competing local television stations, and are competing with the FCC for a broadcast license with a desirable low-number channel designation. Goneril calls FCC Chairman Lear every day, and after the close of the comment period, sends him a book about "The Quest for Quality in Broadcasting." Goneril also sends Lear a gift turkey for Thanksgiving, and treats him to lunch a few times at an expensive restaurant. Will the court consider these acts of kindness to be ex parte communications?

aa. Yes, unsurprisingly. These facts are based on those in Sangamon Valley Television Corp. v. U.S., one of the exceptional cases where the court found impermissible ex parte contacts during an agency's decision. Subsequent decisions have opined that the problem in that case was not the contacts themselves (which approach the level of bribery), but rather the fact that the agency decision involved a competition between two parties for a license, where one was prejudiced by the actions of the rival. See Acton for Children's Television v. FCC.

150. What is "informal rulemaking" under the APA?

c. Informal rulemaking is the primary method for agencies to promulgate rules, and follows the notice-and-comment procedures mandated in APA 553. "Informal" is a somewhat misleading term, because the process actually has a lot of formalities—publication of the proposed rule in the Federal Register, submission of comments (often with supporting scientific or empirical studies) from the regulated industry or interested activist groups, and publication and codification of the final rule. Even though this process is highly bureaucratic, we call it informal because it does not require the full trial-like hearing procedures of formal rulemaking under APA 556-557.

176. What is the "concise general statement" required by APA 553 for informal rulemaking?

cc. APA 553 requires that the agency include in its published rule a "concise general statement of its basis and purpose." In actuality, most agencies err on the side of being exhaustively thorough in delineating the rationale and empirical support for a new rule, addressing the alternatives that it rejected, and responding to the most serious arguments against the new rule. Agencies must respond to substantial issues raised in the comments and must state the agency's conclusions on the primary factual and policy issues involved.

153. What additional components of notice do courts require from agencies, beyond those specified in the APA?

f. Courts have required that the final rule is logical outgrowth of the proposed rule, not departing materially or substantially from the original proposed rule. In other words, if an agency published a final rule that bears little resemblance to the original proposed rule, then the proposed rule failed to provide adequate notice of what the final rule would include. Sometimes the comments convince the agency to make significant changes to the rule, in which case the agency might need to publish a new proposed rule before adopting it as a final rule. In some cases, courts hold that the final rule is too different from the original proposal, and compel the agency to redo the notice-and-comment process. In addition, courts require agencies to provide notice of the data or scientific studies on which they are basing their rule.

179. When administrative agencies set out to promulgate safety regulations, what are the major problems they encounter?

ff. First, most agencies must conduct rigorous cost-benefit analysis to determine the appropriate levels of restrictions, and both the costs and benefits can be difficult to quantify with precision. Second, many health hazards involve scientific uncertainty about guaranteed "safe" levels, guaranteed "danger" levels, and unforeseeable consequences of a rule, making it difficult for agencies to justify or defend particular rules.

155. The FDA concludes that sodium benzoate, a preservative in carbonated soft drinks, poses health risks to consumer, and proposes a rule (uses informal rulemaking) calling for a ban on sodium benzoate in soft drinks. Numerous comments submitted by soft drink manufacturers convince the FDA that the alternatives would be even worse—without preservatives, the soft drinks are more likely to spoil and spread pathogenic diseases, and other available preservatives (like sodium chloride) pose even greater public health risks. When FDA publishes its final rule, it completely ignores these comments, and adopts its original proposal. Will a court uphold the new rule?

h. Probably not. For the opportunity for comment to be meaningful, the agency must actually read and consider the serious comments received, like those described here (the agency can ignore spurious or ridiculous comments). The only way for the agency to demonstrate that the comments were duly considered is to provide some kind of published response or explanation for why they were not persuasive. The agency does not have to acquiesce to a commenter, but it has to acknowledge the comment and explain its reasons for disagreeing with the position taken in the comment. In this case, the court would probably make the agency redo the notice-and-command period and publish a more responsive final rule explanation.

181. How do risk and uncertainty affect the promulgation of safety regulations?

hh. First, there is no correlation between the seriousness of the risk and how easy it is to manage through regulation—some very serious risks, like natural disasters, are difficult to control through legal rules. Second, some risk are more suitable for management through insurance programs than through prohibitions, but the best approach is not always clear in a specific case. Thirds, many hazards involve scientific uncertainty—current technology is not able to quantify certain dangers, and some potential dangers are simply unknowable.

156. The EPA proposes a rule to limit carbon dioxide emissions from automobiles by requiring cars to have significantly more efficient engines. During the comment period, Merlin submits a comment, including serious scientific data, showing that a special chemical additive to gasoline would eliminate carbon dioxide gas from car exhaust fumes by making the carbon and oxygen atoms recombine into other molecules that are not "greenhouse gases." Similar convincing proposals come in from the Wizard of Oz and Professor Frink. The EPA agrees and publishes a final rule dispensing with engine efficiency requirements and calling for the new additive. The petroleum industry immediately challenges the rule in court, saying the agency violated the APA's notice-and-comment requirements. Will the EPA prevail?

i. In this case, probably not. If the final rule deviates too much from the original proposed rule, as in this case, courts will remand the rule to the agency to redo the notice-and-comment period for the final rule. The idea is that the public has no opportunity to comment (and no meaningful notice) of the rule if the final rule is a surprise. Also note that sometimes agencies simply give up when the court orders a new notice-and-comment period, and never adopt any rule.

283. What factors determine whether an agency action is more adjudicatory or more legislative?

i. Numbers affected. Broad applicability is more legislative, individual applicability is more adjudicative. ii. Prospectivity. Legislative judgments are forward-looking, and adjudicative judgements are retrospective, determining what happened in the past. iii. Type of facts. Adjudicative facts are specific—who/what/when/where/how/why/intent—like a jury would decide. Legislative facts are general policy determinations—like overall societal effects or economic impact. Adjudicative facts are more likely to hinge on private information or information asymmetries, so getting testimony from individuals is more important.

182. What is "Knightian Uncertainty"?

ii. "Knightian Uncertainty" refers to an abstract distinction, first drawn by the Nobel Laureat economist Frank Knight, between known statistical odds (risk) and unknown or unknowable odds (uncertainty). See Frank Knight, Risk, Uncertainty, and Profit (1927). Knight applied the distinction mostly to entrepreneurial business to argue that risk premiums are net revenue but not "profit" in the same sense of windfall profits. Modern academia applies the distinction to financial markets, astronomy, natural disasters, military strategy, and health/environmental hazards. The last category is most important for administrative law.

157. Larry the Cucumber leads a consumer advocacy group that wants Americans to buy foods that are more nutritious, like vegetables and whole grains. The Department of Agriculture (USDA) administers a welfare program that provides food stamps, which recipients can use only for certain essential foods. The USDA proposes a new rule that acceptable "grains" under the program include cereal, bread, and pasta, but not cookies or cakes. Larry and his group submit comments insisting that the USDA should exclude ramen noodles from the list of acceptable products under the program, given their lack of nutritional content. The USDA agrees and includes ramen noodles as an excluded item in its final rule. Does this violate APA informal rulemaking procedures?

j. Yes, this appears to violate the notice-and-comment procedures of APA 553, because the final rule is too different from the original rule—excluding ramen noodles is not a logical outgrowth of the original proposed rule excluding cookies and cakes. See Chocolate Manufacturers Assn. v. Block.

183. How does Knightian Uncertainty relate to administrative law?

jj. Agencies charged with promulgating safety regulations often must do so without scientific certainty about what levels of exposure to a toxin is actually dangerous to humans. See Industrial Union Dept. v. American Petroleum Institute. For purposes of your course, think of Knightian Uncertainty as scenarios in which the probabilities of various potential outcomes are unknowable, or perhaps the range of possible outcomes are unknowable.

158. What is "formal rulemaking" under the Administrative Procedure Act?

k. Formal rulemaking, also called "on-the-record" rulemaking, is the promulgation of new regulations using elaborate trial-like proceedings, similar to formal adjudication. Agencies rarely use formal rulemaking—in fact, they are unlikely to use it unless required to do so by their enabling statute, which is uncommon. The APA procedural requirements for formal rulemaking are in 556-557; that is, the same requirements imposed on formal adjudication.

184. What was the underlying problem with risk and uncertainty in Industrial Union Dept. v. American Petroleum Institute?

kk. Whether "safety" and "risk" considerations means that an agency must prove what level is safe, or prove what level is dangerous. The regulation pertained to occupational exposure to airborne benzene, which can cause leukemia; OSHA lowered the permissible amount in the air in refineries from 10 ppm to 1 ppm (stricter), merely because it could not guarantee that 10 ppm was safe. Industrial Union Dept. v. American Petroleum Institute.

159. What are the differences between formal rulemaking and informal rulemaking?

l. Formal rulemaking is procedurally identical to formal adjudication, and therefore bears little resemblance to informal rulemaking. With formal rulemaking, agency heads or administrative law judges must preside at the trial-like hearings (whereas informal rulemaking is usually the responsibility of a department within the agency). Parties who submit evidence at the formal rulemaking hearing have a right to offer oral testimony and to cross-examine witnesses on the opposing side of the issue. The record of the decision includes transcripts of the hearings and documents received into evidence. These constitute the entire record. The decision must also include a detailed statement of rationale, just like adjudication. See APA 557. The rules about ex parte contacts are much stricter in formal rulemaking than in informal rulemaking. See APA 557 (d).

