Administrative Law (219)

Two kinds of exceptions to general availability of judicial review of agency actions from § 701(a)

(1) preclusion (express/implied)—legislative intent to deny cause of action, determined by statutory interpretation. Most obvious express is language in statute à la "no court shall review this..." o Re: Overton Park strong presumption of the availability of cause of action - stringent test for finding statute precludes: need "clear and convincing evidence" o High bar, and 'implied' even higher—courts construe exceptions to review very narrowly (2) agency action committed to agency discretion o "no law to apply" o discretion besides "no law to apply"

United States v. Mead Corporation (2001)

(add of Step Zero to Chevron) Takeaway: 1a. court not required to defer to fed agency's interp of questions of fact 1b. low deference given to agency interp that lacks force of law but give some respect to their interp & consider the following factors: 1. thoroughness evident in its consideration 2. validity of its reasoning 3. consistency with earlier and later pronouncements Facts: Under the Fair Labor Standards Act (FLSA), government employers are required to offer compensatory time (comp time) to employees that work overtime. The FLSA states that employers must reasonably accommodate employees' requests to use their accrued comp time. The FLSA also outlines circumstances under which the employers have to compensate employees for accrued comp time. Harris County (defendant) became concerned that it would not be able to afford to compensate all of its employees for their accrued comp time. Rule of law: STEP ONE (ZERO): did congress delegate authority to the agency generally to make rules carrying the force of law & was the agency interpretation claiming deference promulgated in exercise of that authority? (2) yes--go to step one of chevron (3) no--apply skidmore (4) the clearer the grant of congressional authority the more likely to get to chevron & force of law

United States v. Mendoza (1984)

* COLLATERAL ESTOPPEL OF AGENCIES AND THE LIMITS THEREOF. * a.Nonmutual offensive collateral estoppel DOES NOT APPLY AGAINST THE GOVERNMENT. FACTS: a.Mendoza (plaintiff) was a Filipino national who petitioned the United States for naturalization in 1978 based on a World War II statute giving foreigners who served for the U.S. during the War the right to receive citizenship. b.The statute was repealed after the War and only those who applied prior to the end of 1946 were entitled to naturalization under the statute. c. Between October 1945 and August 1946, however, the U.S. immigration office in the Philippines was closed, making it difficult for Filipinos to take advantage. HISTORY: a.In a 1975 lawsuit, 68 Filipinos were granted naturalization despite not applying until after 1946. ISSUE: Does nonmutual offensive collateral estoppel apply against the government? HOLDING: NO RULE OF LAW: a.Nonmutual offensive collateral estoppel DOES NOT APPLY AGAINST THE GOVERNMENT.

Kent v. Dulles (1958)

**CLEAR STATEMENT DOCTRINE** Limitation on Chevron stage 2 high deference. Precedes Chevron. Takeaway: DO NOT GIVE CHEVRON DEFERENCE IF THERE IS A SIGNIFICANT LIBERTY INTEREST AT STAKE!!! FACTS: * Congress enacted a statute vaguely giving the Secretary of State authority to issue passports according to whatever rules he cares to promulgate. * Kent never committed any crimes, but his application for a passport was denied because he was a known communist. *He challenges the agency's authority to deny a passport on those grounds. HOLDING: **The SC reversed the judgment, which had affirmed the denial of passports to petitioners. Held that the Secretary of State only had authority to withhold passports for reasons relating to citizenship or allegiance or to criminal or unlawful conduct. RULE OF LAW: ♣ Clear statement requirement - in an area that touches on basic liberties (such as freedom of travel), the court will not lightly assume that congress has delegated authority to an agency to restrict that liberty.

(1) whether the agency acted within the scope of its authority; [STEP 1 OF OVERTON PARK]

**Look to section 701 of APA to decide if there is judicial review available. They must have standing. The presumption is for every final determination of the agency, the aggrieved party can get judicial review*** i.Types of government entities where there is NO JUDICIAL REVIEW [APA 701]: 1. WHERE CONGRESS/STATUTE CLEARLY PRECLUDES JUDICIAL REVIEW; ..... must have CLEAR AND CONVINCING evidence of an intent to do so; bad constitutionally 2. LOOK FOR WORDS LIKE "COMMITTED" TO AGENCY DISCRETION... ..... "When "committed" is omitted, there is broader discretion. 3. Where a statute has committed decision to agency discretion;.... .... only when a statute is written so broadly there is no law to apply (ex. presidential pardon, no way to litigate)

Hard Look Doctrine

*HLD involves § 553 (rulemaking) and § 706 (arbitrary and capricious) of APA. **553 (RULEMAKING) only applies to informal rulemaking. **706 (ARBITRARY ADN CAPRICIOUS) is a broader way of applying HLD. STEPS: HLD applied to ensure that the agency really took the notice and comment process seriously. AGENCY MUST.. ♣ Agency developed an evidentiary record ♣ Record reflects the factual and anylitical basis for their decisions ♣ Record explains reasoning in detail ♣ Agency gives adequate consideration to the evidence -------------- Affirmative Duty: To survive the HLD, the agency must lay out in adequate detail the reasons for its actions and discuss the alternatives. Must explain logic and show work.

So what would NOT get Chevron deference? Stuff that's short of that - like opinion letters, which do not have the binding force of law. What else? (From Christian County 2000)

*Interpretive rules *Policy statements *Agency manuals *Opinion letters

Bowen v. Georgetown University Hospital (1988)

*RETROACTIVITY IS DISFAVORED.* TAKEAWAY: Under administrative law, a federal agency may not engage in rulemaking that has retroactive effect. FACTS: The Medicare Act (Act), authorized Secretary of HHS Bowen (Secretary) (defendant) to set limits on Medicare reimbursements for expenses that healthcare providers incurred while treating patients in the Medicare program. In 1981, the Secretary introduced a cost-limit schedule that changed the rule for calculating the wage index for hospital employees. In 1984, the Secretary proposed the same wage-index rule again, which would apply retroactively beginning from 1981. HISTORY: a.Georgetown University Hospital and six other hospitals (plaintiffs) challenged the rule as invalid under the Act and the Administrative Procedure Act (APA). ISSUE: a.Under administrative law, may a federal agency engage in rulemaking that has retroactive effect? HOLDING: NO RULE OF LAW: a.Under administrative law, a federal agency may not engage in rulemaking that has retroactive effect. ^^^.Thus, agencies may promulgate retroactive rules only if congressional intent to permit retroactive rulemaking is clear from the statutory language authorizing those rules.

Congressional Powers/Non-Delegation Doctrine: Modern Cases and the Death of the NDD: Cases

- Industrial Union Dept. v. Amer. Petroleum Inst. (Benzene case) - Amalg. Meat Cutters v. Connally

Mead and Barnhart factors

1-6 from Mead, 7-11 from Barnart • (1) Statutory language/structure Face of the statute (not super helpful, except Gonzales) o (note: Gonzales looks at relative expertise of administering agencies, federalism canon to find no Chevron for AG) • (2) Precedential status? (if yes, counsels in favor of C deference) o Here: letters aren't binding, not precedential (say rely on at your own risk) • (3) Subject to override by another agency actor? • (4) Elaborateness of procedure • (5) How many of this type of decision made? o Tons here; more counsels against deference • (6) How decentralized? (more centralized --> more in favor of C def) • (7) Interstitial nature of legal question • (8) Expertise of the agency (more --> more deference) • (9) Importance of question to the administration of the statute (Court says more important, more deference—not clear it should cut this way) • (10) Complexity of administration • (11) Careful consideration over long period of time

Clear Statement Doctrine (CSD): Came from Kent v. Dulles (1958)

1. Idea is that Congress must provide a "clear statement" for courts to allow certain results to be reached. 2. If there are 2 ways of interpreting statute a. one way raises the possibility that statute is unconst. b.2nd way of interpreting statute will not raise any const. issues CONCLUSION: The ct. will choose the interpretation that is less controversial.

Breakdown of Private v. Public facts (SEEN from Crowell 1932)

1. Public v Private rights (two types of facts) a.PUBLIC RIGHTS = may be assigned to adm. agency b/c historically public rights disputes could have been decided within the govt w/o any adjudication and public rights did not exist at common law b/c of sovereign immunity - so they can now be assigned to adm agencies and not violate Article III. i.Crowell first case in which SCT approved the adjudication of private rights dispute by adm agency. (RM) 1.STRINGENT REQUIREMENTS from Crowell = de novo review for questions of law and questions of jurisdictional fact (RM) 2.LENIENT REQUIREMENTS= Court allowed deferential review of agency's factual determinations b/c the ct viewed the agency's function similar to that of masters and juries who often aid Art III judges; and it might actually preserve judicial power by not overwhelming cts with controversies, while maintaining judicial control thru de novo review (RM) Two exceptions to agencies finding facts: 1.Matters of jurisdiction fact 2.Matters of constitutional fact

ii. Note- Arbitrary and capricious review [PART OF step 2 of OVERTON 1971]

1. There must be a REASONABLE POLICY RATIONALE for the agency's decision 2. Review should be searching and careful—this is the HARD LOOK DOCTRINE. a. 3 ways of applying HARD LOOK REVIEW —if it's more demanding, it's the hard look doctrine. i.ACA §706—Interpreting Arbitrary and capricious—can make it a high standard for what is arbitrary. ii. ACA§ 553—Arbitrary and capricious—have to put notice in the federal record. Could apply demanding standard to this requirement. Can interpret this rigorously. iii.§553—concise and general statement might be construed as being TOO concise or general.

skidmore test (... applies when the mead test fails)

1. low deference given to agency but give some respect to their interp & consider the following factors: a. thoroughness evident in its consideration b. validity of its reasoning c. consistency with earlier and later pronouncements *apply when interp fails the Mead test

Two exceptions to agencies finding facts: (FROM CROWELL... PRIVATE V. PUBLIC RIGHTS)

1.Matters of jurisdiction fact a.Don't want to allow A thru even factual findings to be the determination b/c it is in their jurisdiction (they could interpret their own mandate wrongly - gone power mad - and we don't want this - so we cannot allow them to be the final say to tell them how broad their scope and jurisdiction is - need to reel them in ) 2. Matters of constitutional fact a.Don't want to allow govt A bureaucrats to have the final say over your const rights - which are important b. Have to have judicial determination by fed ct for const. rights - according to this case those determinations mean nothing if you take them to fed ct- they won't just give very much deference- they will completely re-determine the facts on their own new record (de novo)

CONCURRENCES IN... Ethyl Corporation v. Environmental Protection Agency (1976)

2 heavy weight judges - get into a fist fight over how court should review highly technical decision. A. PROCEDURAL HARD LOOK DOCTRINE: Judge B says to focus on making the agency hop through the correct procedural hoops. Can apply HLD rigorously if you wish but apply it in a way that demands the agency goes through the correct procedural hoops. •THIS IS MORE §553 STYLE B. Specialized Courts for Substantive Hard Look Review: Judge L suggests that courts must acquire the technical expertise to decide these cases. Cong. wants ct. to do something substantively not just force the agency to do something procedurally. **THIS IS MORE UNDER §706 STYLE **Wright says this is impossible!

Arizona Grocery v. Atchison, Topeka & Santa Fe Rwy (1932)

AN AGENCY MUST FOLLOW ITS OWN RULES UNLESS AND UNTIL A DEPARTURE THEREFROM IS SUFFICIENTLY EXPLAINED FACTS: The Interstate Commerce Commission is tasked with setting a "reasonable rate" for freight. The ICC says that there is no way to determine what a reasonable rate is until after it is charged, so they make a guess and demand that the railways pay reparations to their clients if it turns out the rate was set too high. But if it turns out the rate was set too low, the railways have to eat the cost. HELD: o - an agency is bound by its rules until it changes them and satisfactorily explains the change ♣ parties have a right to rely on agency policy until it is changed for a good reason

informal rule making

APA § 553 requires 1) notice 2) opportunity to comment 3) statement of reasons 4) publication (rule published in Federal Register 30 days before effective.)

Congressional Involvement in Appointment and Removal of Executive Officials.... .... is governed by WHAT???

Appointment clause..... Art. II, Sect. 2, Clause 2. a. Congress MAY NOT appoint administrative officials. May appoint those who act merely in aid of legislation, such as officers who gather information or do research to help Congress decide whether and how to legislate. Officials appointed by Congress may NOT exercise authority under the laws of the U.S., such as prosecutorial or rulemaking. b. Congress has power over budget and legislation. This may influence or force the President to appoint those she may not wish to. POLITICS c. Congress MAY NOT participate in the removal of administrative officials. d. Other than removal via impeachment and conviction, the Constitution contains no provision regarding the removal of officials. Court has held that Congress may not remove except by impeachment in House and conviction in Senate.