185. What was OSHA's main failure in Industrial Union Dept. v. American Petroleum Institute, according to the plurality opinion?

ll. The agency did not provide adequate scientific basis for changing a safety regulation. The new rule imposed extremely burdensome compliance costs on the industry in terms of modifying its facilities and equipment, with little provable benefit in exchange. Industrial Union Dept. v American Petroleum Institute. Many administrative law casebooks include this decision because it illustrates the difficulties agencies face when promulgating safety regulations despite scientific uncertainty about what levels of exposure are truly safe or truly dangerous.

160. If an agency uses formal rulemaking for promulgating a new regulation, is it exempt from the notice-and-comment procedures for informal rulemaking under APA 553?

m. No. The requirements of APA 553 also apply to formal rulemaking. The agency must still publish the notice of proposed rulemaking in the Federal Register, just as with informal rulemaking. The difference is that instead of parties submitting only written comments (usually done by regular mail or through the agency's Web site for informal rulemaking), in formal rulemaking the evidence will be submitted at the announced hearing.

186. Chicken Little serves as Administrator of the EPA, and needs to promulgate a regulation about permissible levels of toxic dust falling from the sky around municipal waste incinerators. Scientists know that the toxins in question are fatal to humans in high doses, but no one can ascertain what level of exposure humans can tolerate with zero adverse health effects. All documented cases of illness related to incinerator dust involve workers inhaling dense clouds of toxins within the facility, rather than lighter exposure experienced by those in the nearby community. To be on the safe side, can Chicken Little promulgate a rule forbidding any toxic dust from falling from the sky around the incinerators?

mm. It depends partly on the relevant enabling statute; that is, whether the statute allows consideration of the costs of a proposed regulation. In Industrial Union Dept., AFL-CIO v. American Petroleum Institute, the Supreme Court invalidated a safety regulation that the agency made stricter merely because it could not ascertain what level would be safe; the Court required the agency to show some scientific reasons for setting the permissible levels at a particular amount. Scientific uncertainty often prevents agencies from making such precise determinations, and they face a dilemma about whether to set levels to try to ensure safety or try to ensure against certain harm.

161. George Washington Carver becomes Administrator of the Food and Drug Administration (FDA), and he wants to settle the long-standing dispute about whether peanut butter should contain 87 percent peanuts or 90 percent peanuts. The FDA's enabling statute says, "The agency decision shall be determined on the record after opportunity for formal agency hearing." Can the agency promulgate its regulation through notice-and-comment procedures under APA 553, when challenged in court by Mr. Skippy?

n. No. This statutory verbiage triggers the "formal rulemaking" requirements of APA 556, which includes fulle trial-like hearings before an administrative law judge and a decision based on formal record, as with formal adjudications. These facts are taken from the most notorious case of formal agency rulemaking, often cited as a reason why agencies do not use this approach, where the FDA took nine years of formal hearings, recorded in thousands of pages of transcripts, to answer this question about whether peanut butter should have 87 percent or 90 percent peanuts. Corn Products Co. v. FDA.

187. What is cost-benefit analysis, for purposes of administrative law?

nn. In most cases, federal agencies have to compare the purported benefits of a contemplated regulation, usually measured in statistical lives saved, against the burden that the new rule would impose on the regulated industry in terms of compliance costs. See Entergy Corp. v. Riverkeeper, Inc.

162. A new statute requires the Department of Labor (DOL) to determine the "prevailing industry wage" for various jobs, which the federal government will then use as a benchmark when it hires contractors for a special government project called the "Dharma Program." The statute provides that the DOL issue wage determinations "on the record after opportunity for a hearing." The DOL uses notice-and-comment informal rulemaking and holds public hearings before making its final determinations. Roger Workman is very dissatisfied with his assigned wages under the Dharma initiative and seeks judicial review, arguing that the DOL should have used more elaborate trial-like hearings as part of formal rulemaking procedure. Is Roger Workman correct?

o. Yes. This statutory verbiage (which is very rare) triggers the "formal rulemaking" requirement of the APA 556, which include full trial-like hearings before an administrative law judge and a decision based on a formal record, as with formal adjudication. The court will set aside the DOL's wage determinations and order the agency to make new determinations using formal rulemaking procedures that comply with APA 556-557. See Wirtz v. Baldor Electric.

188. Why is cost-benefits analysis important for administrative law?

oo. A number of enabling statutes either require or seemingly disallow the respective agency from considering compliance costs or other economic consequences when formulating new regulations. In addition, a series of important executive orders, starting with President Reagan and continuing through the current administration, have required agencies to submit extensive cost-benefit analysis of proposed major regulations to the Office of Information and Regulatory Affairs (a subdivision of the Office of Management and Budget) for approval before publishing in the Federal Register.

163. What is "hybrid rulemaking" for purposes of administrative law?

p. Hybrid rulemaking is a cross between the APA's informal rulemaking (notice-and-comment procedures) and formal rulemaking (elaborate trial-like hearings). Hybrid rulemaking requires some kind of public hearings in addition to the notice-and-comment procedures of informal rulemaking, but not the full trial-like hearings before an agency head or administrative law judge that would be necessary under formal rulemaking procedures.

190. When government agencies engage in cost-benefit analysis, what is the "benefit" side of the analysis?

qq. The most common "benefit" for cost-benefit analysis of proposed regulations is the number of statistical lives saved. This is difficult to determine, because of scientific uncertainty about the number of statistical fatalities that should be attributed to an activity, debates about the time period officials should consider (a decare or a century?), and the problem of expressing the value of human life in terms of dollars for purposes of comparison with the costs.

165. How are hybrid rulemaking hearings different from those conducted under formal rulemaking procedures?

r. Some enabling statutes require agencies to hold hearings in connection with certain policy determinations (like setting rates or price control) or other regulations, such as the ability to cross-examine agency officials or those who submit opposing comments to the proposed rule, multiple or prolonged comment periods, detailed agency policy explanations, and enhanced judicial scrutiny of the agency's rulemaking procedures. Formal adjudication, on the other hand, must comply with the procedural requirements of APA, such as having an administrative law judge or agency head conduct the hearings, a final decision issued that is similar to a judicial determination, and a record that includes only the transcripts of the proceedings and the evidence submitted during the formal hearings.

191. How do government agencies determine a value for statistical lives saved when conducting cost-benefit analysis for regulations? What is the current value of a human life, for purposes of administrative law?

rr. Agencies vary widely in the values they use for statistical lives saved (VSL) for analyzing a proposed regulation, but most involve some reliance on statistics about average lifetime wages of American workers. Most agencies currently use figures between $2 million and $7 million, with $6 or $7 million being the most common. The Officer of Management and Budget recommends a range of $1 million to $10 million, and most agencies stay within that guideline. Economists, statisticians, and regulators often disagree about the best way to derive a value for a statistical life.

166. The Nuclear Regulatory Commission approves a license for the construction of a fission-reactor power plant in bucolic, rural Vermont, following notice-and-comment procedures, along with voluntary public hearings, for the decision. Ethan Allen and the Green Mountain Men challenge the licensing of the plant in court, arguing that they should have had opportunities to subject the head of the agency to humiliating cross-examination at the public hearings; instead, the agency sent a lower level bureaucrat to hold the hearings and answer basic questions. Given the seriousness of the policy questions involved, should the court compel the agency to use more "hybrid" rulemaking procedures than the agency chose to use?

s. No. In Vermont Yankee v. NRDC, the Supreme Court held that courts may not impose additional procedural requirements on agency rulemaking beyond those required in the APA and the enabling statute. Vermont Yankee mandates judicial deference to agency decisions about what procedures to use for rulemaking, besides those already imposed by statute. Note that this case reversed a prior trend in the federal circuit courts of imposing extra hearing requirements on agencies beyond the requirements in the APA.

192. What is the difference between the value of an individual and the value of a statistical life (VSL)?

ss. Regulators typically ascertain a value of each life saved by first assessing people's "willingness to pay" some amount to reduce their mortality risk by a certain percentage. To determine the number of lives saved, regulators multiply the reduction probability of death by the number of people in the affected population. If exposure to a given health hazard has a 1/1,000 change of being fatal, then eliminating 1,000 exposures yields one statistical life saved. Regulators aggregate small risk reductions for many individuals that together add up to one statistical life. The dollarized value of this statistical life saved (by a regulation) is the Value of Statistical Life (VSL).

167. Cheap & Chintzy Airline brings an action to challenge a devastating minimum airfare rate imposed by the Federal Aviation Administration. The FAA's governing statue authorizes it to set rules and rates "after hearing," but the FAA merely solicited written comments and objections from the airlines after it issued proposed rates, and declined request for oral hearings. Will the court reverse the FAA, and compel it to hold formal, live hearings?

t. No. In U.S v. Florida East Coast Railway, the Supreme Court held that the statute's "after a hearing" verbiage was vague enough to permit the agency to conduct a paper review of the written comments before issuing a decision (in other words, hybrid will making at most, and perhaps informal rulemaking under APA). The railroad company in that case had asked the court to compel formal, on-the-record hearings under the APA, but the court held that such a requirement was inappropriate unless explicitly specified in the statute, as it was in certain FDA statutes.

168. The Little Mermaid challenges a recent decision by the Maritime Administration regarding deep-sea scuba diving near the coast of the U.S. Marshall Islands. The relevant statute commits decisions like this "to agency discretion by law" through a "deeming" clause, and prescribes decision-making procedures, including an exemption from APA 553. The Little Mermaid is upset that the administration accepted ex-parte comments from Ursula, her bitter enemy, in violation of the APA's prohibitions on ex parte communications. The Administration contends that the court cannot imposed the APA's requirements on it if the relevant statute appears to exempt agency from the APA, at least for this type of decision. Mermaid respond that the APA's been on ex parte contacts is founded on fundamental fairness principles and should be imposed traditionally to fill in a parent gotten the statute. Who will prevail?

u. The Little Mermaid will lose this case. In very similar facts, the D.C. Circuit Court held that the Vermont Yankee rule prohibits courts from adding any procedural requirements to agency decision making beyond those explicitly set out in the statute—including APA-based requirements that the enabling statue overly supplements. See District No. 1, Pacific Coast Dist., Marine Engineers' Beneficial Assn. v. Maritime Admin.

194. Horton is a hearing officer for WHO (Workplace Health Office), and he believes that a person is a person, no matter how small. Horton is resistant to the idea of assigning a dollar value to a human life for purposes of preparing a cost-benefit analysis for proposed regulations, as he thinks each person has an infinite value and is therefore priceless. Can Horton insist on regulatory standards that allow zero risk for lost lives?

uu. Probably not. Most agencies' governing statutes require some kind of consideration of costs and benefits in promulgating and enforcing regulations, and most agencies must submit cost-benefit analysis to the Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs (OIRA) for pre-approval. Courts have held a few agencies' governing statues to allow for no consideration of costs, which usually precludes a determination of the value of lives saved, but most agencies need to assign a dollar value to statistical lives saved in order to justify their regulatory activities.

169. What would constitute an "ex parte contact" for purposes of administrative rulemaking?

v. In agency rulemaking, ex parte contacts are communications from interested parties to the agency officials that bypass the protocols of the public comment process. Problems usually arise either when agencies receive some important or influential comments from the regulated industry after the public comment period has closed (thereby precluding other advocacy groups from countering the comments with their own submissions), and when agency officials meet with the President or members of Congress during the rulemaking process to discuss the proposed rule. If the agency is using informal rulemaking (very common), however, ex parte contacts are unlikely to provoke judicial response.

195. The EPA is contemplating a new regulation about power plants using cold water to cool overheated turbines, after which the plants release the water (now very hot) into nearby rivers, which kills many of the fish and plants. The agency bases the new regulation on the most efficient equipment available on the market for addressing the problem, which environmental groups want the agency to select the rule that would force power plants to use the most effective equipment for reducing the problem, even though it is nine times more costly for the plants to purchase and operate. Does the EPA have a choice?

vv. Yes. These are the facts of Entergy Corp. v. Riverkeeper, Inc., in which the Supreme Court held that the EPA had some discretion about how to conduct its cost benefit analysis in selecting the best rule to promulgate. The Case highlights how debatable each part of cost-benefit analysis can be, as seen in the arguments raised by the parties and the strident dissent by Justice Stevens. Ultimately, the majority concluded that the relevant statute authorized the EPA to use some discretion in selecting the best regulator approach.

170. Are ex parte contacts permissible during the informal rulemaking process?

w. Yes, generally. APA 552, which governs informal rulemaking, does not clearly prohibit ex parte contacts during the process, and the courts usually will not reverse agency decisions due to ex parte contacts in the context of informal rulemaking, with a few rare exceptions. See Sierra Club v. Costle. The APA does, however, prohibit most ex parte contacts during formal adjudication by an agency in 554(d).

What are the different types of questions of law that arise in the context of judicial review of agency actions?

− 4 basic categories of questions of law arise when courts review agency decisions. They are: 1. the application of law (statutes or regulations) to a particular set of facts 2. Whether the agency has statutory authority for its decision or actions 3. The agency's interpretation of ambiguous terms in its enabling statute 4. Informal agency policymaking (neither rulemaking nor adjudication) − Courts are generally most deferential for 1 above, least deferential for 2, and fairly deferential for 3 and 4.

What are "standards of review" for purposes of administrative law?

− A standard of review describes the level of scrutiny and the scope of analysis that courts will apply when reviewing different types of agency actions and decisions. For example, some types of agency decisions receive more deference from the judiciary, and some require the judiciary to reinvestigate the factual findings of the agency instead of merely reviewing the agency's compliance with relevant statutes and constitutional requirements. Sometimes the standard of review appears to be mostly a matter of semantics, but there are instances where the standard used can affect the outcome of the case.

What is the "arbitrary and capricious" standard of APA §706?

− APA §706 (2)(A) instructs courts to reverse agency decision that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Courts use "arbitrary and capricious" and "abuse of discretion" almost interchangeably in administrative law cases. The test looks at whether the agency sufficiently articulated a rationale for its decision (even if reasonable minds could differ on the subject), not whether the court agrees with the outcome on the merits. − Supposedly, this is a very deferential standard, because the court does not reverse the agency decision even if it disagrees with it on the merits. The courts can be very strict, however, in their requirements for an articulated rationale for the decision. The ambiguity about what constitutes a "sufficiently articulated" rationale allows courts room to give more scrutiny to decisions with which they disagree. This problem creates an incentive for agencies to create an enormous paper trail for every decision.

What is the "substantial evidence" test?

− APA §706 (2)(D) says that the substantial evidence test applies to agency decisions "subject to sections 556 and 557" of APA—that is, to formal adjudication and formal rulemaking (also called "on-the-record" decision making; both require formal hearings). The court reviews the agency's hearing record and decisions and determines whether the result is supported by "substantial evidence" in the record. If so, the court should defer to the agency's decision, even if it disagrees with the result on the merits. This is the same standard used for evaluating the sufficiency of evidence submitted to a jury in appellate review of trial court verdicts.

When should a court apply de novo review to an agency action?

− APA §706 (2)(E) permits de novo review in only 2 circumstances: 1. When the agency action is adjudicative and the agency's own procedures appear to be inadequate for ensuring a valid result 2. When issues not before the agency are raised in a court proceeding to enforce the agency's decision (non-adjudicatory decisions).

When a reviewing court applies a standard of review to the agency record, what does it consider?

− APA §706 requires courts to examine the entire record of the agency decision for purposes of judicial review. The record is made up of all the information the agency had and considered prior to its decision, not merely the information supporting the agency decision. Whether applying the arbitrary and capricious standard, the substantial evidence test or de novo review, the court will look at all the data, memoranda, comments submitted by the regulated industry or other interested parties, and so on.

What is Chevron, Step 2, for purposes of judicial review?

− After concluding that the relevant statute is ambiguous, the court moves on to Chevron step 2, where it analyzes whether the agency's interpretation is "permissible," "sufficiently rational," "reasonable," or "not arbitrary and capricious." (The Supreme Court has used all these terms in different cases, creating some confusion about the boundaries of Chevron deference.) − The bottom line is that the court is very deferential to the agency on this point; it is rare to find a case where the agency loses on Chevron Step 2.

REVIEW: When may a court use the "arbitrary and capricious" standard in reviewing administrative agency actions?

− Always. APA §706 places no restrictions on when court may apply the "arbitrary and capricious" standard, unlike some of the other standards of review. This makes it one of the most common standards of review in administrative law cases, as it functions as a type of default standard of review. Some parties seek a less deferential standard of review in their own case, such as the "substantial evidence" test.

Bonnie Badluck claims that her federal constitutional rights were violated by her home state's Health and Human Services Commission. If Badluck chooses to seek damages as compensation for the violation of her constitutional rights, should she file suit against the state agency or against a state official?

− Bonnie Badluck should file suit against a state official because the Eleventh Amendment prohibits federal courts from awarding damages against state government agencies.

Laurel and Hardy are both attorneys working for a government agency, preparing their briefs for litigation about a recent agency decision in which it abruptly changed its own interpretation of an ambiguous term in its enabling statute. Laurel says that the case will turn on "Chevron step 2" analysis by the court; that is, whether the agency's new interpretation is reasonable. Hardy, in contrast, insists the court will simply apply the "arbitrary and capricious" standard and assess the agency's articulated rationale for the abrupt policy change. Which one is correct?

− Both are correct! In these cases, courts will often ask whether the new interpretation meets the Chevron test, and then will also review the agency's justification for the change under the "arbitrary and capricious" standard. Both are supposed to be deferential to the agency, but both are flexible enough to allow courts to produce the results they want.

Can federal courts award damages against states and state government agencies?

− NO. Federal courts are prohibited by the Eleventh Amendment from awarding damages against states and state government agencies. It should be noted, however, that although the federal courts are prohibited from awarding damages against the states, state officials can be held liable for damages. For that to occur, the plaintiff must look to that individual rather than the state for damages.

What is the Chevron Test?

− Chevron USA v. NRDC, is one of the most cited, most influential Supreme Court cases of all time. It set forth a 2-part test for assessing an agency's interpretation of statutes: (1) is the statutory term or provision ambiguous? (if not -if it is explicit—then obviously the agency must adhere to the statute); (2) if it is ambiguous, is the agency's interpretation reasonable? − The Chevron "rule" is that courts must defer to administrative agencies whenever their interpretation of an ambiguous statute is at least "reasonable." This is a relatively easy burden for the agencies to meet, so they usually prevail if the court answers the first prong in the affirmative. − NOTE: Chevron is featured prominently in almost every administrative law course, and is a case you should probably know by name for your final exam, along with its 2-pronged test and the basic facts of the case.

How does Auer deference differ from Chevron deference?