Chevron Deference

BIG IDEA: Ambiguous statutory terms should be interpreted by agencies rather than courts, so Court must give effect to a reasonable agency interpretation of a statute unless that interpretation is inconsistent with a clearly expressed congressional intent. Chevron introduced the era of STRONG deference: A court MUST (not may) defer to the agency's interpretation of law. (1) Ask whether the statute is clear (or, if Congress has directly decided the precise question at issue)? (2) Ask whether, if the statute is ambiguous, the agency interpretation is "permissible" or "reasonable." (If so, the agency interpretation is to be upheld.)? BREAKDOWN of the 2 STAGES: Starting with a separation of powers focus (legislature does the legislating).... 1. FIRST STEP: TO LOOK FOR SOME SORT OF UNAMBIGUOUS, SPECIFIC INTENT OF CONGRESS ON THE PARTICULAR QUESTION AT ISSUE. if yes?case is over *If you're looking for Stage 1 specific intent, you do NOT CONFINE YOURSELF TO LOOKING AT THE FACE OF THE STATUTE. 2. SECOND STEP: the DEFERENTIAL STAGE. o2 kinds of gaps that Congress might leave for an agency (whatever's left when congress hasn't left specific instructions): *Explicitly-left gaps *Implicitly-left gaps o If gap is EXPLICITLY left, Court applies more deferential review for arbitrariness. o If gap is IMPLICITY left, Court applies less deferential review for reasonableness.

Myers v United States (1926)

Broad dicta: when an officer is appointed by the President with the consent of the Senate, removal power belongs to the President alone FACTS: 1917, the POTUS appointed Myers as a postmaster of the first class at Portland for a 4-year term. This appointment was made with the advice & consent of the Senate. In 1920, Myers was removed from his position by order of the POTUS.. HISTORY: a.Myers thereafter brought suit in the Court of Claims to recover back pay in the amount of $8,838.71. The Court of Claims found that Myers' removal without the advice and consent of the Senate was proper. Myers appealed. ISSUE: Does the Constitution grant the president the sole power to remove executive officers? Holding: YES RULE OF LAW: a.The power to remove subordinates is inherent in the constitutional power of the President—SENATE CAN NOT RESERVE REMOVAL FOR THEMSELVES

National Petroleum Refiners (D.C. Cir. 1973)

Broad presumption of RM power; RM prudentially good Facts: FTC makes rule that it's always unfair to not post octane ratings on gas pumps (if you have a regular car, filling with higher octane gas doesn't do anything). Up through 1962 FTC operated only by ADJ - industry argues that when 6(g) authorizes RM, that's only referring to FTC's internal procedural rules and not rules that govern private conduct - FTC has itself said this repeatedly. HISTORY: a. 2 trade associations and 34 gasoline refining companies (plaintiffs) brought suit to challenge the FTC's authority to make substantive rules of business conduct. ISSUE: a. Does a federal agency have authority to rulemake when its authorizing statute mentions only its authority to enforce by adjudication? HOLDING: YES RULE OF LAW: a. A federal agency HAW AUTHORITY TO RULE MAKE even if its authorizing statute mentions only its authority to enforce by adjudication.

Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2010)

Can't have 2 layers of "for-cause insulation";..... .....violates separation of powers in Constitution; members of PCAOB are inferior officers FACTS: 1.In 2002, Congress enacted the Sarbanes Act. Among other provisions, it provided for regulating of the accounting industry by a new Public Company Accounting Oversight Board (Board) (defendant). 2.The Board is under the oversight of the SEC, but the SEC cannot remove Board members except for good cause. 3. SEC Commissioners determine whether there is good cause to remove a Board member. SEC Commissioners can't be removed by the POTUS except for "inefficiency, neglect of duty, or malfeasance in office." 4.The Board began an investigation of Beckstead and Watts, LLP, a Nevada accounting firm, after it found deficiencies in its accounting procedures in an inspection. ISSUE: 1.May a POTUS be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer enforces the laws of the United States? Holding: No. RULE OF LAW: 1.A President MAY NOT BE RESTRICTED in his ability to remove a principal officer... ..... who is in turn RESTRICTED IN HIS ABILITY to remove an inferior officer, .....BECAUSE such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed. APPLICATION: 1.Because the Board tenure provisions are severable from the rest of the Sarbanes-Oxley Act, this court need not strike down the entire act but simply these provisions. Affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion.

Boyce v. US (1952)

Clarity, Fair notice, and the value of the agency rules in limiting agency discretion and possible corruption versus sensitive, individualized, equitable treatment TAKEAWAY: a.A regulation, the violation of which results in criminal penalties, is sufficiently definite under the Constitution if it affords a reasonable degree of certainty as to what constitutes the prohibited conduct. FACTS: a. The Interstate Commerce Commission (ICC) promulgated a regulation requiring drivers transporting certain hazardous materials to avoid driving in congested areas. b. The requirement applied "so far as practicable, and, where feasible, by prearrangement of routes." i. The statute directing the ICC to promulgate the regulation provided that any knowing violation of the regulation would subject the violator to criminal penalties. HISTORY: Boyce Motor Lines (Boyce) (defendant) was indicted for violating the regulation. ISSUE: Is a regulation, the violation of which results in criminal penalties, sufficiently definite under the Constitution if it affords a reasonable degree of certainty as to what constitutes the prohibited conduct?

MCI v. ATT (1994)

DICTIONARY CASE TOPIC: EXCEPTION TO CHEVRON- Too far extension TAKEAWAY: Stage 1 Chev. case - Lack of def. to agency FACTS: a. S.203(a) of Title 47 of the US Code requires communications common carriers to file tariffs with the (FCC). Section 203(b) authorizes the FCC to "modify" any requirement of § 203. b.Beginning in 1979, the FCC decided to make tariff filing optional (called permissive detariffing) for all nondominant long-distance carriers. The rationale for this decision was to reduce costs on new entrants to the long-distance carrier market. The permissive detariffing applied to nondominant carriers, resellers and specialized common carriers, such as MCI Telecommunications Corp. (MCI) (defendant). HISTORY: a.AT&T, the dominant carrier, filed a complaint with the FCC challenging MCI's failure to file tariffs. The FCC dismissed AT&T's complaint, finding that MCI was in compliance with the FCC's rule on permissive detariffing. c.The FCC then released a report and order finding that the permissive detariffing policy was within its authority under the Communications Act. ISSUE: a.Is an agency's interpretation of a statute entitled to deference when it uses a meaning that contradicts the meaning used in most dictionaries? HOLDING: NO RULE OF LAW: An agency's interpretation of a statute IS NOT ENTITLED to deference when it goes beyond the meaning that the statute can bear.

Distinction of Agents: [From Humphrey's Executor (1935) & WEINER CASE]

Distinction of Agents: 1.(1) high-level executive officials who are subject to removal by the president without the Senate's advice and consent, and 2.(2) appointed executive officials who carry out their duties independent of presidential influence and can be removed from their positions only with the advice and consent of the Senate.

Morrison v. Olson (1988)

FACTS: 1. Congress passed the Ethics in Government Act of 1978 (the Act). 2. Title VI of the Act permitted a court called the Special Division to appoint an independent counsel to investigate and prosecute certain high-ranking government officials for violations of federal criminal laws upon request by the Attorney General. 3. The independent counsel could terminate the position when the investigation and/or prosecution was complete. Additionally, the Act gave the Attorney General sole removal power of an independent counsel "for good cause." ISSUE: 1. Does a law vesting the judiciary with the power to appoint an INFERIOR EXECUTIVE OFFICER (an independent counsel) and prohibiting the Attorney General from removing the officer without good cause VIOLATE SEPARATION-OF-POWERS? HOLDING: NO RULE OF LAW: The IC is an inferior officer, not a principal officer, so vesting appointment power in the judiciary is fine. In coming to this determination, the Court focuses on.... (1) the investigative and prosecutorial (not policymaking) functions of ICs, (2) the limited scope of the IC's jurisdiction, (3) the short duration of the office, and (4) the fact that the IC can be removed by the AG. Note: On the issue of appointments, this case was superseded by Edmond v. United States (1997). ISSUE: Are the restrictions on the removal of the IC constitutional? o Answer: Yes. o Reasoning: The Court rejects the quasi-judicial/quasi-legislative v. purely executive distinction from Humphrey's Executor in favor of a more functionalist test that focuses on whether the constraint interferes with the exercise of the President's executive power and his "Take Care" duty. Under this functionalist view, limits on the removability of the IC are constitutional because the IC just is not that powerful, so insulating the IC from removal is not an unconstitutional limit on the President's power. ♣ Factors Considered: Include: (1) the investigative and prosecutorial (not policymaking) functions of ICs, (2) the limited scope of the IC's jurisdiction, (3) the short duration of the office, and (4) the AG's influence over the selection & mission of the IC (since the AG is ultimately accountable to the POTUS)

Amalgamated Meat Cutters v. Connally (1971)

FACTS: 1.Congress passed a law giving the President the authority to set price, wage and rent controls. 2.The president issued an executive order pursuant to the law establishing a temporary freeze on price and wage increases for the meat packing industry ISSUE: Can Congress grant permanent legislative authority to the President? HOLDING: NO RULE OF LAW: 1.Congress CANNOT grant permanent legislative authority to the President. HOWEVER, IT CAN GRANT TEMPORARY AUTHORITY. In doing so, Congress must provide an.... ....Intelligible Guiding Principle

Mayo Foundation for Medical Education and Research v. United States (2011)

FACTS: Generally, both an employer and an employee pay social security taxes on wages earned by the employee. Wages earned by a student, however, are exempt from social security taxes pursuant to Internal Revenue Code. Students are able to claim this exemption if they work for their schools "as an incident to" their studies. The Social Security Administration (SSA) always interpreted Section 3121(b)(10) to exclude medical residents from claiming the exemption. ISSUE: Is an administrative regulation entitled to deference by the courts where Congress has expressly authorized an agency to promulgate regulations and the regulation at issue has been promulgated pursuant to that authority? HOLDING: YES RULE OF LAW: *This Court has held that Chevron deference is the appropriate standard where Congress has delegated authority to an agency to promulgate regulations & the regulation at issue has been enacted pursuant to that authority.

American Trucking v. EPA (D.C. Circ. 1999)

FACTS: 1. Clean Air Act delegated authority to the EPA (defendant) to promulgate implementing regulations setting national ambient air quality standards (NAAQS) for air pollutants. For each pollutant, the EPA set a primary standard to protect public health "with an adequate margin of safety," and a 2nd standard to protect the public welfare. 2. In 1997, the EPA issued rules revising the NAAQS for particulate matter (PM) and ozone. The rules indicated that any amount of PM or ozone posed a possibility of some health risk. 3. The rules revised the ozone NAAQS from 0.09 to 0.08, but did not explain how the new level was set or how it worked. ISSUE: Under administrative law, will federal courts automatically strike down an AMBIGUOUS statute where an agency's implementing regulations fail to articulate clear standards to guide the exercise of enforcement authority? HOLDING: NO RULE OF LAW: 1.Courts will not automatically strike down an ambiguous statute WHERE AN AGENCY'S IMPLEMENTING REGULATIONS FAIL TO ARTICULATE CLEAR STANDARDS THAT LIMIT THE AGENCY'S DISCRETION IN APPLYING THE LAW. 2.If ambiguous statutory provisions violate the nondelegation doctrine by delegating authority to an agency.... THE AGENCY'S IMPLEMENTING REGULATIONS MUST ARTICULATE CLEAR STANDARDS THAT LIMIT THE AGENCY'S EXERCISE OF ITS DELEGATED AUTHORITY... HOWEVER .....Where both the statutory language and the implementing regulations are impermissibly vague, courts will not automatically invalidate the ambiguous statute. .....Rather, courts will remand the case to permit the responsible agency to apply its expertise to the task of finding an interpretation that properly circumscribes the agency's enforcement authority.