− Chevron deference applies to agency interpretations of ambiguous STATUTES, but Auer deference applies when the agency is arguing for a particular interpretation of its own rules or regulation. Auer thus covers an agency's interpretation of rules the agency itself made, as opposed to interpreting Congressional legislation. Auer is a more deferential standard than Chevron, because Auer requires judicial acquiescence unless the agency's interpretation is "clearly erroneous," while Chevron requires that the agency's position be "reasonable," which allows for somewhat less judicial deference. Some commentators argue that the rules produce the same results. − Note that under either Auer or Chevron analysis, if the agency takes a position completely inconsistent with its long-standing practice, without justification, courts will weight that as one factor against deferring to an agency.

How do courts analyze an agency's application of the relevant law to the facts of a particular case?

− Courts are very deferential to administrative agencies in their decisions about how to apply their governing statute to the facts in an individual case. If the question is a matter of common law or something outside the agency's area of expertise, the court will refer to the judiciary's interpretation and precedent. For matters within the agency's purview, however, the courts will defer to the agency's application of the law to facts, as with the NLRB's decisions about whether certain workers are employees for purposes of the National Labor Relations Act.

Under the APA, to what kind of actions by agencies do courts generally apply the "substantial evidence" test?

− Courts use the substantial evidence test to review formal, on-the-record rulemaking or adjudication.

An agency is involved in litigation that turns on its expansive interpretation of the word "substantial" in a clause of its enabling statute. In applying the Chevron test to this case, the Supreme Court looks to outside, non-legislative materials to decide whether the term is ambiguous. What are the outside (non-legal) reference books relied on by the Supreme Court in Chevron-progeny cases?

− DICTIONARIES! Because the agency will almost always win at Chevron Step 2, step 1 of the test becomes the "battleground" between Supreme Court Justices who want to uphold or reverse the agency's decision for policy reasons. In post-Chevron cases, therefore, the court has applied strict rules of statutory construction to the words of the statute to discern a "clear" meaning, or will revert to looking up the words in the dictionary to argue that their meaning are well defined (and therefore not ambiguous). Justice Breyer has stated that he believes all words have ambiguity (meaning he is more likely to push forward to step 2 and defer to the agency), where as Justice Scalia believes the text usually has a single, obvious intent. − Some administrative law casebooks include a series of these "dictionary" causes where the majority and dissenters on the Court use rival dictionaries (i.e., Webster's v. the Oxford English Dictionary) to prove that the terms are clear or capable of various interpretations.

What is de novo review for purposes of administrative law?

− De novo review is where the reviewing court looks at the original, underlying facts in the case and makes its own determination without any deference to the agency's prior fact-finding. Typically a trial court retries the case to make new factual determinations. It if relatively rare in administrative law.

If your claim against a federal government official does not fall within the scope of the FTCA, is there another avenue you could use for seeking damages against that official? If so, what type of claim might you bring?

− Even if your claim does not fall within the FTCA, you might still be able to bring a claim against a federal government official by claiming that his or her conduct violates the Constitution. Generally, these types of claims are referred to as Bivens actions after the case in which the Supreme Court created an action against federal officials for damages that stem from constitutional violations.

Which, if any, administrative officials have absolute immunity?

− Generally, administrative officials who perform judicial, legislative, and prosecutorial functions are absolutely immune from damages.

The Department of Agriculture (DOA) passes a new regulation limiting the use of diverted rivers and streams to carry away animal manure on farms. Hercules has been using this very method for cleaning his horse stables, and he challenges the rule in court. The relevant statute requires that the DOA hold public hearings before promulgating regulations, which they did. During the judicial review proceedings, Hercules argues that the court should apply the substantial evidence test, because the statute requires the agency to hold hearings, knowing that this involves a higher degree of judicial scrutiny than the court would otherwise apply. The DOA argues that the court should use the arbitrary and capricious standard instead, which is more deferential. Who is correct?

− Hercules is mistaken. Even though the statute requires the agency to conduct hearings, these are still part of informal rulemaking and not formal rulemaking for purposes of APA §§556-557. Because the agency did not have to conduct formal, on-the-record rulemaking, the court will use the arbitrary and capricious standard, as the DIA contended.

Why does it matter whether a court deems an issue to be a question of fact or a question of law when reviewing agency actions?

− The APA provides for all three standards of review to apply to questions of fact in different circumstances: the arbitrary and capricious standard, the substantial evidence test, and de novo review. By far the most common, however, is the substantial evidence test, because questions of fact most often arise from formal agency adjudications.

A new law prohibits the construction of "new oil refineries" unless they meet impossibility strict antipollution standards. Lisa Simpson's Environmentalist Club is upset because the EPA permitted Mr. Burns to build a new refinery facility as an addition to an older, existing refinery that is no longer operational. The EPA contends that an addition to a previously existing refinery is not a "new oil refinery" for purposes of the statute. When Lisa's Environmentalist Club challenges the agency's interpretation in court, how will the judge treat the EPA's novel interpretation of the statute?

− In Chevron USA v. NRDC, the Supreme Court held that the judiciary should show deference to agency interpretations of ambiguous statutory terms, as long as they are reasonable. The facts here are based on the Chevron case and the EPA's "bubble rule," where the applied the term "stationary source" only to new oil refineries that were not attached to old, preexisting facilities.

What is Chevron, step 1, for purposes of judicial review?

− In step 1 of a Chevron analysis, the court asks whether Congress has spoken clearly or precisely about the issue in the case; in other words, whether the statute is clear or ambiguous on that point. If it is clear and explicit, then the agency must simply follow what the statute mandates. The court will reverse the agency's decision if it conflicts with the explicit meaning of the statutory verbiage, and there is little or no judicial deference in that case. If the statutory verbiage is unclear or ambiguous, the court will proceed to Step 2, and assess whether the agency's interpretation is "reasonable."

How does Chevron Step 2 "reasonable" standard differ from the APA's "arbitrary and capricious" standard?

− In terms of results, they are the same. The Supreme Court recently announced in an immigrant removal case that Chevron step 2 and the "arbitrary and capricious" standard yield identical results. − The Court also held that Chevron applies to cases involving agency interpretations of a statute (that is, its enabling statute), while the APA "arbitrary and capricious" standard can apply to all other types of agency decisions.

What standard of review would a court use to assess the agency's statutory authority for making a certain decision?

− It depends. If the case is a classic ultra vires issue—where the agency did something completely outside the scope of its statutory authority—the court is unlikely to be deferential. Most cases, however, are more subtle, and involve question like the agency's authority to grant exemptions from certain regulatory requirements in extenuating circumstances. Historically, courts were not deferential in such cases, partly out of nondelegation concerns. − Modern cases tend to be more deferential to the agency's understanding of its own authority, as long as the statute is ambiguous rather than explicit on the point.

Can a court hold a municipality vicariously liable for constitutional violations committed by its employees?

− NO, a municipality cannot be vicariously liable for constitutional violations committed by its employees. The municipality, however, can be held liable for municipal policy or customs that violate the Constitution.

Thelma and Louise live in Maine, but they are very concerned about the effects of U.S. Navy submarine exercises on dolphins in the Pacific Ocean. They are members of a club named Dolphins Are People, Too (DAPT). Neither of them has even seen a dolphin or left the state of Maine. They sue in the name of their club, DAPT, under the Marine Mammal Protection Act (MMPA), to enjoin the Navy from harming the dolphins with their submarine exercise. Will they have standing to bring this suit as member of DAPT?

− NO, because of their lack of contact with the dolphins, and unlikelihood of future contact, means they have not suffered an injury in fact.

Is strict liability allowed under the FTCA?

− NO, the FTCA does not allow for strict liability claims. Courts have interpreted the Act, which specifically allows for liability for "negligent or wrongful" acts, to preclude claims of liability without fault.

Does the FTCA provide for a trial by jury?

− NO, the FTCA does not provide for jury trials. This deters some plaintiffs from filing FTCA claims, compared to traditional tort suits.

Does the FTCA provide for punitive damages?

− NO, the FTCA does not provide for punitive damages

The Board of Immigration Appeals argues to a court that the standard of judicial review for the Board's interpretation of the relevant immigration statutes should be Chevron deference rather than the "arbitrary and capricious" standard under the APA. The Board believes that the Chevron approach is more favorable to the agency than the arbitrary and capricious standard. Is the Board correct?

− NO, the Supreme Court recently announced in an immigrant removal case that Chevron Step 2 and the "arbitrary and capricious" standard are the same and yield identical results.

Should a court decline to analyze an agency's interpretation under the Chevron framework because the agency applies it inconsistently?

− NO. "Agency inconsistency is not a basis for declining to analyze the agency's interpretation" under the Chevron framework. Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. For if the agency adequately explains the reasons for a reversal of policy, "change is NOT invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency."

At common law, could a person bring a suit for damages against the government and government officials?

− NO. At common law, a person could not bring a suit for damages against the government or a government official acting in his or her official capacity unless the government consented to the suit.

Viola Victim filed a Bivens action against the Federal Bureau of Investigation (FBI) claiming that two of its agents violated her constitutional rights by searching her home without a warrant and arresting her without probable cause. Is it likely that her Bivens action against the FBI will prevail?

− NO. Because federal agencies cannot be sued under Bivens, Viola cannot prevail in her suit against the FBI. Liability under Bivens can only be assessed against individual government officials, so for her claim to ever have been valid she would have had to file the Bivens action against the FBI agents individually.

Ever since his appendectomy at the Veterans Hospital, G.I. Joe, a veteran, suffered from severe stomach pains. Unable to stand the pain any longer, Joe went back to the hospital to try to get to the bottom of what was causing the pain. X-rays of his stomach showed that the doctor who performed the surgery had left gauze and a scalpel inside Joe's stomach. After having the objects removed from his stomach, Joe talked with fellow veterans and mentioned that he might file suit against the Veterans Affairs hospital for medical malpractice. In response, a fellow veteran, Lieutenant Dan, tells Joe that the Feres Doctrine bars him from being able to make this claim. Is Dan's assertion correct?

− NO. It has been held that the Feres Doctrine does not bar veterans from filing medical malpractice claims for negligent care in a Veterans Affairs hospital. Accordingly, Joe is not barred by the Feres Doctrine from filing suit against the hospital for the alleged negligence that occurred during his surgery.

Jack filed a wrongful act suit against Simon, the Director of the Federal Mediation and Conciliation Service. Because Jack's claim fell within the scope of the FTCA, the government was substituted as the defendant in Jack's suit. Although the government was able to prevail against Jack's claim based on an exception to FTCA liability, Simon is concerned that Jack might once again try to bring suit against him individually as a defendant. Is Simon's concern warranted?

− NO. Simon should not be concerned about Jack bringing the claim against him. Once it is determined that the government will be substituted in place of the government official being sued in an FTCA case, the official is released from liability. Thus, even though the government prevailed in the case against Jack, Simon retains his immunity and Jack cannot now bring Simon back into the case as a defendant.

The Customs Service has a regulation imposing certain tariffs on imported "diaries" and "day planners." A foreign book distributor wants to import copies of the book The Diary of Anne Frank, and the Customs Service issues an informal "ruling letter" saying that the tariff on "diaries" clearly does not apply to reprints of Anne Frank's diary. A competitor challenges this ruling in court. Will the court apply the Chevron rule to this agency decision?

− NO. The Supreme Court has held that Chevron deference does not apply to opinion letters and ruling letters from administrative agencies, but rather uses a balancing test that considers the thoroughness of the agency's consideration, the persuasiveness of its reasoning, the agency's internal consistency, the wording and intent of the statute, and so on.

The IRS claims that Ross and Monica Geller overstated their basis in property they sold five years ago, thereby understating their taxable income. In court, the critical issues is whether the timing of the IRS action—the IRS suddenly claims that it has a six-year look-back period for capital gains reports, but Ross and Monica argue that the long-standing policy of the IRS was a three-year period, which courts have consistently followed. The IRS urges the court to give Chevron deference to its new position and rule in its favor. Is the IRS correct?

− NO. The US Supreme Court held that the recently promulgated agency regulation equating an overstatement of unrecovered cost or other basis with an omission from gross income was not entitled to deference under Chevron based on ambiguity in the statute. Precedent has already interpreted the statute and that was no longer any different interpretation, which is consistent with the precedent and available for adoption by the government.

Jesse Pinkman and Lydia Rodarte-Quayle are pharmaceutical sales reps for Walter White Pharmaceuticals. Lydia and Jesse travel different regions of the country meeting with physicians, trying to convince the doctors to prescribe Walter White medicines to their patients. Although they have large salaries and commissions, company cars, an infinite budget for traveling expenses and lavishly entertaining doctors and nurses, Jesse and Lydia decide to sue for overtime pay for the downtime they spend in hotels while making the rounds in their sales districts. The Secretary of Labor, Mike Ehrmantraut, files an amicus brief in support of Jesse and Lydia, arguing that pharma reps like Jesse and Lydia should receive overtime pay, a complete reversal of the DOL's long-standing position on this issue. Is Secretary Ehrmantraut's new interpretation of the regulations entitled to deference under Auer v. Robbins?

− NO. These facts resemble those in Christopher v. SmithKline Beecham Corp., in which the Court held that the Secretary's current interpretation of its regulations was not entitled to Auer deference because the new liability (millions of dollars in overtime pay) would be an unfair surprise for the pharmaceutical companies. In addition, the Secretary's regulation merely parroted the statute itself; and such rules merit less deference by courts because they are not interpretive. This case suggest that the Court now imposes two qualifications on Auer super-deference: the agency's interpretation cannot be an abrupt change or surprise, and the rule interpretation must involve more than merely restating the ambiguous statutory verbiage and insisting that it pushes in favor of one party in the current case.

580- Officials of Nearby City, a small municipality, claim that Nearby cannot be sued for liability under 42 U.S.C. § 1983 because it is a municipality and not a "person" subject to suit under that statute. Is this assertion correct?

− No, Nearby's assertion is NOT correct. The Supreme Court has held that for suits arising under 42 U.S.C. §1983, municipalities are considered "persons" and are subject to liability under the statute.

The Banking Commission decides to restrict the practice of overdraft protection to consumers on their checking accounts. The Commission holds public hearings in ten major cities around the country, during which consumer advocacy groups and bank representatives testified, presented evidence for or against the proposed regulation, and asked questions of the Commission officials. After the final rule is published in the Federal Register, an industry association of banks challenges the rule as not supported by substantial evidence. Is this the proper standard for judicial review?

− No, the court will use the "arbitrary and capricious" test under APA §706. Substantial evidence review under the APA is for formal, on-the-record rulemaking. Even though the agency chose to hold public hearings before promulgating this rule, it was not required to do so, and the process should still be categorized as informal rulemaking.

When would a court apply de novo review to a question of fact?

− The APA provides only two circumstances: (1) where agency adjudication procedures for fact-finding were flawed, and (2) where new factual issues arise after the agency's determination, but before the agency completes its enforcement action. − De novo review of facts under APA §706(2)(F) is therefore extremely rare. The agency's enabling statute may also provide for de novo judicial review of certain agency decisions, but there is a presumption against this for ambiguous statutes.

Tony Stark Suffers from a life threatening heart condition, and survives only because of a revolutionary new pacemaker device "Ironman." His employer, out of goodwill, lets Stark continue at his position despite his chronic absences, utter lack of productivity, inability to meet deadlines, poor judgment, and irritability toward co-workers. The Social Security Administration denied Stark's claim for disability benefits on the grounds that his current employment automatically proves he is able to work. The Administration ignores extensive medical testimony to the contrary when making its decision. Will a reviewing court agree to ignore the medical evidence based on Stark's work status?

− No, under APA §706, the court will look at the entire record, all the evidence that the agency has in its file. In this case, the fact that Stark's employer kept him on the payroll out of generosity, despite his loss of functionality, should not be the only dispositive fact in the case.

Harvey Dent is a two-faced politician who ends up becoming the director of an administrative agency. When the regulated industry challenges some of the decision of his agency in court, Harvey submits an administrative record that includes only the evidence supportive of his decisions, and leaves out the evidence that suggested an alternative policy would have been a better choice. Can an administrator like Harvey control what is in the record for purposes of judicial review?

− No. For purposes of judicial review of agency actions, the court will look at the "entire" record—all the evidence that the agency had up to the time of its decision—not just the evidence that supports what the agency decided to do.

Susan owns a local convenience store. Most of her clientele are on the government food stamp program. The food stamp agency passes a rule greatly curtailing the food stamp program, and Susan's business dwindles. May Susan sue the agency for cutting off the food stamp supply?

− No. Susan cannot assert the rights of the third party in her claim against the agency. Unless Susan is the recipient of food stamps herself and has been harmed individually due to the new policy, she does not have standing to sue. − Note that Susan would have standing to sue if the agency ruled that Susan could no longer accept food stamps at her store.

The Fish and Wildlife Service (FWS) decides to add tigons (a cross between lions and tigers) to the list of endangered species, because they seem to be rare and exotic. This designation interferes with the development of large areas that could host new housing subdivisions, so developers challenge the designation and seek judicial review. On the eve of trial, FWS discovers new evidence that tigons are usually sterile and cannot easily reproduce, and offers this as further evidence in support of its decision. Can the agency defend its decision based on newly discovered evidence?

− No. The "record" that the court will consider includes only the material that was available to the agency up to the time it made its decision. Courts will not allow agencies to come up with post-hoc rationalizations for their decisions.

Although the Feres Doctrine bars claims incident to military service, does it also bar members of the military from bringing a FTCA suit for negligent driving by a civilian driver?

− No. The Feres Doctrine has been held not to bar negligence claims by members of the military arising from negligent driving by civilian employees.

The state bar association, with the support of the ABA, rescinds its long-standing prohibition on law firms offering other professional services, like accounting or high-tech consulting. When this rule change is challenged in court the bar association argues that its action should receive more deference as a "deregulation" or rescission as opposed to a newly promulgated rule. Is the court likely to agree?

− No. This was the argument the agency used in the Airbags case, and the court rejected the idea that it should use different standards of review for regulation and deregulation.

What is the standard of review that courts use when analyzing questions of law?

− Originally, courts review questions of law de novo; that is, giving the least possible deference to the administrative agencies. The idea was that legal doctrine or statutory interpretation was more properly the domain of the judiciary. − In modern times, courts are more likely to apply a deferential standard (like the arbitrary and capricious standard) for agency interpretations of law. The degree of deference a court shows to the agency's interpretation of deference a court shows to the agency's interpretation of law seems to depend on what type of legal question it is.

What standard of review should a court use for reviewing questions of fact?