FCC v. Fox Television Stations, Inc. (2009)

FACTS: a. Congress granted the FCC (plaintiff) power to revoke a television broadcaster's license for violating FCC broadcast regulations. b. One regulation prohibited indecent broadcasts, defined as including the use of offensive terms relating to bodily functions. The FCC's original enforcement policy distinguished between the repetitive, literal use of an offensive term to describe a bodily function and the spontaneous, nonliteral use of the term to convey emotion. The policy treated the nonliteral use more leniently. ISSUE: a. Does the Administrative Procedure Act generally require an agency to show that its new policy is preferable to the existing policy it replaces? RULE OF LAW: a.The Administrative Procedure Act generally does not require an agency to show that its new policy is preferable to the existing policy it replaces. MULTIPLE DISSENTS ON THIS CASE

Motor Vehicle Manufacturers' Association v. State Farm Mutual Insurance Co. (1983)

FACTS: a. The National Highway Traffic Safety Administration (NHTSA) issued Modified Standard 208, which mandated the phasing in one of two types of passive restraints in automobiles: airbags and passive seatbelts. b. Prior to the deadline for complying with the standard, and after the election of a new President of a different political party, the Secretary of Transportation reopened the rulemaking. Two months after reopening the rulemaking, the NHTSA ordered a one-year delay in the first application of the standard and proposed the possible rescission of the entire standard. c. After receiving written comments and holding public hearings, the NHTSA issued a final rule rescinding Modified Standard 208's passive restraint requirement. In rescinding this requirement, the NHTSA stated that it could no longer find—as it had prior to the initial proposal of the rule—that such a requirement would produce significant safety benefits. ISSUE: a. Is an agency's rescission of a regulation arbitrary and capricious when the agency fails to offer a rational connection between the facts and the decision to rescind? RULE OF LAW: a.When an agency rescinds a regulation, it must explain the evidence underlying its decision, and offer a rational connection between the facts found and the choice made. i.When an agency rescinds or modifies an occupant protection standard, its action may be set aside if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. b. For the rescission of a regulation to be lawful... ::: i.The agency must explain the evidence underlying its decision, and offer a rational connection between the facts found and the choice made.

U.S. v. Nova Scotia Food Prods. (1977)

FACTS: a.The FDA adopted regulations to address several cases of botulism that had been traced to consumption of fish taken from inland waters. i.These regulations imposed time-temperature-salinity (T-T-S) requirements on hot-process smoked fish and were adopted pursuant to informal notice-and-comment procedures. ii. The FDA did not disclose the scientific data that was relied on in establishing this standard. The FDA received comments from the fishing industry and the Bureau of Commercial Fisheries of the Department of the Interior objecting to the application of T-T-S requirements to all species of fish. ISSUE: Is an agency promulgating a rule through informal notice-and-comment rulemaking required to provide a concise general statement that identifies the major issues of policy considered by the agency and the rationale for reacting to those issues? HOLDING: YES RULE OF LAW: a.An agency promulgating a rule through informal notice-and-comment rulemaking is required to provide a concise general statement that identifies the major issues of policy considered by the agency and the rationale for reacting to those issues. i.Aka... substantive section 706 &procedural section 553 hard look in informal adjudication & rulemaking) b.Administrative Procedure Act, 5 U.S.C. § 553 ^^^^^Requires an agency to provide a concise general statement. c. Adequate comment ^^^^In order to facilitate adequate comment on a proposed rule, agencies are required to provide the scientific data relied on to formulate the rule.

Hornsby v. Allen

FACTS: oHornsby wants to provide citizens of the land opportunity for a liquor permit. Through admin law we control the location and quality of these liquor stores and licenses. Hornsby says it violates her due process. RULE OF LAW: ***You can't yell due process violation—you have to show gov't deprived you of a protected liberty or property interest created by a source such as state law.

Gonzales v. Oregon (2006)

FACTS: •The State of Oregon (the state) (plaintiff) legalized assisted suicide through a ballot measure in 1994. •Under this law, physicians who dispensed or provided a lethal dose of drugs to terminally ill patients under specific safeguards were immune from civil or criminal liability. •These drugs were federally regulated under the Controlled Substances Act (CSA), HISTORY: **Alberto Gonzales (defendant), the attorney general of the United States, issued an interpretive rule providing that assisted suicide was not a legitimate medical practice and that dispensing or prescribing drugs for that purpose was prohibited by the CSA. ISSUE: If multiple agencies are authorized to promulgate rules and enforce statutory provisions, will the agency with the most familiarity and policymaking expertise on a particular matter be presumed to be the agency that has been delegated interpretive power for that issue? HOLDING: YES RULE OF LAW: **If multiple agencies are authorized to promulgate rules and enforce statutory provisions.... ....the agency with the most familiarity and policymaking expertise on a particular matter will be presumed to be the agency that has been delegated interpretive power for that issue.

Bowsher v. Synar (1986)

FACTS: Congress passes statute saying fed agency spending would automatically be reduced if fed deficit projected to rise above a certain level. Congress can by joint resolution fire the comptroller general who's responsible for this. HOLDING: i.Synar (plaintiff), a Congressman, challenged the constitutionality of the Act in federal district court against Bowsher (defendant), the Comptroller General, on the ground that the Act violated the separation of powers doctrine. ISSUE: Whether the assignment by Congress of certain executive functions to the Comptroller General, when Congress still retained removal power over this official, VIOLATED THE "DOCTRINE OF SEPARATION OF POWERS"? HOLDING: YES RULE OF LAW: Article II of Constitution- The Executive: the Constitution permits the President to appoint officers with the advice and consent of the Senate, but then explicitly states that Congress shall only be involved in removal of these officers through the impeachment process. APPLICATION: 1. Since Congress has retained removal authority over the Comptroller General, this official may not be entrusted with executive functions under the doctrine of separation of powers. i.By placing this responsibility in an official that is subject to removal only by itself, Congress HAS UNCONSTITUTIONALLY RETAINED CONTROL OVER EXECUTIVE FUNCTIONS.

Microcomputer v. Riley (1998)

FACTS: Agency is trying to decide whether to apply new rule retroactively - decision based on new policy and research. RULE OF LAW: ^^^^Applying a rule retroactively does not require agency expertise - anyone can do this ^^^ARIZONA GROCERY PRINCIPLE:--> Agency allowed to change mind about rule but must give satisfactory justification. EXCEPTION TO CHEVRON DEFERENCE---> goes to consideration that is not agency specific - anyone can understand the topic as well as the agency - don't need any expertise in the area so you don't have to give Chev. def.!

Chevron v. Natural Resources Defense Council (1984)

FACTS: The 1977 Clean Air Act (CAA) required polluters in certain areas to obtain a permit from a state regulator before building any new or modified stationary sources of air pollution. The state regulator could only grant the permit if the polluter met specific requirements regarding the abatement of new pollution. The (EPA) promulgated a rule interpreting the term "stationary source" to include what the agency called a "bubble policy." Under this policy, an existing plant containing several pollution-emitting devices could install or modify one piece of equipment without a permit if the alteration did not increase the total emissions from the plant. HOLDING: ***In the absence of clear congressional intent, courts must accept the reasonable interpretation of administrative statutes given by the agency. Courts MAY NOT fashion their own interpretation of the statute that encroaches on the rulemaking power of the agency. Unless the regulation, arising out of interpretation of a statute, is arbitrary, capricious, or manifestly contrary to the statute, IT MUST BE UPHELD. CONCLUSION: Here, the regulations were proper. look at next part for chevron deference rule.

FREEDOM OF INFORMATION ACT (FOIA)

FOIA grants public access to most agency records. Records sought must fit definition of agency record. Agency record: records created or obtained by the agency in the course of doing the agency's work - must be under agency's control at time of request. Involves genuine disinterested journalists or scholars obtaining useful info. to give us a better grasp on how our gov. functions. Easy to obtain records. Just fill out 1 page form and give reason for request. May get charged a fee but can be waived if have a public interest reason. No standing requirement to utilize the FOIA - don't need a legally good reason - can just be curious. If determined that gov. wrongly refused to give docs. can get attny. fees. Time limits the gov. has to comply with request 9 Exemptions to the FOIA 1. National Security national defense or foreign policy 2. Internal Personnel Rules & Practices protection of employee privacy (medical records) and protection of agency from harassment 3. Documents Governed by Statutes That Direct Non-disclosure enabling statute must explicitly say that records cannot be disclosed (may just be certain records) 4. Confidential Business Information trade secrets 5. Privileged Agency Materials attny. work product, attny. client privilege, deliberative process privilege: agency is in the middle of a project - cannot have these work in progress papers - want to prevent the agency from being cross-examined 6. Investigatory Records involves criminal proceedings - wouldn't want MTP's family finding out how the gov. is tapping their phones 7. Financial Institution banks 8. Geological Exploration oil wells - don't want competitors getting maps of where all the oil is (could also be covered by confidential business info.) Exemptions should be narrowly construed. Burden of proof is on the agency to prove that an exemption exists. FOIA does not prevent agency from voluntarily disclosing confidential info.

Citizens to Preserve Overton Park, Inc. v. Volpe (1971) [Overton Park]

Facts: 1. Secretary of Transportation (defendant) authorized the expenditure of federal funds for the construction of a 6-lane interstate highway through a public park in Memphis. History: 1. Citizens sought to halt construction, arguing the Secretary violated portions of the Dept. of Trans. Act of '66 & the Federal-Aid Highway Act of '68 that prohibit the use of federal funds to finance the construction of highways through public parks if a "feasible and prudent" alternative route exists. Issue #1: Can you get JR (Judicial Review) for informal ADJ? Answer: Yes. HOLDING: Remanded. The agency head doesn't have to come into court to testify to whether or not he considered alternatives, but the agency must supply a policy rationale for the decision. Overarching RULE OF LAW: Even if the substantive statute itself says nothing about judicial review, APA § 704 still allows for judicial review of informal ADJ. BREAKDOWN OF LAW: When reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider: a. (1) whether the agency acted within the scope of its authority; b. (2) whether the agency's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; c. and (3) whether the agency's action met the necessary procedural requirements.

Chevron v. NRDC (1984)

Facts: Clean Air Act. Shortly after it was passed, EPA set goals. By 1977 some had attained and some hadn't (non-attainment states). Disputed language: "new or modified major stationary source": unclear if source means entire power plant (bubble interpretation) or single smokestack o Had been multiple RM under this phrase—EPA sometimes interpreted bubble way, sometimes non-bubble way. A number of these reviewed by DC Cir. In case where DC Cir thought the purpose was to keep air quality steady, they would allow bubble interpretation. In case where they thought purpose was to make air quality better, they didn't allow EPA to use bubble interpretation. o 1980, RM for non-attainment program. EPA decides Congress's purpose is to make air quality better, and rejects bubble interpretation. But then Reagan electednew RM, new rule saying for purposes of non-attainment, source means the whole plant. QP: Is the EPA interpretation permissible? What is the standard for reviewing an agency's interpretation of its statute? Holding: Yes. Chevron two-step process for deciding whether there is an implied delegation to the agency, and whether agency has acted within bounds [pre-Mead]: o Step one: Is there an ambiguity? o Step two: Is agency's interpretation reasonable (not arbitrary and capricious or contrary to statute)? Reasoning: Kind of interpretive judgment that DC Cir is making here--confronting totally unclear provision and invoking general provision to choose best. That kind of judgment is really a policy judgment, a political choice. B/c of that, it's a choice that should be made by the agency and not by a court o (1) implied delegation theory. P1004: if Congress has explicitly left a gap for agency to fill, there is express delegation. But whenever there's a provision of a substatntive statute that's ambiguous (eg "source" here), we take Congress to have delegated the power to the agency ♣ diff rationale than Skidmore, which was based on agency experience and expertise; here it's b/c Congress has implicitly delegated power o (2) Agencies' political accountability to the President New reason why agency is a worthy repository of delegated power. New Deal view as independent experts; but Stevens invokes President, who is freestanding source of democratic legitimacy (p1007) Most academics believe, correctly, that two-step process can be collapsed into one principle: o "A court must defer to any reasonable interpretation of a statute by an agency"

Vermont Yankee Nuclear Power Co. v. Natural Resources Defense Council, Inc. (1978)

Facts: NRDC challenges a license and a permit granted by the Atomic Energy Commission on the grounds of insufficient procedure. The lower court agreed with NRDC and remanded the license and permit. ISSUE: Are reviewing courts generally allowed to impose additional procedural requirements on administrative agencies' rulemaking processes? Ruling: a.Reviewing courts are generally not allowed to impose additional procedural requirements on administrative agencies' rulemaking processes. B. Absent constitutional constraints or extremely compelling circumstances, agencies should be free to fashion their own procedures for rulemaking. Procedural challenges turn on whether the agency has followed the mandate of (1) the APA, (2) other relevant statutes, and (3) the agency's own rules. Rejects the argument that APA § 553 merely represents the lower bounds of acceptable procedures for informal RM. Reasoning: The alternative would be totally unpredictable and eliminate the advantages of informal RM.