− Overall, substantial evidence is a deferential standard, so in most cases the agency should prevail. Sometimes, however, the agency has itself reversed the decision of its own administrative law judge, who had the opportunity to take oral testimony from witnesses and assess their credibility. The Supreme Court has held that the ALJ's findings of fact should receive special weight because of the advantage ALJs has in assessing credibility and reliability of testimony and evidence; the agency's decision to reverse the ALJ therefore has "less substantial evidence" supporting it.

What is qualified immunity?

− Qualified immunity is a doctrine that generally arises when Bivens claims are filed against federal officials. For example, an administrative law judge for a federal agency not only adjudicates appeals made to the agency, but it also has the power to hire and fire employees of the agency. When acting as an adjudicator, the ALJ is performing judicial functions and thus is immune from liability in Bivens actions. − In contrast, when the ALJ is performing administrative duties (i.e., hiring and firing) there is no absolute protection against liability. The ALJ would received only qualified immunity and can thus be liable for damages if violating an individual's constitutional rights.

What is the difference between a question of fact and a question of law, for purposes of judicial review of agency actions?

− Questions of fact focus on the facts or information in the record, which the agency considered in making its decision. Questions of law are usually the agency's interpretation of its own enabling statute, but can also refer to constitutional issues like due process during an agency hearing, or whether the agency is acting within its statutory authority. The lines become blurry, however, in actual cases. Most cases involve issues that could be characterized as a "mixed question of law and fact."

When should courts apply the "arbitrary and capricious" standard in reviewing agency decisions?

− The "arbitrary and capricious" standard of review is the default rule that applies anytime the other two standards do not; That is, when the case requires the "substantial evidence" test or "de novo" review. In other words, the "arbitrary and capricious" standard applies most of the time.

Sacred Heart Hospital sued for a refund of employee taxes paid for medical residents; traditionally, teaching hospitals considered doctors in their residency to be students rather than employees, meaning the residents could work 80-hour weeks without receiving overtime pay. The Treasury Department, however, has adopted a new policy that medical residents are, in fact, employees, so the hospital owes employee taxes (Social Security and FICA) on their salaries plus overtime pay. The Hospital argues that the court should not apply Chevron deference to the Department's policy, but rather apply special scrutiny that courts have traditionally imposed on new tax policies. The Department argues that Chevron deference is appropriate in this case and that its policy is reasonable. Which side is correct?

− The Department is correct. In Mayo Foundation for Medical Educ. And Research v. US, the Supreme court held that the Chevron approach should apply uniformly across agencies, rather than having special rules (or varying levels of scrutiny) for certain agencies like the IRS.

Why is the FTCA important for administrative agencies?

− The FTCA is important because it allows for damage suits to be brought against the government when the conduct of agencies or their administrators is allegedly tortious.

Generally, sovereign immunity bars suits against the government unless the government consents to being sued. The FTCA, however, waives sovereign immunity protection for certain "acts or omissions committed by the United States or its employees." What types of cases fall under this waiver?

− The FTCA waives sovereign immunity in cases where either the US government or one of its employees has allegedly committed a negligent or otherwise wrongful act or omission.

What is the Federal Tort Claims Act (FTCA)?

− The Federal Tort Claims Act (FTCA) waives the sovereign immunity of the United States in cases where the US government or an employee of the government has committed a negligent or otherwise wrongful act or omission.

What is the Feres Doctrine?

− The Feres Doctrine is a non-statutory exception to the FTCA for military activities, based on the holding Feres v. US. The doctrine essentially bars persons on active military duty from filing FTCA claims for injuries that occur while they are actively serving in the armed forces.

A federal statute allows the Department of Interior to acquire land to provide to Native American tribes. The Screaming Banshee Tribe received a tract of land from the Department; they plan to build a large casino on it. The Lone Ranger is the adjacent landowner, and he sues the Department to rescind the land grant, as the casino will increase traffic, noise, and crime in the neighborhood. The Lone Ranger claims the agency lacked statutory authority to make the grant because the Screaming Banshees were not a federally recognized tribe at the time of the statute's enactment. The Department and the Screaming Banshees argue that the Lone Ranger lacks standing to challenge a transaction between a government agency and those under it purview. Who is correct?

− The Lone Ranger HAS standing. These facts come from the Supreme Court's decision in Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak, in which it held that the adjacent landowner fell within the zone of interests for standing. A claimant suing under the APA must assert a violated interest that is "arguably within the zone of interests to be protected or regulated by the statute." Given that the statute at issue here involved land use, neighbors to the land used are reasonable and predictable challengers of the Secretary's decisions. Their interests, whether economic, environmental, or aesthetic, come within Department's regulatory ambit and satisfy the one of interest test.

How does statutory ambiguity relate to judicial deference and agency interpretation?

− The Supreme Court has held that statutory ambiguities are delegations of authority by Congress to the agency, intending for the agencies to fill the statutory gaps in a reasonable way. "Filling these gaps," the Court explained, "involves difficult policy choices that agencies are better equipped to make than courts. If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation."

Newspaper editor J. Jonah Jameson is trying to avoid having his "newspaper boys" like Peter Parker unionize—he claims they are not really his employees, but rather freelance writers who contribute articles for his newspaper. The National Labor Relations Board (NLRB) determines that Peter Parker and his colleagues are, in fact, employees for purposes of unionizing under the National Labor Relations Act. When Jameson seeks judicial review, he asks the court to reverse the agency's application of law to these facts, which he claims is more appropriately the domain of the judiciary. The NLRD contends that this simply a factual determination within the agency's area of specialized expertise. Who is correct?

− The Supreme Court upheld the NLRB's determination on this issue in NLRB v. Hearst Publications (defining "newsboys," or newspaper delivery men, as employees). The Court deferred to the agency's interpretation of the law.

497- The office of Personnel Management uses formal rulemaking to promulgate a rule that "days" for purposes of medical leave means "workdays," not calendar days. Dwight Schrute challenges the rule, insisting that the agency should use calendar days, which would have applied to personal days "in the wild." Will the court use the "substantial evidence" test when reviewing OPM's decision?

− The court is likely to use the "substantial evidence" test of APA Section 706(2)(D) says that the substantial evidence test applies to agency decisions "subject to sections 556 and 557" of the APA—that includes the formal rulemaking described here. The court will review the OPM's hearing record and decision and determine whether the result is supported by "substantial evidence" in the record. If so, the court will defer to the agency's decision, even if it disagrees with the result on the merits.

Watson loses his case in a agency enforcement action. He hires a private detective, Sherlock Holmes, to help him find better evidence while he seeks judicial review of the agency's action. Holmes actually discovers new evidence, while the case is waiting for trial, that agency officials had received bribes from a competitor within the regulated industry, which induced the agency to commence the enforcement action based on falsified evidence. What standard of review will a court use when reviewing this agency action?

− The court is most likely to employ de novo review in this case, because the new evidence indicates that the agency's fact-finding procedures were flawed.

The Keystone Cops sue the Board of Police Commissioners under the Fair Labor Standards Act, seeking overtime pay for any hours worked over the 40-hour standard workweek. The Board insists that the Cops fall under a statutory exemption to the FLSA as salaried employees, and are thus ineligible for overtime pay. The Department of Labor has promulgated some confusing regulations and exceptions on this point, which the Cops and the Board interpret differently, but the DOL has always interpreted its own regulations as excluding police from eligibility for overtime pay. Whose interpretation should the court follow?

− The court should defer to the Department of Labor, the author of the regulations, as the ultimate authority on what the regulations mean. These are the basic facts of Auer v. Robbins, the case from which we get the name "Auer deference." − Note that the court will defer to the Department even though the Department is not a party to this case—the litigation is between the Cops and their local Board. The Supreme Court solicited an amicus brief from the DOL and then followed the agency's position. Note that the Auer decision relied on earlier precedent, especially Bowles v. Seminole Rock & Sand Co. for this approach.

In litigation, if an agency and another party disagree about the meaning of one of the agency's regulations or rules, whose interpretation should prevail?

− The court should defer to the agency's interpretation of its own rules and regulations unless the agency's position is clearly erroneous and contradicts the regulation. This is a super-deferential standard, and empirical studies show the courts rule in favor of agencies about 90% of the time when Auer deference is an issue. − Note that some recent decisions have added a factor: if the agency's interpretation represents an abrupt, unannounced change from its interpretation of the rule in previous cases, that may weigh against giving the agency Auer deference.

OSHA engages in informal rulemaking, following all the notice-and-comment procedures required by the APA. During the comment period, the regulated industry submits four separate scientific studies suggesting that OSHA's proposed standards rely on rounded-off measurements that might prove unreliable in preventing the type of toxicity exposure that the regulation is supposed to address. OSHA has only one scientific study supporting its adopted standard. In this final rule, OSHA acknowledges the four other scientific studies that contradict its own, but asserts that enforcement would be infeasible and impracticable if the agency had to use the more precise measurements suggested by the industry's studies. The agency explains in detail the feasibility problems with enforcement and uniformity of treatment if the more precise measurements were the legal standard. The industry challenges the rule as contrary to "substantial evidence," given the greater number of scientific studies supporting its position, and therefore "arbitrary and capricious" on the part of the agency. How will the court probably respond to this challenge?

− The court will agree that the "substantial evidence" might contradict the agency's decision, but that the decision was not "arbitrary and capricious" because the agency stated a valid policy rationale for adopting the rounded-off measurements, and will rule in favor of the agency because the substantial evidence test is inapplicable here.