Citizens to Preserve Overton Park v. Volpe (Part III)

HARD LOOK DOCTRINE CASE FACTS: **Under Section 706, a thorough and critical, searching and careful, non-deferential review ** If there is a reasonably feasible and prudent alternative to running the road elsewhere that does NOT have a harmful environmental impact, then the alternative must be taken in order to get funds. **If there is no such alternative, then federal fudns can be given if there is a plan to minimize harm. **If an informal adjudication, the DoT released federal funds to the city to build the road through the park; plantiff sued. ISSUE FOR PART 3: **What does "arbitrary and capricious" review mean? HOLDING: ***The agency head does not have to come into court to testify whether or not he considered alternatives, but the agency must supply a policy rationale for the decision. RULE OF LAW: "ARBITRARY AND CAPRICIOUS" review •Under Section 706--> a thorough & critical, searching & careful, non-deferential review **There must be a "reasonable" policy rationale for the agency's decision **The Court will not make policy for agencies

Long Island Care v. Coke (2007)

Have to invalidate rule and propose with new notice if what's in final rule is not a logical outgrowth of what's in the original proposal (very subjective, fact specific) FACTS: **Evelyn Coke (plaintiff) was a domestic worker employed by Long Island Care at Home, Ltd. & its owner, Maryann Osborne (defendants). Coke provided "companionship services" to elderly & sick men and women. ISSUE: **Is a reasonable regulation that fills a gap left by Congress entitled to deference? HOLDING: YES RULE OF LAW: **A reasonable regulation that fills a gap left by Congress is ENTITLED TO DEFERENCE **In delegating power to administrative agencies, Congress may implicitly or explicitly leave gaps for an agency to fill through rules & regulations. ****Such gap-filling rules are legally binding if they are reasonable.

Humphrey's Executor (1935)

IMPORTANCE OF CASE: case on removal of officials with legislative or judicial functions FACTS: FDR removes Humphrey, FTC comm'r, but there are "for cause protections" around his dismissal under current. ISSUE: Is the president's power to remove an executive branch official applicable to officials with legislative or judicial functions? HOLDING: NO, The Act is constitutional RULE OF LAW: i.The president's power to remove an executive branch official is not applicable to officials with quasi-legislative or quasi- judicial agencies. ii.Distinction of Agents: 1.(1) high-level executive officials who are subject to removal by the president without the Senate's advice and consent, and 2.(2) appointed executive officials who carry out their duties independent of presidential influence and can be removed from their positions only with the advice and consent of the Senate.

Brand X v. FCC (2005)

If an agency acts through a Chevron-worthy process (such as N&C), the agency can choose any reasonable interpretation of a statute, even if a court has said another interpretation is better. • Eg agency does reading A, court decides that's not permissible; RM --> reading B, changes mind, does third RM and chooses reading C o Court says reading C is also reasonable, we uphold it o Going forward, agency free to do RM again and switch back to B but not A • Note: if previous court in same jurisdiction didn't acknowledge ambiguity, second court is bound by this interpretation—not whether statute is ambiguous, but whether prior court recognized ambiguity Note, for Skidmore: Court - I perceive menu of D, E, F. I don't owe deference to agency, and I choose reading D as the best reading • Agency must follow D as long as we're in lowly non-Chevron worthy world

Major questions doctrine

If the interpretation is a question of great economic and political significance, Chevron does not apply. • First came up in FDA v. Brown & Williamson Tobacco Corp. (2000). • There is a presumption that Congress would not delegate so great a power to an agency. • Also came up in King v. Burwell (2015), in which Roberts characterized the Major Questions Doctrine as a Chevron Step Zero question.

Matthews v. Eldridge (1976)

Issue: Does termination of social security disability benefits require a pre-termination evidentiary hearing? Answer: No. Reasoning: Courts should use a three-part balancing test to determine whether pre-termination procedures are required: (1) the private interest that would be harmed by erroneous deprivation, (2) the probable value of additional/earlier procedures, and (3) the public/government interest in having less procedure. Disability benefits, unlike welfare benefits, do not indicate "brutal need." Note: The court argued that the costs of additional process "come out of the pockets of the deserving," but in fact the program is a set benefit rather than based on a lump sum allocation.

Heckler v. Campbell (1983)

Judicial Review of Agency Inaction FACTS: a.Short: Campbell (P) was denied disability benefits when the Department of Health and Human Services (D), using published guidelines, determined that she was not disabled. DHHS was using regulations that factored in a person's age, health, education, and experience and set forth rules regarding whether a significant number of jobs would exist for which the applicant was qualified. If there were jobs, no benefits. Issue: Can the Secretary of Health and Human Services rely on a published medical-vocational grid to determine a claimant's right to disability benefits rather than relying on the testimony of vocational experts? Answer: Yes. Reasoning: The Secretary can use rulemaking to resolve certain classes of issues, as in National Petroleum Refiners. Note: It is unclear whether the "escape hatch" exceptions are necessary for the rule's survival.

Morrison v. Olson (1988) Dissent

Justice Scalia... The decision is Too general. This isn't law in any serious sense. Just saying, your job just got more pleasant. You can go home happy every night. Bc always decide separation of powers cases the way you feel whether you like the Pres or you like Congress.

DISSENT from INS v. Chadha (1983)

Justice White— pragmatic approach suggests that since Congress had unconstitutionally delegated away its real legislative power, it's not unconstitutional; it's constitutionally sound to allow congress to recapture some of its originally assigned legislative authority through the one house legislative veto.

Sierra Club v. Costle (D.C. Cir 1981)

Meeting with Pres/agency officials protected from disclosure; need lots of evidence to show politician improperly influenced agency Facts: EPA, Clean Air Act . EPA promulgates rule capping sulfur dioxide emissions. 2 major ways plants could reduce: (1) use scrubbers; (2) buy and burn coal with less sulfur in it. Coal mined in Western US has much less sulfur than that of the East. Companies warned that if sulfur limits set too low, it would shut down coal industry in eastern states including West Virginia (Robert Byrd, powerful senator). Big question is whether EPA will change headline number, decide not to raise or lower. o Environmental Defense Fund (EDF) challenges procedures: EPA would have adopted stricter standard w/o post comment period irregularities (ex parte contacts) and succumbed to political pressure. ♣ Costle, head of EPA: "limits on sulfur dioxide might have been stricter if not for political pressure by Byrd" (!) Issue #1: Did the agency err in accepting written comments sent in after the close of the official comment period? Answer: No. RULE OF LAW: This would only be a problem if the late comments (1) were of central importance to the RM AND (2) were submitted so close to the issuance that others did not have the opportunity to respond. Issue #2: Is the rule invalid because agency decisionmakers had minimally disclosed meetings with lobbyists and politicians after the deadline for comment had closed? Answer: No. Reasoning: Ex parte contacts are only unlawful if the RM is like an ADJ. And ex parte contacts help ensure democratic responsiveness. Undisclosed meetings with Senators were not of "central relevance." Issue #3: Is the rule invalid because agency decisionmakers met with the President and did not include a summary in the docket? Answer: No. Reasoning: Intra-executive contacts are allowed and need not be disclosed unless the substantive statute expressly says otherwise. Issue #4: Is the rule invalid because Senator Byrd exerted too much pressure? Answer: No. Reasoning: The challenger must show that the politician tried to make the agency act on the basis of non-statutory factors and that the agency actually acted on such factors. Mere awareness of a congressperson's strong views is not enough to show undue influence. Note #1: reads D.C. Fed'n as requiring, as grounds for invalidating an agency decision, (1) that the pressure on the agency decisionmaker is designed to force him to decide based on factors not made relevant in the statute and (2) that the decision was actually affected by those extraneous considerations. Note #2: This case concerns the CAA's specific provisions wrt ex parte contacts, but is cited to defend ex parte contacts beyond the CAA context.

Conflict = Chev. is very deferential and HLD is not very deferential. Chev. and HLD could both apply. HOW TO DECIDE WHICH TO USE?

NO CLEAR ANSWER *Aggressiveness of review is also dictated by a judge's personality. Some cts. distrust agencies more than others. Some agencies have better reputations than others and will receive more deference. Consider whether the agency assisted in the drafting of the statute.

Chenery II (1947)

No obligation to use RM instead of ADJ to announce policy Facts: Agency: SEC. Substantive statute: Public Utility Holding Company Act (PUHCA) SEC wants to make sure that most of the common stock (voting stock) gets transferred to preferred stock (non-voting stock). During reorganization, Chenery and his friends buy up a lot of the common stock. ♣ This looks bad, but there's no proof of anything abusive. ♣ Agency action: SEC decides that when corp involved in PUHCA investigation, abuses are so easy and hard to correct that prudent thing is to prevent purchasing. So SEC says in the restructuring we will convert all the preferred to the common stock, except for the stock you bought. This is prophylactic policy - no allegation Chenery and his friends actually committed abuses. But there is a set of abusive practices, difficult to detect, and so SEC will broadly prohibit trading by insiders and refuse to honor, even though only a subset of those actions are actually abusive QP: Can SEC adopt this prophylactic policy in an adjudication, and not RM? Holding: Yes. o If statute authorizes RM but doesn't make necessary or mandatory, there's no implied obligation to use the RM power instead of making policy case-by-case (Chenery II occurs prior to APA, but APA has been construed the same way)

Hoctor v. USDA (7th Cir. 1996)

Note: The D.C. Cir. has treated Hoctor ambivalently (Central Texas Telephone) Facts:Animal Welfare Act, designed to assure humane treatment of animals, authorizes the Secretary of Agriculture to promulgate such rules as he may deem necessary to carry out purposes of the Act. The BIG CAT case with a rule after notice and comment regarding "structurally sound." 8ft fence required but Hoctor only had 6ft. Hoctor says this is substantive and should have had notice and comment. ISSUE: Is an agency rule that makes a reasonable choice among methods of implementation of a statute or regulation an interpretative rule not subject to notice-and-comment rulemaking? HOLDING: NO Rule: a.An agency rule that makes a reasonable choice among methods of implementation of a statute or regulation is not an interpretative rule, but rather a legislative rule. i.Rules that are consistent with the statute or regulation but are not derived from it are not interpretative because they are an arbitrary choice among methods of implementation. In general, rules that turn on numbers are not interpretative. ii.When substantive rule, must allow for notice and opportunity for comment.

Inferior v. Principal Officers:

PRINCIPAL: high-level officials in executive branch and heads of independent agencies. Cabinet members and commissioners are principal officers because there is no one in the government hierarchy between them and the President. INFERIOR: lower-level executive officials who are under the supervision of other executive officials beneath the President.

Holmes v. NYC Housing Authority

RULE OF LAW: This decision indicates that agencies exercising adjudicatory powers must first limit the scope of a broad delegated power by adopting their own standards, either by rulemaking or case-by-case adjudication DUE PROCESS.... requires some restraints on excessive agency discretion; standard publicized objective standards to limit arbitrary discretion by the decision maker

Abbott Labs v. Gardner (1967)

Ripeness of Agency Action for Challenge [RIPENESS TEST] Facts: Food and Drug Act, dealing w advertising of drugs. • Key provision: must print 'the established name' (scientific name) of the drug prominently, and in type at least half as large for a proprietary name (eg Tylenol). Supposed to help generic drug distributors. FDA rule says drug makers must print generic name every time brand name appears in an advert (and not just in marquee) o Drug makers sue FDA in dist court, seek to challenge rule even though none of them have violated it yet (seeking pre-enforcement review of the rule). o Up til 1960s the ripeness doctrine said you typically couldn't bring challenge prior to enforcement proceedings. QP: Is rule susceptible to judicial review prior to enforcement? Holding: Yes. Reasoning: Ripeness test o (1) fitness of issues ♣ Was agency action final? ♣ Purely legal issue? o (2) Hardship to parties of withholding review ♣ Cost of compliance ♣ Cost of defiance • Capacious analysis - looks to authorized legal penalties but also practical publicity effects (being seen as defying FDA regulation) o All of these factors weigh in favor of Ps, get review

Public Citizen v. Young (1987)

Stage 1 Chev. Case Exception to Chevron- too far extension FACTS: a.Case involved Delaney Clause - If something causes ca to any degree then it is completely prohibited. FDA attempted to interpret meaning of statute to be more flexible - Ct. said no. RULE OF LAW: ...If a court finds the FDA's construction contrary to clear congressional intent = no deference. WRIGHT SAYS:.... If you can get to step 2 of Chev., the ct. will likely uphold the regulation. If stopped by step 1, then the ct. will not uphold the regulation.

Congressional Powers/Non-Delegation Doctrine: Early Cases: Cases

State ex. rel. R.R. Schechter Poultry v. U.S.

Mathews v. Eldridge (1976)

Subsequent Judicial Evolution of "Property" and "Liberty" [3 step balancing test - to determine what process is due] FACTS: a. Mr. Eldridge (plaintiff) began receiving Social Security benefits in June 1968. b. In March 1972, the state agency in charge of monitoring Eldridge's medical condition sent him a questionnaire. Based on Eldridge's answers to the questionnaire and reports from Eldridge's doctor and a psychiatric consultant, the state agency informed Eldridge that he was no longer eligible for benefits. c. Eldridge disputed this decision in writing, but the state agency terminated his benefits. d. (SSA) accepted this determination and advised Eldridge that his benefits would terminate after that month. HISTORY: a. Eldridge did not request reconsideration, but filed a lawsuit challenging the constitutionality of the administrative procedures used to determine whether a Social Security recipient has a continuing disability. ISSUE: a. Does the Due Process Clause of the 5th Amendment require that the recipient of Social Security disability benefit payments be afforded an opportunity for an evidentiary hearing prior to the termination of his benefits? HOLDING: NO RULE OF LAW: a. Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause requires a consideration of three factors: i.(1) the private interest at stake in the administrative action; ii.(2) the risk of an erroneous deprivation of this interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and iii.(3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. APPLICATION: SCT rejected Goldberg's argument that a pre-deprivation hearing is due if govt action threatens significant harm. The Court stated that once it is determined that an action will deprive a person of a protected interest, you must look to the 3 factors. 1) The stronger the private interest is in being free from deprivation, the more procedure is required under due process 2) Govt has an interest in preceding with no more process than already afforded 3) Risk of erroneous deprivation if additional procedure is not afforded- greater risk the stronger the claim to additional procedures

Hope Natural Gas v. FPC (1944)

Supreme Court OVERRULES Smyth's Constitutional Fact Doctrine HOLDING:A rate order which is not unjust or unreasonable in effect is not subject to judicial review even if the method used contains some infirmities The court defers to the agency's determination that uniform maximum rates are good policy and finds that the companies received sufficient due process before the max rates were implemented.

City of Arlington v. FCC (2013)

TAKEAWAY: ***Under administrative law, federal courts must give Chevron deference to a federal agency's interpretation of a statutory provision that is ambiguous regarding the scope of the agency's regulatory authority. FACTS: to implement the Communications Act of 1934. This authority subsequently applied to the provisions of the TeComm Act of 1966, which limited the ability of local govs to regulate the placement of wireless comms towers. The Act identified 5 specific limitations, 1 of which required local govs to act on tower-location applications within a reasonable period of time (reasonableness provision) The Act also included a savings clause, which stated that the 5 enumerated limitations were the only limitations on local decision-making authority. In response to an inquiry from an industry group representing the wireless-communications industry, the FCC issued a declaratory ruling that interpreted the reasonableness provision as imposing a rebuttable presumption of timeliness for certain application decisions. HISTORY: ***The City of Arlington, Texas and other state and local governments (plaintiffs) petitioned the court of appeals for review of the FCC's ruling, arguing that the FCC lacked the authority to interpret the reasonableness provision. ISSUE: Under administrative law, MUST federal courts give Chevron deference to a federal agency's interpretation of a statutory provision that is ambiguous regarding the scope of the agency's regulatory authority? HOLDING: YES RULE OF LAW: a.Under administrative law, federal courts must give Chevron deference to a federal agency's interpretation of a statutory provision that is ambiguous regarding the scope of the agency's regulatory authority. CHEVRON use... 1. First, courts apply the traditional canons of statutory construction to determine whether Congress's intent is clearly expressed in the statute.... PASSED 2. Chevron deference is not limited to an agency's non-jurisdictional interpretations, because there is no difference between jurisdictional and non-jurisdictional issues in this context..... INVOLVED IN THIS CASE. (1. An inquiry into the scope of an agency's authority is the same as an inquiry into the validity of the agency's application of its statutory authority. ) APPLICATION: ***Here, Congress has unambiguously granted the FCC authority to administer the Act. The savings clause is ambiguous regarding the FCC's authority to interpret the reasonableness provision, and the FCC's interpretation of the provision is reasonable. ***Therefore, the FCC's ruling is entitled to Chevron deference. The judgment of the court of appeals is affirmed.

INS v. Chadha (1983)

TAKEAWAY: Legislative veto is unconstitutional—....Congress must delegate or not delegate, but can't inject its future self into a delegation FACTS: Congress delegates power to INS AGENCY to suspend deportation, but w/ proviso that any suspension could be overridden by resolution of House or Senate --> GUY IS deported. This provision is a delegated power to future Congress to block deportation. There are no substantive criteria, even vague criteria, for Congress to use. • Chadha's parents ethnically Indian, moved to Kenya. Chadha comes to US to study, overstays visa. Neither Britain nor Kenya will accept --> he's stateless. QP: Does legislative veto VIOLATE separation of powers? Holding: Yes. Legislation requires bicameralism and presentment. Veto in Chadha is legislative act (has purpose/effect of altering legal duties . . of persons). Didn't go through bicameralism/presentmentunconstitutional. • Veto is a legislative activity - defines as having purpose/effect of altering legal duties/relations (but would seem to describe almost all agency activity)

Schweiker v. Hansen (1981)

TAKEAWAY: a. The doctrine of equitable estoppel cannot be used against the government except in cases of affirmative misconduct. FACTS: a.In 1974, Hansen (plaintiff) met with Don Connelly of the Social Security Administration (SSA). b.Hansen asked Connelly if she was eligible for "mother's insurance benefits," which required a written application.... Connelly stated that she was not eligible. c.In reliance on this statement, Hansen did not file an application. d.Connelly's statement was incorrect and not in accord with the SSA's Claims Manual, a handbook for SSA employees. e.In 1975, Hansen did file an application and was approved for the insurance benefits. ISSUE: Can the doctrine of equitable estoppel be used against the government in cases that do not involve affirmative misconduct? HELD: NO RULE OF LAW: The doctrine of equitable estoppel CANNOT BE USED AGAINST THE GOVERNMENT except in cases of affirmative misconduct.

Office of Personnel Management v. Richmond (1990)

TAKEAWAY: a.Ordinarily, the US GOV. may not be estopped because of erroneous or unauthorized statements of its employees when the asserted estoppel would nullify a requirement prescribed by Congress. FACTS: a. Richmond (plaintiff) sought advice from a federal employee of the Navy regarding the statutory limit on earnings that would disqualify him from a disability annuity. b.As a result of erroneous information that this employee provided, Richmond earned more than permitted by statutory eligibility requirements and the Office of Personnel Management (defendant) denied him six months of benefits. ISSUE: a.May the erroneous oral and written advice of a United States Government employee to a benefits claimant give rise to estoppel against the Government, thereby entitling the claimant to a monetary payment not otherwise permitted by law? HOLDING: NO RULE OF LAW: a. Ordinarily, the US Government may not be estopped because of erroneous or unauthorized statements of its employees when the asserted estoppel would nullify a requirement prescribed by Congress.

Universal Camera (1951) (3 cases)

TAKEAWAY: [Review of Questions of Fact] - substantial evidence on the record considered as a whole. • FACTS: i.In 1946, the National Labor Relations Board (NLRB) brought a proceeding against Universal Camera Corp. (Universal) for discharging an employee for testifying under the Wagner Act. HISTORY: i.The case went to a hearing before a trial examiner of the NLRB. The trial examiner recommended that the NLRB dismiss the complaint, and issued a report finding that Universal had not discharged the employee in retaliation for his testimony. ii.Supreme Court is resolving a Circuit Split on standard of review when District Cts. review employment law cases: ISSUE: Should a court defer to a federal agency's FINDING OF FACT? HOLDING: YES RULE OF LAW: i.A COURT SHOULD DEFER TO A FEDERAL AGENCY'S FINDINGS OF FACT if they are supported by "substantial evidence on the record considered as a whole." ii.Statute itself says consider the WHOLE RECORD: APPLICATION: 1.Here, the Court of Appeals DID consider the record as whole and thus applied the correct standard of review. 2.HOWEVER, the Court of Appeals DID NOT properly take into account the examiner's findings. The examiner's report is part of the record and the court should take it into account. 3.WE REMAND TO THE COURT OF APPEALS IN accord the findings of the trial examiner the relevance that they reasonably command in answering the question whether the evidence supporting the NLRB's order is substantial.

Fook Hong Mak v. INS (1970)

TAKEAWAY: - Court will approve of the agency's general rule if the determination is founded upon considerations rationally related to the administration of the relevant statute. FACTS: 8-day transit authorization in US and stayed in US for 6 months. Up for deportation. Wanted to utilize §245 for conversion of status from transit authorization for lawfully admitted alien. HELD: o Automatic waiver is constitutional because it's uniformly applied for those over-staying transit authorization. ♣ We can't just require agencies to give an individual hearing every time Congress grants it discretion to do something

Londoner v. Denver (1908)

TAKEAWAY: When a state legislature commits to a subordinate body the duty of determining whether and in what amount a tax should be levied, and of making its assessment and apportionment, due process of law requires that the taxpayer have notice and an opportunity to be heard before the tax becomes law. FACTS: *The charter of the city of Denver (defendant) confers upon the city the power to make local improvements and to assess the cost upon property specifically benefited. *The charter specifies the steps that city authorities must take to execute this power to improve and assess costs. ***For example, under the charter, due notice and opportunity for a hearing must be presented prior to the assessment of the cost upon the landowners. HISTORY: **Mr. Londoner & other property owners (plaintiffs) filed a case in state court seeking relief from the city's assessment of a tax for the cost of paving a street upon which their lands abutted. ISSUE: ***Must a city provide notice and an opportunity for a hearing before assessing a tax on landowners for local improvements that specifically benefit their land? HOLDING: YES RULE OF LAW: ****When a state legislature commits to a subordinate body the duty of determining whether and in what amount a tax should be levied, and of making its assessment and apportionment, due process of law requires that the taxpayer have notice and an opportunity to be heard before the tax becomes law. ^^Notices must be... **personal, **by publication, **or by a law fixing the time and place of the hearing.

Bi-Metallic v. State Board of Equalization (1915)

TAKEAWAY: ^^^Where an agency rule applies to a large number of people, the Due Process Clause does not require that each person have an opportunity to be heard regarding the rule's adoption. No individual hearings for mass change of Denver tax values Facts: CO has state property tax; taxable value of each parcel is determined by local assessor [lots of individualized determinations]. CO sets up statewide agency that can increase all values in a city (here increases Denver taxable value by 40%); individual landowners sue the agency and argue this is like a mass trial, and procedural DP entitles each to a hearing. ISSUE: ^^^Do all property owners have a constitutional right to be heard prior to the adoption of an administrative order that increases property taxes? HOLDING: NO RULE OF LAW: *****Where an agency rule applies to a large number of people, the Due Process Clause DOES NOT require that each person have an opportunity to be heard regarding the rule's adoption.

State ex rel. RR v. Chicago (1889)- Minnesota

TAKEAWAY: Non-delegation at the state level (EARLY NON-DELEGATION CASE) Facts: Shippers complained to MN RR Commission that rates for milk carried on passenger trains in MN were unreasonably high. Commission decided on an equal and "reasonable" rate, brought a mandamus action in state court to make the RR obey the order. Holding: Agencies cannot make law, but they can only carry out the law. Since the legislature meets infrequently, deference must be given the agency's decision to set the rate. APPLICATION: i. 1) The powers given to the Commission are an acceptable conferring of authority to make decisions in pursuance of existing law - not an improper delegation of legislative authority. ii.2) It is constitutional for a statute to deny courts the power to review a determination by an agency, setting certain rates as reasonable.

National Coalition v. Thomas

TAKEAWAY: Mango Case FACTS: **Agency promulgated rule that gave these mango-growing countries a little slack in regard to some chemical in mangos. Orig. reason agency gave for this was to help economy of poor foreign country. HELD: **Ct. said orig. rationale outside scope of consideration and remanded rule. New rationale = helping the American public interest. Although this may seem silly, the next time the agency promulgates a rule, they may be more careful.

U.S. v. Florida East Coast Railway Co. (1973)

TAKEAWAY: When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires the agency to follow the procedures set forth in §§ 556-57. Facts: RR kept track of which cars owned by which companies, but never developed system for collecting rent for a car on the other's lines. Nation's RR cars were basically a common pool—no incentive to maintain them or make more1960s shortage o Prices for just about every RR transaction set by ICC, so way to fix in this is to make companies rent and incentivize making more cars. Can clearly make a rule to address this, o From early 1900s to ... everyone presumed "after hearing" was sufficient to trigger this, b/c Notice and Comment didn't involve oral hearing. So ICC thinks this means formal RM is required—but then, under pressure from Congress to alleviate car shortage, the ICC did N&C HISTORY: a.The district court found that the APA required that the ICC meet the formal rulemaking requirements of §§ 556-57 prior to issuing any rules. The agency sought review of the decision by the US Supreme Court. ISSUE: a. Does the APA require the formal rulemaking procedures of §§ 556-57 prior to the promulgation of a rule where the statute authorizing the establishment of the rule states that rulemaking may only occur "after hearing," but does not contain a requirement that the rule be made on the record? HOLDING: NO RULE OF LAW: a.When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires the agency to follow the procedures set forth in §§ 556-57. b.§§ 556 and 557 --> They are stricter than those set forth in § 553. c. When a statute requires a hearing prior to rulemaking, but does not also require that the rule be made on the record, § 553's procedures apply.