The Department of Transportation (DOT) decides to route a major highway through Hermann Park in downtown Houston, and memorializes the decision in a one-sentence official memorandum that say, "The proposal to route the highway through Hermann Park in Houston has been thoroughly considered and is hereby approved." The Citizens to Preserve Hermann Park seek judicial review, claiming that the enabling statute requires the DOT to seek alternative routes instead of running the new highways through existing parklands. There is no record of the DOT's decision except for the brief memorandum. How will the court rule, and what standard of review will a court use when reviewing this agency's action?

− The court will invalidate the DOT's decision for failing to articulate its consideration of possible alternate routes for the highway. − See Citizens to Preserve Overton Park v. Volpe, which involves almost identical facts to those described here, except that the highway was to bisect Overton Park in downtown Memphis. The Supreme Court also held that courts should use the arbitrary and capricious standard and require a detailed articulation of the basis for the agency's decision, including its reasons for rejecting viable alternative courses of action.

The FAA decides, in a §553 rulemaking, to rescind its prohibition on using cell phones during commercial flights. The airlines submitted comments arguing against the change on the basis that the use of cell phones annoys nearby passengers, and interferes with the flight crew's ability to make safety announcements during the flight. The FAA publishes its rule anyway, making no mention of these comments by the airline industry. When the airline association challenges the rule in court, what will be the result?

− The court will probably hold that the agency's rulemaking was arbitrary and capricious, because it failed to consider or discuss the reasonable comments submitted by the airlines. If the comments had been silly or completely unsubstantiated, the court would probably affirm the agency's silence about them. Reasonable or well-substantiated comments, however, merit some discussion or rebuttal by the agency if it decides to continue with its agenda despite the comments.

The Customs and Immigration Service seizes some foreign passengers as they disembark from a plane in Houston's Intercontinental Airport, because they lack visas to enter the United States, and immediately puts them on a plane back to their county of origin. Through an attorney, the deported travelers seek judicial review of this action. What standard of review will a court use when reviewing this agency's action?

− The court will probably use the arbitrary and capricious/ abuse of discretion standard and require a detailed articulation of the basis for the agency's decision. If the agency had used formal adjudication (which it would do only if required by statute), the court would use the "substantial evidence" test. If the enabling statute requires more searching analysis by the court, however, it will use the standard prescribed there.

When a court decides to evaluate an administrative agency action to determine if the action was "arbitrary and capricious" or an "abuse of discretion," what will the court require from the agency?

− The court will require a detailed articulation of the basis for the agency's decision, including its reasons for rejecting viable alternative courses of action.

The Department of Transportation is building a new interstate highway through Texas. Rather than spend extra money to loop around a major city, the Secretary decides to have it bisect Hermann Park in downtown Houston. His decision is commemorated in a one-paragraph memo stating, "The new highway will cut through the middle of Hermann Park." The Neighbors of Hermann Park seek judicial review of this agency decision, and ask the court to apply the strict de novo standard of review, given that this is not exactly adjudication or rulemaking. The Secretary contends that this is simply agency policymaking and is completely within his discretion. How will the court rule?

− The court will review this type of agency policy decision under the "arbitrary and capricious" standard. Where the Supreme Court rejected de novo review for these cases, but still invalidated the agency's decision for failing to consider viable alternatives. This is sometimes called the "hard look" doctrine, where courts claim to be applying a deferential standard (arbitrary and capricious), but scrutinize the agency's policy decision for adequate support, careful reasoning, and consideration of alternatives.

The FDA decides to regulate the temperature of coffee sold by fast-food restaurants. During the comment period on its proposed rule, every major fast-food chain suggest different optimal temperatures, based on its own clientele's preferences, typical length of commute, average age, and so on. The FDA decides to adopt the suggested temperature of McDonald's as its final for everyone, because McDonald's is the most famous fast-food chain and generally leads the industry in everything. The FDA simply stats that it adopted the McDonald's suggestion, and assumes everyone will think it is sensible to imitate what McDonald's does, especially because they all imitate McDonald's business practices in most other areas. All the other fast-food chains challenge the rule as being arbitrary and capricious. How will the court rule?

− The court will rule against the FDA because the agency failed to state an adequate reason for adopting one temperature as opposed to another.

The enabling statute of an agency, which authorizes judicial review of certain agency actions, states that the agency's decisions must be based on "substantial evidence" in the record. The APA would require review under the "arbitrary and capricious" standard. What test will a court use when reviewing these actions?

− The court will use the "substantial evidence" test, which involves more judicial scrutiny (less deference) than the "arbitrary and capricious" standard of review. If the enabling statute requires more searching review than the APA for particular agency decision, the courts will follow the enabling statute rather than the APA.

The EPA has engaged in informal, notice-and-comment rulemaking, publishing its proposed and final rules in the Federal Register. Ima Polluter is part of the regulated industry and faces significant cost increase if forced to comply with the new rule, so he challenges the agency's notice-and-comment procedures, saying the EPA ignored scientific studies he submitted during the comment period that undermined the credibility of the rule. What standard of review will the court use to evaluate the case?

− The court will use the arbitrary and capricious standard and require a detailed articulation of the basis for rejecting viable alternative courses of action.

The Treasury Department decides to disburse $10 million of the recent "bailout package" to Startup Savings Bank to preserve its liquidity. A citizen group called Bail U Out Yourself (B.U.O.Y.) challenges the action and seeks judicial review. What standard of review will the court use to evaluate the case?

− The court will use the arbitrary and capricious standard and require a detailed articulation of the basis for the agency's decision, including its reason for rejecting viable alternative courses of action.

Mr. Burns wants to challenge a recent decision by the Nuclear Regulatory Commission that does not fall neatly into the categories of rulemaking or adjudication; the Commission simply decided that Springfield's nuclear power plant should be subject to a round of detailed inspections. What is the most common standard of review for this nondescript category of agency actions?

− The court will use the arbitrary and capricious standard and required a detailed articulation of the basis for the agency's decision, including its reasons for rejecting viable alternative courses of action, as in Citizens to Preserve Overton Park v. Volpe.

How does the application of the substantial evidence test affect the court's analysis of questions of fact?

− The court's characterization of an issue as a question of fact or question of law can affect the standard of review that the court employs, which in turn determines how deferential the court will be to the agency's position. In some cases, this can affect the ultimate outcome of the case.

What are the standards of review used by courts in evaluating agency decisions?

− The main standard of review in administrative law cases are (in order of importance) the "arbitrary and capricious" standard, the "substantial evidence" test, and "de novo review." − In terms of judicial deference to agency actions, these are also listed in order: "arbitrary and capricious" is the most deferential standard, and "de novo review" is the least deferential.

If courts have been deferring to agency interpretations of their own rules since the Seminole Rock case in 1945, why has "Auer deference" taken on so much significance recently?

− The rule has taken on more significance since 2007, as federal agencies under the last two Presidential administrations are filling more amicus briefs in other parties' suits urging courts to adopt the agency's interpretation of its rules. Auer itself was a case in which the agency (the Department of Labor) was not a party, but submitted an amicus brief at the Supreme Court's request—and the court adopted the DOL's position rather than the arguments of the parties in the case. Recent Presidents have turned to amicus briefs (filed by the DOJ or other agencies) as a way to implement their policy preferences through the courts. Agencies themselves file amicus briefs to avoid having inconsistent judicial interpretations of their regulations arising from cases where the agency could not advocate a position.

What determines the standard of review in an individual administrative law case?

− The standards of review for judges to use in different types of administrative law cases are given in APA § 706 (delineating when to apply arbitrary and capricious review, the substantial evidence test, and de novo review). In addition, the agency's enabling statute might mandate a particular standard of review for certain types of decisions by that agency. These non-APA statutory provisions might either provide for stricter scrutiny or less scrutiny than judges would apply under the APA. Normally, the APA provisions will apply; most enabling statutes do not create special standards of review besides those found in the APA.

A statute authorizes the Director of the Central Intelligence Agency to dismiss any CIA agent Director "deems" to be a "threat to national security" as an agent. Agent 99 admits privately to her superior that she is a devoted Communist and attends flag-burning rallies every year when she goes on vacation. When word of this ideological commitment reaches the ears of the Director, Agent 99 is fired from the CIA. Agent 99 has served the CIA faithfully for 25 years, never had a security breach, and always received glowing reviews from her superiors. Assume that there is a "no-review" statute that explicitly commits employment decisions to the Director's full discretion "as a matter of law." Agent 99 challenges her dismissal, saying it was based on rumors and hearsay, and she had no opportunity to explain herself. Her attorney asserts that the Director's actions was "arbitrary and capricious" because it was not supported by substantial evidence in the record. Will the court use the "arbitrary and capricious" standard of review, or the "substantial evidence" standard of review?

− This is a bit of a trick question. The court will apply neither standard, because the statute precludes the matter from judicial review, barring any unmentioned constitutional concerns. The "standards of review" established by the APA apply only if the court grants judicial review in the first place, which it would not do under these facts.

Aquaman is attending a company picnic at a waterfront resort area. Some his fellow employees fall into the water and Aquaman rescues them, but he himself drowns in the process. His family seeks compensation under a workers' compensation program, and the company insists that the death did not occur in the course of employment, but rather at a recreational event. The compensation agency, however, concludes that Aquaman's death was, in fact, in the course of employment, meaning his family could collect benefits from the company. When the company seeks judicial review, will this determination by the agency be considered a question of fact or a question of law?