Christensen v Harris County (2000)

TOPIC: Deference to Agency Materials Takeaway: Not every interpretation is entitled to strong deference - like an agency's legal interpretation contained in an interpretive rule or policy statement. FACTS: Under the Fair Labor Standards Act (FLSA), gov. employers are required to offer compensatory time (comp time) to employees that work overtime. The FLSA states that employers must reasonably accommodate employees' requests to use their accrued comp time. The FLSA also outlines circumstances under which the employers have to compensate employees for accrued comp time. Harris County (defendant) became concerned that it would not be able to afford to compensate all of its employees for their accrued comp time. As a result, Harris County sought to mandate that its employees use their comp time to take time off. Subsequently, Harris County adopted a policy allowing supervisors to mandate that employees with a lot of comp time use the time. Christensen, et al. (plaintiffs) were deputy sheriffs in Harris County that were ordered to use their comp time. HISTORY: The plaintiffs brought suit, claiming that Harris County's policy violated the FLSA. District court granted the plaintiffs summary judgment. The United States Court of Appeals for the 5th Circuit reversed. US Supreme Court granted certiorari. ISSUE: What weight should the division's opinion letter be given in the court's determination of statutory construction? HOLDING: --------->NO WEIGHT RULE OF LAW: Court tries to adopt a sensible rule: ***Giving Chevron deference to a formal adjudication (uncontroversial) or to formal rulemaking because Congress has given the agency the authority to adopt binding rules by its own intent. oCourt applied Skidmore and its factor analysis instead of Chevron. Decided that Skidmore should be applied to interpretations contained in interpretive rules or policy statements. So what would NOT get Chevron deference? Stuff that's short of that - like opinion letters, which do not have the binding force of law. What else? *Interpretive rules *Policy statements *Agency manuals *Opinion letters

Nader v. Allegheny Airlines (1978)

TOPIC: Agencies Versus Courts and Primary Jurisdiction FACTS: a. Ralph Nader (plaintiff) bought a ticket for a flight operated by Allegheny Airlines, Inc. (Allegheny) (defendant). b. Nader was travelling to a speaking engagement in Hartford, Connecticut. Following Nader's purchase, Allegheny informed Nader that he had a "confirmed reservation" on the flight. c. Allegheny had a practice of intentionally overbooking its flights. Allegheny did not inform Nader of its overbooking policies. d. Nader had experienced overbooking with other airlines, but only as the result of a mistake. Nader was removed from his flight to his speaking engagement in accordance with Allegheny's overbooking policy. ISSUE: a. Does the doctrine of primary jurisdiction apply to suspend judicial proceedings on a common law cause of action where the issues to be decided agency and court are inconsistent? HOLDING: NO RULE OF LAW: a. Primary Jurisdiction Doctrine: i. If a court's decision would encroach upon a determination to be made by the agency, the ct. should suspend the action and send it to the agency. b. The doctrine of primary jurisdiction does not apply to suspend judicial proceedings on a common law cause of action where there the issues to be decided by the ct. and those to be decided by the agency are not absolutely inconsistent. c. A court may just send a part of the case or some issue back to the agency b/c: i.agency can create a better record ii. less expensive iii. may not ever have to hear this case in fed. ct. b/c claimant is happy with agency decision. Kind of like appt. a special master. APPLICATION: a.Based decision on fact that Nader did not claim that the airline had violated any provision of the agency's enabling Act or had violated its tariff filed with the agency.

Chenery (3 cases)

TOPIC: Requiring satisfactory and consistent agency explanations and the agency's initial choice between rulemaking and adjudication Two key points of all three cases oThe reviewing court, even SC, will not supply a justification for an agency decision when the agency did not provide one itself oRules can be unfair if they severely disappoint reasonable expectations of past gov't promises

McKart v. United States (1969)

TOPIC: Exhaustion of Administrative Agency Internal Remedies FACTS: a. A Selective Service draft board classified Jack McKart (defendant) as exempt from military service under the Selective Service Act of 1948 (Act), 50 U.S.C. § 456(o), which provided an exemption for sole surviving sons of veterans who had been killed in action. b. The draft board later incorrectly reclassified McKart as immediately eligible to serve, and ordered McKart to report for a medical exam as part of his induction. c. B/C McKart objected to the Vietnam War, he declined to appeal his reclassification to a state appeal board (board). ISSUE: a.Under administrative law, does a criminal defendant's failure to exhaust administrative remedies necessarily bar defenses not raised in the administrative process? HOLDING: NO RULE OF LAW: a. Under administrative law, a criminal defendant's failure to exhaust administrative remedies does not necessarily bar defenses not raised in the administrative process. b.Doctrine of exhaustion of administrative remedies i. Judicial review is not available for arguments that a litigant failed to raise in the course of an available administrative-review process. ii. However, there are also many exceptions to the exhaustion doctrine, which is intended to ensure that agencies have an opportunity to develop the record and independently exercise statutory discretion

Syracuse Peace v. FCC (1989).

TOPIC: This case does not apply HLD - deferential case. RULE OF LAW: ***Complete factual support is not necessary for agency policy judgments to be valid. FACTS: ****FCC refused to enforce the Fairness Doctrine against a media station based on a finding that application of the doctrine was not constantly compelled.

Auer v. Robbins (1977)

TOPIC: Auer Deference Takeaway: Generally, an agency's interpretation of its own regulations is controlling....At least as great, prob greater than Chevron deference (plainly erroneous or inconsistent with the regulation) FACTS: 1.The Secretary of Labor promulgated a regulation setting forth the salary-basis test. 2.The Secretary interprets this rule to deny exempt status to employees who are covered by a policy permitting disciplinary or other deductions in pay. Issue: Generally, is an agency's interpretation of its own regulations controlling? HOLDING: YES APPLICATION: 1.Since the Secretary's interpretation is not plainly erroneous or inconsistent with the regulation, it is entitled to deference.

Encino Motorcars, LLC v. Navarro (2016)

TOPIC: CHEVRON DEFERENCE TAKEAWAY: a.An administrative agency's regulation is not entitled to Chevron deference if the regulation is procedurally defective. FACTS: a.The Fair Labor Standards Act (FLSA) required employers to pay time-and-a-half wages for any hours worked in excess of 40 hours in a given week. i.The FLSA provided an exemption for certain workers who sold or serviced vehicles. ii.The industry came to rely on this interpretation. ISSUE: a.Is an administrative agency's regulation entitled to Chevron deference IF THE REGULATION IS PROCEDURALY DEFECTIVE? HOLDING: NO RULE OF LAW: a.An administrative agency's regulation is not entitled to Chevron deference if the regulation is procedurally defective. b.Ways to be PROCEDURALLY DEFECTIVE: i.One of the ways in which a regulation can be procedurally defective is if the agency alters a long-standing statutory interpretation on which the relevant industry has come to rely without offering adequate reasons for the change. ii.Absent such explanation.... the agency's action is arbitrary and capricious and not entitled to deference.

INS v. Cardoza Fonseca (1987)

TOPIC: Changing scope of Chevron's 2-stage test for judicial review of an agency's interpretation of key statutory terms. FACTS: **Cardoza-Fonseca (defendant) is a Nicaraguan citizen who entered the USA in 1979 as a visitor & remained longer than authorized. The INS began deportation proceedings against her after she refused to depart voluntarily. ISSUE: ** If an alien shows a well-founded fear of persecution to support refugee status under section 208(a) of the INA, does that fear also satisfy the section 243(h) requirement that the alien's life or freedom would be threatened if deported? HOLDING: The 2 statutes created completely separate tests. Immigration Acts created a right not to be deported that applies much more narrowly than the discretionary grant of asylum. Tests are different in scope. APPLICATION (USING CHEVRON): o We may not know what Congress intended in a positive sense, but we know what they did NOT mean - in a negative sense. We know that they didn't mean the INS interpretation. CONCLUSION: **Court STOPS at Chevron Stage 1. That gives a definitive result - that intent is evident NEGATIVELY.

Christopher v. SmithKline Beecham Corp. (2012)

TOPIC: Exceptions to Auer Deference... HISTORICAL INTERPRETATION BY INDUSTRY FACTS: 1.(SmithKline) (defendant) was a pharmaceutical company that sold prescription drugs. SmithKline hired detailers, also known as sales representatives, to promote SmithKline products to doctors with goal of obtaining a nonbinding commitment from doctors to prescribe SmithKline drugs. 2.The pharmaceutical industry had used detailers in this capacity since the 1950s. In 2003, SmithKline hired Christopher & Buchanan (plaintiffs) as detailers. 3.Both plaintiffs were hired based on their prior sales experience. SmithKline trained the plaintiffs to obtain the maximum possible commitment from doctors. The plaintiffs spent approximately 40hrs per week in the field visiting doctors and an additional 10-20 hours per week attending events, going over products, and performing administrative tasks. 4.SmithKline did not closely monitor the plaintiffs' work. In addition to base pay, the plaintiffs received incentive pay based on their sales volumes. Christopher's average earnings totaled $72K per year. Buchanan's average earnings totaled $76K per year. SmithKline did not pay the plaintiffs overtime pay for hours worked in excess of 40 hours per week. HISTORY: 1.The plaintiffs sued SmithKline for overtime pay under the Fair Labor Standards Act (FLSA) 2.The district court granted summary judgment for SmithKline. The court of appeals affirmed. US Supreme Court granted certiorari. ISSUE: Is an agency entitled to deference even if it goes against historical trend? HOLDING-- NO RULE OF LAW: 1.Generally, the DOL's interpretation of the regulations is entitled to controlling deference. .... HOWEVER, ....no deference is warranted where, as here, the pharmaceutical industry has reasonably interpreted the regulations to exempt detailers without challenge since the 1950s.

Ethyl Corporation v. EPA (1976)

TOPIC: Judicial hard-look on the §706 substantive merits VS. very demanding procedural standards under §553 FACTS: a.The Clean Air Act Amendments of 1970 gave the EPA authority to protect public health by regulating fuel additives that produced dangerous emissions. b.The EPA sought to address health concerns relating to lead emissions from leaded fuel. c. In 1973, the EPA published final regulations for lead emissions, together with data and research in support of the regulations. 706(2)(A): 1.provides standards for judicial review of a government agency's actions 2. 706(2)(A) permits a reviewing court to set aside agency actions, findings, or conclusions if found to be arbitrary or capricious. HISTORY: Ethyl & other lead-additive producers (plaintiffs) appealed the EPA's emissions regulations to the US Court of Appeals, arguing among other things, that the EPA's emissions regulations were arbitrary and capricious. ISSUE: a.May a court set aside a federal agency's regulations as ARBITRARY OR CAPRICIOUS if the agency has a rational basis for its regulations? HOLDING: NO RULE OF LAW: A court may not set aside a federal agency's regulations as ARBITRARY OR CAPRICIOUS if the agency has a rational basis for its regulations. Furthermore... Not all, or even a preponderance, of the evidence before an agency must support the agency's conclusions for those conclusions to be reasonable. *Breakdown a.Evidence Before the committee i.So long as an agency's regulations are rationally based upon the evidence before the agency, a court may not set aside the regulations as arbitrary or capricious. b.Deference i.In reviewing regulations, courts are required to be deferential to the judgment of federal agencies and must affirm regulations that have a rational basis in the facts an agency has presented.

Pension Benefits v. LTV (1990)

TOPIC: Pension Benefit Case- Very deferential FACTS: **LTV (defendant) was a steel company that offered 3 defined-benefit pension plans to its employees. **The pension plans were subject to Employee Retirement Income Security Act (ERISA),which created the Pension Benefit Guaranty Corporation (PBGC) (plaintiff) to insure private-sector participants against the termination of underfunded benefit plans. **In 1986, LTV's plans had unfunded liabilities totaling about $2.3B. About $2.1B of LTV's unfunded liabilities were insured by PBGC. HISTORY: **BGC initiated an action to enforce the restoration in district court. The district court found that PBGC had exceeded its authority. ISSUE: **May the Pension Benefit Guaranty Corporation restore a terminated pension plan if restoration is consistent with its duties under the Employee Retirement Income Security Act? HOLDING: YES RULE OF LAW: ***HARD-LOOK DOCTRINE •The agency doesn't have to review or explicitly discuss some relevant part of policy. •This ct. says if we remanded rules every time an agency failed to explicitly consider a relevant part of policy, the process would be too slow. Agency only has limited time and budget.