− This is a close case, but the Supreme Court held that this determination was a question of fact in O'Leary v. Brown-Pacific Maxon. The Court then found that the determination was, in fact, supported by "substantial evidence" in the record. Commentators have observed that the determination of what constitutes "the course of employment" could easily be a question of law, or at least a mixture of fact and law. By characterizing it as a question of fact, the Supreme Court was able to uphold the agency's award of benefits to the victim's family while avoiding the thorny question of the proper legal definition of the "course of employment."

The Air Force Academy has dismissed a tenured faculty member, Professor Rad Icall, over a flag-burning incident, and provided the dismissed employee with a standard fair hearing where he had the opportunity to present exculpatory evidence. What standard of review will the court use to evaluate the case when Rad Icall seeks judicial review?

− This is a trick questions. It involves an informal agency hearing, but it is not formal, on-the-record adjudication. The court will use the arbitrary and capricious/abuse of discretion standard and require a detailed articulation of the basis for the agency's decision. If the agency had used formal adjudication (which it would do only if required by statute), the court would use the "substantial evidence" test.

What is the current objective standard a plaintiff must use to overcome qualified immunity?

− To overcome qualified immunity, the plaintiff must show that the defendant violated a clearly established constitutional right.

The discretionary-function exception is one of several exceptions to the FTCA. What type of liability does the exception exempt?

− Under the FTCA, there is no liability for the "exercise or performance or the failure to exercise or perform a discretionary function or duty." In Berkovitz, the Supreme Court explains that to determine whether the challenged action will be considered a discretionary function the court must look at whether the action was one of choice on the part of the government official. The Court further states that a government official's conduct cannot be considered discretionary unless it involves an element of choice or judgment. So, if an administrator committed a negligent or wrongful act or omission while performing a discretionary function, she cannot be held liable under the FTCA.

How does a court decide whether to apply the standards of review specified in APA §706, or the standard of review in the agency's enabling statute?

− Unless the agency's statute specifies otherwise, the court will apply the standard of review delineated in APA §706. This occurs most of the time, because most enabling statutes do not provide a different standard of review than the APA. If, however, the relevant statute DOES require a different standard of review, the court will follow that instead of the APA.

Are agency interpretive rules, general announcements of policy, or rules of agency organization, practice and procedure of controlling in court?

− While not controlling on the courts, interpretive rules, policies, and internal rules constitute a body of experienced and informed judgment to which courts and litigants may properly resort guidance. Their weight is dependent in their consideration, the validity of their reasoning, their consistency with earlier and later pronouncements, and all those factors that give them power to persuade, though lacking power to control. − Where Chevron does NOT apply, courts apply Skidmore balancing factors instead.

Can a municipality be held liable for inadequate training of its employees? If so, what must the plaintiff prove?

− YES, a municipality may be liable for constitutional violations that were caused by inadequate training of its employees. A person raising this claim, however, must prove that the training was so inadequate that the municipality's failure to train exhibited deliberate indifference to the constitutional rights violated.

Can state and local government officials be liable in federal court for damages and injunctive relief for violations of the federal Constitution and laws?

− YES, generally under 42 U.S.C. § 1983, state and local government officials can be sued for federal constitutional violations.

Does it matter which standard the court uses in a case where the agency has abruptly changed its own interpretation of an ambiguous term in its enabling statute?

− YES, it matters. When an administrative action is found to be arbitrary and capricious, the court remands it to the agency for further consideration, giving it an opportunity to articulate a more detailed rationale for the same decision. In contrast, when an agency loses under Chevron analysis, the court vacates the rule and finds that the agency either lacks jurisdiction under the statute, or is using an impermissible interpretation of the enabling statute's verbiage.

Can "unfair surprise" make Auer deference inapplicable to an agency interpretation?

− YES, unexpected interpretations of agency regulations can impose potentially massive liability on parties for conduct that occurred well before the interpretation announcement. An industry has little reason to suspect that its long-standing practices that have never received agency ire will suddenly transgress regulations. The statute and regulations need to provide clear notice. Auer deference is not applicable when there is unfair surprise. When unfair surprise renders Auer deference inapplicable, the interpretation should receive the deference proportional to its power to persuade.

Don Draper brought an action against Conglomerate Bank, issuer of Draper's credit card, alleging the Bank violated federal regulations by raising his interest rate due to a late payment, and then applying the higher rate retroactively. The relevant statute requires advance notice of rate increases; but the Bank says that the cardholder agreement warns of rate increases as a possible penalty. The Federal Reserve Board filed an amicus brief in the case siding with the Bank, saying that the Fed interprets its own banking regulations to allow such a retroactive rate increase. Does the Fed's view of its regulation merit Auer deference?

− YES. Auer requires judicial deference to the interpretation in the agency amicus brief even where the agency is not a party to the litigation. In Chase Bank, the Court deferred to the implementing agency's interpretation of its own regulation, even though the regulation was ambiguous and the parties' interpretations were reasonable. The Board's permissible interpretations was "in no sense a post hoc rationalization advanced... to defend past agency action against attach," and there was "no reason to suspect that the interpretation [did] no reflect the agency's fair and considered judgment on the matter in question.

Are federal government officials immune from liability for tortious conduct if the acts occurred while the official was performing official duties?

− YES. For tort liability, courts have generally recognized immunity for federal government employees acting within the scope of their duties. The Supreme Court has explained that immunity for government officials is important because it allows officials to exercise their discretion free from the fear of being held liable for damages.

The Federal Aviation Administration decides to regulate the use of surveillance drones (unmanned aircraft) by state and local law enforcement entities. One municipality has already invested heavily in a fleet of drones to replace most of its local police force, and the city challenges the FAA regulations, claiming the FAA lacks jurisdiction over municipal drone usage. The statute is arguably unclear, but the FAA insists it has jurisdiction. Should the court give Chevron deference to the agency and its interpretation of its own jurisdiction, if the statute is ambiguous?

− YES. In City of Arlington v. FCC, the Supreme Court held that Chevron deference applies to jurisdictional questions—that is, the agency's interpretation of its own jurisdiction in cases where the statute is ambiguous. This had been an unsettled question of law for several decades, though the majority opinion in City of Arlington pretends that the Court's decisions have been consistent on this point all along.

Audrey and Jeff Bingham had started an in vitro fertilization program when Jeff died suddenly in an accident. Audrey decides to go forward with the fertilization using Jeff's genetic material, and successfully becomes pregnant. After the child's birth, Audrey filed a claim for Social Security survivor benefits for the baby, but the Social Security Administration denied the claim based on her state's intestacy law, which excludes posthumously conceived children as heirs. The federal statute governing survivor benefits is very ambiguous on this point, so the SSA filled this statutory gap by adopting a policy of following state law for such children. Is the SSA's determination entitled to Chevron deference?

− YES. The SSA's interpretation of the Social Security Act governing determination of the status of posthumously conceived children was entitled to Chevron deference. The SSA's interpretation of the relevant provisions, adhered to without deviation for many decades, was reasonable, and was therefore entitled to deference. Reliance on state intestacy law served the driving objective of the government's interests in reserving benefits for "children" who lost a parent's support.

When it rains, water runs off two logging roads used by Dexter Logging Company into channels that discharge into nearby streams. An activist group, Trees Over Profits (TOP), sued Dexter under the Clean Water Act's citizen-suit provision. TOP claimed the channeled runoff from logging roads violated the CWA, as Dexter had no permits. The EPA stated in an amicus brief that it has consistently construed its regulations to exempt road runoff from permit requirements, and this seems like a reasonable interpretation of the relevant permit regulations. Does the EPA's view on the regulation require Auer deference?

− YES. The agency's current view of its regulation was unchanged from prior practice, and was not a post hoc justification adopted in response to litigation, so Auer deference applied to the agency's interpretation. When an agency interprets its own regulation, the Court generally defers to it "unless that interpretation is 'plainly erroneous or inconsistent with the regulation.'"

Are there agency interpretations of law to which Chevron does NOT apply?

− YES. There are 3 general categories where Chevron does NOT apply. The rule does not apply: 1. To certain less formal agency interpretations (like "opinion letters" rather than promulgated regulations); 2. To interpretations of statutes that are not the agency's true domain, such as agency interpretations of the APA, as opposed to its own enabling statute; and 3. To the agency's interpretations of its own internal regulations. − The cases are somewhat unpredictable in this area. This questions of whether Chevron applies in the first place is sometimes called "Chevron Step 0," that is, a third (antecedent) step in the court's analysis.

Do courts give Chevron deference to agencies' interpretation of their own jurisdiction?

− Yes, if the statute is ambiguous about the boundaries of an agency's jurisdiction, courts should defer to the agency's interpretation of its own jurisdiction.

The Department of Energy's (DOE) Office of Hearings and Appeals holds trial-like proceedings to decide the most equitable rule for setting rates and fees for petroleum suppliers. Big Tex, an oilman from Southwest, challenges the new rule in court. Will the court use the "substantial evidence" test when reviewing the DOE's decision?

− Yes, probably. The court will use the "substantial evidence" test of APA Section 706. APA section 706(2)(D) says that the substantial evidence test applies to agency decisions "subject to sections 556 and 557" of the APA—that includes the formal rulemaking described here. The only uncertainty here is that we are not sure if the DOE held "trial-like hearings" because it was required to do so by statute, or because the official conducting the informal rulemaking public hearings had a stylistic preference for formality and decorum. The court will probably make its decision based on what the agency was required to do, not what it actually did. Note, however, that most agencies will not make rulemaking any more formal than necessary.

Does a court's prior judicial construction of a statute trump an agency construction otherwise entitled to Chevron deference?

− Yes, the Court's prior judicial construction does trump agency construction, but only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.