Crowell v. Benson (1932)

TOPIC: Power of Agencies to Adjudicate --> Public, Private and Constitutional rights doctrine FACTS: 1. Knudsen was a longshoreman who was injured while working on a boat for Benson. Knudsen brought a workers' compensation claim against Benson under the Longshoremen's and Harbor Workers' Compensation Act(the Act). Crowell, the workers' compensation judge, ruled in favor of Knudsen. HISTORY: i.Benson sued to enjoin enforcement of a worker's comp claim made by Crowell (D), a deputy commissioner of US Employee's Compensation Commission, contending the enabling act was unconstitutional in that it vested adjudicatory power in administrative agency. ISSUE: i.May federal judiciary courts MAKE DE NOVO RULINGS on jurisdictional facts even if Congress has given an administrative court the power to make factual findings? HOLDING: YES RULE OF LAW: Public v. Private Rights i.Constitutional Facts 1.Art. III Duties a.In cases brought to enforce constitutional rights, the Article III judicial power of the USA extends to questions of fact & law. b.CONGRESS MAY NOT VEST IN ADMINISTRATIVE AGENCIES THE FINAL POWER TO DETERMINE FACTS THAT INVARIABLY DETERMINE CONSTITUTIONAL RIGHTS. ii.PRIVATE FACTS 1.Congress has the authority to determine whether judiciary courts have power to hear certain cases, or whether Congress reserves the right to hear matters arising between the government and others through "legislative courts." APPLICATION: i.Here b/c the case isn't about gov & is actually a PRIVATE RIGHTS CASE.... ....the district court has the authority to determine the fact of employment, which is a condition of the operation of the statute.

USA v. 53 Eclectus Parrots (1982)

TOPIC: REVIEW OF QUESTIONS OF LAW FACTS: 1.Allen (defendant) was a bird trader. Through an importer, Allen bought 56 eclectus parrots originally from Indonesia and imported them into the United States. 2.Indonesia prohibited the export of eclectus parrots. Allen did not know of the Indonesian law, or of 19 U.S.C. § 1527, which prohibits the import of any wild bird if exporting the bird is prohibited in the country of origin. 3.USA customs seized the parrots & ordered their forfeiture. HISTORY: 1.USA moved for summary judgment 2.Allen (D) appealed from a summary judgment ordering the forfeiture of 53 eclectus parrots to customs. *There is no factual dispute. *The dispute is a question of law ISSUE: Is the a question of law up to the agency? HOLDING: In this case, yes... RULE OF LAW: 1.A question of law is one that a court OR ADMINISTRATIVE AGENCY answers by applying legal principles.... ALSO, THE AGENCY HAS EXPERTISE 2.Variations a.Degree of deference that courts should accord to Agency should vary depending on whether we are defining a general term or if it is a situation where we are applying facts to a particular legal principle CONCLUSION= *less deference to Agency if just defining legal term - more deference when applying legal term in particularized context NOTE: .... GENERALLY, Burden is on proponent of the rule/order to go forward w/process and bear burden of proof.

USA v. Caceres (1979)

TOPIC: Restricts AZ Grocery principle. Not an APA case (because it was an internal IRS rule), so the agency is not bound by its own rules FACTS: a.Caceres (defendant) was charged with bribing an agent of the IRS. ISSUE: a.Is evidence obtained by an administrative agency in violation of the agency's regulation admissible in a criminal proceeding if obtaining the evidence did not also violate the Constitution or a statute? HOLDING: YES RULE OF LAW: a.Evidence obtained by an administrative agency in violation of the agency's regulation is admissible in a criminal proceeding if obtaining the evidence did not also violate the Constitution or a statute.

Allentown v. Mack (1998)

TOPIC: Rigor or Deference in judicial review of agency determinations of law, fact, and policy. i.Substantial Evidence- probative circumstantial evidence that the agency did not credit FACTS: 1.Allentown hired 32 of the branch's former Mack employees, several of whom had made statements indicating a lack of employee support for the union. Following the acquisition, the union asked Allentown to recognize it as the employees' union. Allentown declined, asserting uncertainty that the union had employee support. 2.Allentown conducted a poll of employee support for the union. After losing the vote, the union filed a charge of unfair labor practice with the National Labor Relations Board (NLRB) (defendant). HISTORY: 1.Allentown (P) was accused by local 724 of unfair labor practices. 2.The NLRB (D) found Allentown guilty of unfair labor practices b/c it did not have a good-faith reasonable doubt about the extent of support for local 724 among Allentown's employees when it conducted a poll of employees. NLRB - very politically sensitive board but not a model of your impartial agency ISSUE: Under administrative law, is a federal agency's fact-finding supported by substantial evidence IF THE RECORD CONTAINS "PROBATIVE CIRCUMSTANTIAL EVIDENCE" that the agency did not credit? HOLDING: NO RULE OF LAW: 1.Substantial Evidence a.Under administrative law, a federal agency's fact-finding IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IF THE RECORD CONTAINS probative circumstantial evidence that the agency did not credit.

Community Nutrition v. Bergland

TOPIC: What is a "clear error of judgment" under hard-look doctrine? INTERESTING:.... School Lunch Case: Rule re infusion of nutrients into school cafeteria junk food. FACTS: **FDA has statutory authority to bring a court action condemn any interstate shipment of food that "is adulterated." **FDA established through a regulation (w/out Notice &Comment) "action levels," informing food producers of the maximum amount of unavoidable contaminants that it would permit. HOLDING: rejected the FDA's argument for 3 reasons: 1. language employed by FDA suggested that the action levels had both a present and binding effect' 2. CNI's view of action levels indicated they had a present and binding effect 3. FDA had made statements that the action levels established a binding norm. RULE OF LAW: ^^^^Agency's conduct limited its discretion, promulgated rules with a present and binding effect, and accorded its action with substantive significance.

Weiner v. USA (1958)

TOPIC: appointees to independent, quasi-judicial tribunals in the executive branch. FACTS: i.War Claims Commission case. This commission hears and determines war claims arising out of WWII. Suppose to be temporary. Then it will be done. ii.Congress fails to discuss how or when the war claims commission can be removed in the statute. War claims commission stays in existence for longer than it is suppose. iii. POTUS & one of the commissioners has a little tiff. So, now President wants him gone. Statute does say how he should be removed. ISSUE: May Congress limit the president's removal power over executive appointees to independent, quasi-judicial tribunals in the executive branch? HOLDING: YES RULE OF LAW: i.Congress may limit the president's removal power over executive appointees to independent, quasi-judicial tribunals in the executive branch. APPLICATION i.Congress created the Commission to perform the role of an independent, quasi-judicial tribunal. - AKA CONGRESS ALONE CAN REMOVE

National Cable & Telecommunications Assn. v. Brand X Internet Services (2005)

Takeaway: An agency need not follow a court's interpretation of a statute unless the court found that the statute was unambiguous and had only one possible interpretation. FACTS: ***Under the 1996 TeComm Act, the FCC had to decide whether digital subscriber lines (DSL) and cable modem services should be classified as "basic service" or "enhanced service." ****Basic service transmits voice or similar "plain language" communications without altering the text, other than as needed to convert it into sendable form and reconvert it to original voice of visual (facsimile) form. HISTORY: **** Telephone companies providing DSL services challenged the ruling as arbitrary and capricious, given the differing treatment of DSL and cable modem services. ISSUE: **Must an agency follow a court's interpretation of a statute if the court did not find that the statute was unambiguous and had only one possible interpretation? RULE OF LAW: a.An agency need not follow a court's interpretation of a statute unless the court found that the statute was unambiguous and had only one possible interpretation. (this addresses step 1 of Chevron question) NOTE: • Creates perverse incentives for the agency, b/c it involves a wider range of agency actions than Chevron deference - incentive to issue vague legislative rule and use Auer deference to protect informal interpretations like guidance. Judges (esp Scalia) worried Exceptions: o Gonzales: Anti-parroting exception. If legislative rule basically parrots substantive statute, then NO Auer deference.

Chenery I (1943)

The reasons justifying the rule must be those given by the agency at the time the rule was promulgated. Agencies cannot justify rules based on reasons supplied post hoc in legal briefs.

Barnhart v. Walton (2002).

Topic: Informal Agency Decision - Borderline Case - whether to apply Chev. def. FACTS: Disabled teacher gets job as cashier. Statutory interpretation question for length of impairment and gainful employment. ISSUE: Whether the statute should be interpreted as the inability to work for 12 months or a medical impairment for at least 12 months? HOLDING: When contained in an opinion letter, an agency interpretation of its own statute is not entitled to Chevron deference but is entitled to respect if it has the power to persuade. RULE OF LAW: 5 factor balancing test for whether an informal interpretive rule should get high level Chevron 2 or low level Skidmore deference. a. The interstitial nature of the legal question; b. The related expertise of the agency; c.The importance of the question to the administration of the statute; d. The complexity of that administration; and e.The careful consideration the agency has given the question over a long period of time.

Smyth v. Ames (1898)

Topic: Constitutional fact doctrine FACTS: The Nebraska Legislature set a maximum rate on railroads operating within the state which precluded the railroads from recovering their operating expenses. HOLDING: i.The fixing of rates must be based on the fair value of the property being used by a corporation for the public convenience to ensure the corporation receives just compensation for its service.

Skidmore v. Swift & Co. (1944)

Topic: SCOPE OF REVIEW OF AGENCY'S LEGAL INTERPRETATIONS FACTS: a.Skidmore and 6 others (plaintiffs) were employed as firefighters at a packing plant run by Swift & Co. (Swift) (defendant). The plaintiffs worked daytime shifts, five days per week. As part of their employment, the plaintiffs were also required to stay overnight in the fire hall on the plant's premises three and one-half to four nights per week. HISTORY: a.The plaintiffs sued Swift under the Fair Labor Standards Act, seeking overtime compensation for the hours they spent overnight at the plant. b. Trial court found that as a matter of law, the time the plaintiffs spent overnight on call in Swift's fire hall didn't constitute hours worked. The court of appeals affirmed, and the US Supreme Court granted certiorari. ISSUE: Must a court defer to a federal agency's interpretation of questions of fact? HOLDING: NO RULE OF LAW: a.A court is not required to defer to a federal agency's interpretation of questions of fact. b.Breakdown- "Legislative Rules" v. Agency Interpretations

General Dynamics Land Systems, Inc. v. Cline (2004).

Topic: Statutory Interpretation TAKEAWAY: The text of a statute constrains a court's determination of the statute's purpose. FACTS: ***In 1997, General Dynamics Land Systems, Inc. (General Dynamics) (defendant) entered into a collective-bargaining agreement with its employees' union, eliminating retirement health-care benefits for General Dynamics' workers, except for those who were at least 50 years old. ***A number of General Dynamics' workers (plaintiffs), who were at least 40 years old but under 50 years old at the time of the agreement, sued General Dynamics for violation of the Age Discrimination in Employment Act (ADEA), which protected workers between the ages of 40 years to 65 years from discrimination due to age. HISTORY: The US Court of Appeals for the 6th Circuit ruled in favor of the plaintiffs. The US Supreme Court granted certiorari. ISSUE: Does the text of a statute constrain a court's determination of the statute's purpose? HOLDING: YES RULE OF LAW: a. The text of a statute constrains a court's determination of the statute's purpose. i.Ambiguity 1.Where there is ambiguity in the text of a statute, a court may look to the a.legislative history b. social history

NLRB v. Hearst (1944)

Topic: [Review of Questions of Law - Application to particularized Facts] FACTS: 1.The publishers of 4 LA daily newspapers (defendants) refused to engage in collective bargaining with a union representing the "newsboys" who distributed their newspapers. o Hearst's newsboys wanted to start a union, but Hearst refused to collectively bargain with them, that they were not employees but independent contractors. Under common law, the newsboys were independent contractors; they were paid commissions, not a fixed wage or salary. HISTORY: *The NLRB found that the newsboys were not independent contractors under the NLRA but were employees under the NLRA and ordered the employer to collectively bargain with them; the employer appealed. ISSUE: When a court considers a question of statutory interpretation during the review of an agency decision, must the court give weight to the judgment of the agency that administers the statute? HOLDING: 1.When reviewing an agency decision involving a mixed question of law and fact, courts review: a.(1) the facts found by the agency to determine whether the agency's conclusion has "warrant in the record" and b.(2) the agency's explanation of its decision to determine whether the decision has a reasonable basis in law 2. Reviewing court must accept an agency's application of a broad statutory term if such application is supported in the record & has a reasonable basis in law RULE OF LAW: Broad question of law: NO DEFERENCE Specific questions of law: DEFER TO AGENCY APPLICATION: 1.Here, a review of the record and the NLRB's findings demonstrates that the board's determination that specified persons were "employees" under the Act has warrant in the record and a reasonable basis in law. a.Definition of 'employee' is for the courts (RM) [pure legal question/pure statutory interpretation

Legislative rules v. Agency Interpretations From NLRB v. Hearst(1944)

Two differences: 1.INTERPRETATIVE RULE a.Procedurally: Does NOT have to go through notice and comment procedure b.Does not get tested/tried by public opinion—it's the agency's best guess at what congress meant by a particular term in a statute c.NOT a binding rule of law - just an agency's statement of its own view of congressional law, judgment of how they predict a case will come out -->only there for guidance d.Gets less deference 2.LEGISLATIVE RULE - aka Substantive rule a.Done pursuant to congressional authorization - congress has allowed the agency to make binding law—this is just as binding as an actual statute b.This is real law that has gone through both authorization by congress and notice and comment - been tested by public commentary c.Gets more deference [usually]

Non-delegation doctrine

When Congress delegates lawmaking power to an agency, it must provide an "intelligible principle" to guide agency action. No law has been struck down on this basis since the NIRA, in 1935. How to distinguish statutes from NIRA, in order to uphold them? 1. Procedural requirements 2. Scope of delegation (one industry vs. whole economy), and 3. Duration of legislation

Citizens to Preserve Overton Park, Inc. v. Volpe (1971) [Overton Park] WHAT IS THE BREAKDOWN OF THE LAW....

When reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider: a. (1) whether the agency acted within the scope of its authority; b. (2) whether the agency's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; c. and (3) whether the agency's action met the necessary procedural requirements.

North American Cold Storage v. Chicago (1908)

[Pre-hearing not required when public safety would be at risk from waiting] Maj: Peckham FACTS: oNorth American Cold Storage Company (Cold Storage) (plaintiff) stored food products for its customers in cold-storage warehouses until the customers retrieved their products for resale to the public. **Cold Storage received a shipment of poultry from a customer. Cold Storage believed that the poultry was safe for human consumption, and that the poultry could be kept safely in cold storage for three months. ISSUE: In an emergency, may a post-seizure hearing about the legality of the government's seizure of a person's property be sufficient to provide due process to the property owner? HOLDING: YES RULE OF LAW: In an emergency, a post-seizure hearing about the legality of the government's seizure of a person's property is sufficient to provide due process to the property owner

Board of Regents of State College v. Roth (1972)

[To have a property interest - need more than desire or abstract need] "LIBERTY" Maj: Stewart FACTS: a. Roth (plaintiff) was hired as an assistant professor of political science at Wisconsin State University for a 1-year fixed term. At the end of the year, Roth was not hired for an additional term. b. POTUS of the University informed Roth that he would not be rehired but gave him no reason for the decision and no opportunity to challenge the decision at a hearing. c. Under Wisconsin law, a state-university employee could acquire tenure rights to employment after four years of consecutive year-to-year employment. HISTORY: a. Roth brought suit against the Board of Regents of Wisconsin State (defendant) in district court claiming, among other things, that the failure to give him notice of the University's reasons for not rehiring him and the opportunity for a hearing violated his right to procedural due process. ISSUE: a.Do procedural-due-process protections apply to a person's interests in a benefit if that person has only established an abstract need or desire for the benefit? HOLDING: NO RULE OF LAW: a. PROCEDURAL-DUE-PROCESS- protections apply to a person's property interest in a benefit if the person has a legitimate claim of entitlement to the benefit and not merely an abstract need or desire for the benefit. APPLICATION:

Goldberg v. Kelly (1970)

[Welfare benefits are a matter of life or death therefore need pre-hearing] pg 798 > Case illustrates the breadth of what is property. Maj: Brennan Facts: Plaintiffs alleged that their dependent children benefits were wrongly terminated because they received no notice or hearing in advance of termination. There was, however, the option for an oral hearing post-termination. Issue? Was a pre-termination evidentiary hearing required to satisfy procedural due process requirements? Holding: Yes RULE OF LAW: Only a pre-termination evidentiary hearing provides the recipient with procedural due process. o The critical factor is that the termination of aid pending resolution of a controversy might deprive an eligible recipient of the very means by which to live while he waits. o Minimum procedural safeguards include adequate notice detailing the reasons for termination and an opportunity to confront adverse witness and present arguments and evidence orally.

Perry v. Sindermann (1972)

[minimal property right due to implied contract (teacher's handbook)] FACTS: a. Sindermann (plaintiff) was a teacher in the state college system in Texas for 10 years. For the last four years of that time, Sindermann worked for Odessa Junior College (Odessa) as a professor of government and social science. Sinderman was employed under a series of one-year contracts and was appointed the co-chairman of the department. b. Odessa's official faculty guide stated that Odessa did not have a tenure system, but Odessa wanted all the faculty to feel that they had a permanent tenure. c. During the '68-1969 school year, Sindermann was elected president of the Texas Junior College Teachers Association. Sindermann then aligned himself with a group that advocated converting Odessa to a 4-year university. HISTORY: a.Sindermann then sued the president of Odessa and members of the board (defendants), alleging a violation of the 1st Amendment right to free speech and the 14th Amendment guarantee of procedural due process. ISSUE: a.Is a state college teacher entitled to procedural due process prior to termination if the teacher has a property interest in continued employment? HOLDING: YES RULE OF LAW: a. A state college teacher is entitled to procedural due process prior to termination if the teacher has a property interest in continued employment.

Breakdown- "Legislative Rules" v. Agency Interpretations From Skidmore v. Swift & Co. (1944)

a. A court is not required to defer to a federal agency's interpretation of questions of fact. b. Breakdown- "Legislative Rules" v. Agency Interpretations i.Legislative rule [SUBSTANTIVE RULE]: The product of an exercise of delegated legislative power to make law through rules. Valid if within the granted power issued pursuant to proper procedure and reasonable as a matter of due process a.Also called substantive rule. Does have to go through notice & comment b..Legislative rules, adopted by agency, have the force and effect of law. The agency's power to adopt it was delegated by Congress via a statute 2. INTERPRETIVE RULE: Any rule an agency issues without exercising delegated legislative power to make law through rules. Not binding on courts but may be persuasive. a.They don't have to go through the notice and comment process. Agency just promulgates it based on its expertise. b.These, by themselves, don't have the force and effect of law. Just the agency's best guess about what it thinks the law of Congress is

Substantial Evidence Test Made from the Universal Camera cases (1951)

a. Means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion (withstand a directed verdict on the ground that a reasonable jury could only have one view of facts) b.Court must LOOK AT THE RECORD OF THE WHOLE (and not just evidence supporting agencies decision as they did in the past; now less deferential than in past = this is a more rigorous test)

Intelligible Guiding Principle [WHAT IS NEEDED IN MEAT CUTTERS CASE 1971]

a.Given to the agency to be bound by, which can be found in the statute, in legislative history or in the context of the situation or problem. i.ALLOWED TO LOOK AT EVERYTHING IN ASCERTAINING A GUIDING PRINCIPLE ii.Here, court looked to media surrounding the making of the statute, speeches, etc.; purpose; factual background; statutory context b.This is a complex administrative system—it's unrealistic to think Congress can regulate this price freeze over time. Pragmatically necessary for delegation to the agency

Reagan Order, EO 12,291 (1981)

approach to Pres review of agency RM that survives, though modified: • Have to issue regulatory impact statement prior to RM for all major rules (defined by economic impact, etc.) • RIS must include a full cost/benefit analysis of the rule • Can promulgate rule only if it finds rule's benefits exceeds its costs • Designates OMB as a kind of enforcer for cost/benefit analysis of rules. o Formally OMB under 12,291 could only require agency to include OMB's objections in the administrative record. o Practically had enormous influence b/c of delay and influence on appropriations: no rule could be promulgated until OMB finished its review, and no time limit on OMB

Congressional Powers.... Non-Delegation Doctrine

i. By vesting all "legislative powers" in a "Congress of the US," the Const seems to create a non-delegation doctrine 1.No provision expressly says Congress cannot delegate its power to others 2.However, courts have suggested such a prohibition

2. Judicial tests/standards applied to agency action/in action [STEP 2 OVERTON PARK 1971]

i. Judicial Test 6 Standards of review of agency roles: 1. Arbitrary: a. Action may not be arbitrary b.Can not abuse of discretion, cannot be out of accordance w/ law. ***LOWEST LEVEL OF REVIEW (Actually varies in its strength) 2. CAPRICIOUS: * PROF. WRIGHT does not see much difference here than w/arbitrary 3. ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH THE LAW: *applied when an agency violates, misunderstands or makes a decision contrary to the law 4. ACTION FAILED TO MEET STATUTORY/PROCEDURAL/CONSTITUTIONAL REQUIREMENTS: a.STATUTORY: agency only makes regulations pursuant to statutes, may not amend them b.PROCEDURAL: Decision must be consistent with agency rules, must follow own procedural requirements whether made by Congress or not. (Arizona Grocery) 5.SUBSTANTIAL EVIDENCE in the record as a whole—more rigorous review: a.ALWAYS review that requires that the decision be made on the basis of an administrative record—made solely on the basis of the compiled administrative record. This is a FORMAL proceeding. Acquired more often in adjudicating contexts than rulemaking contexts. Formal rulemaking is rare—FL East Coast Railway Case. 6.DE NOVO: **even more rare. No deference at all. Start all over. 2 Narrow Circumstances: 1) Adjudication and the agency's fact-finding procedures were inadequate—can trigger de novo. 2) If we are talking about enforcing the rule or applying it 3) Usually, you need clear and convincing evidence. (EX: Presidential pardons)

a. 3 ways of applying HARD LOOK REVIEW —if it's more demanding, it's the hard look doctrine. [PART OF THE APPRECIOUS/CAPRICIOUS REVIEW WHICH IS PART 2 OF OVERTON PARK 1971]

i.ACA §706—Interpreting Arbitrary and capricious—can make it a high standard for what is arbitrary. ii. ACA§ 553—Arbitrary and capricious—have to put notice in the federal record. Could apply demanding standard to this requirement. Can interpret this rigorously. iii.§553—concise and general statement might be construed as being TOO concise or general.

Executive Order 12991

o Presidential announcement that sets guidelines for administrative operations o Cost-benefit analysis required of any regulation ♣ Also analyzes non-monetary impact of legislation o Does not apply to: ♣ Formal rulemaking ♣ Ind. agencies ♣ Laws exempt from EO 12,291 o Influences agencies to pass cost-effective regulation Agency budget requests are channeled through OMB

Industrial Dept, AFLCIO v. American Petroleum Institute (1980) (Benzene Case)

takeaway: Death of Non-Delegation Doctrine [Now it is most deferential] FACTS: 1.The Occupational Safety and Health Act of 1970 (Act) delegated authority to the Secretary of Labor to promulgate standards to ensure safe and healthful working conditions. 2.Pursuant to this Act, the Secretary promulgated a standard to regulate exposure to benzene, a carcinogen. ISSUE: 1.May Sec. of Labor set the lowest possible level for benzene exposure on the position w/o making findings that exposure presents a significant health risk above this level? HOLDING: NO RULE OF LAW: 1. What made this a non-delegation doctrine case was the language a.The statute, puts the burden on the Secretary to show that it is more likely than not that exposure to benzene at higher levels presents a significant risk of health impairment. b.The Sec of Labor must determine, prior to issuance, that an OSHA standard is reasonably necessary and appropriate to remedy a significant risk of material health impairment APPLICATION: 1. 2 statutory sections in this: if you are thinking about regulating Benzene you have to: a.STAGE 1: Section 38—show it's reasonably necessary for a safe, healthy environment. (significant risk) i.This is a threshold determinant. ii.Might be a delegation problem, if agency has too much discretion. b.STAGE 2: w/ regard to toxic pollutants: i.6(b)5: mixture of strong and not strong regulation. ii. Language: "to the extent feasible"... So the extent feasible is much less pro-worker than other language. Mixture of both pro-worker and pro-company. iii. As a result, we don't know what this statute means.

Schechter Poultry v. U.S (1935)

takeaway: Congressional Non-Delegation----- early case i. Facts: Congress enacted a statute empowering the President to create a commission to regulate hours, wages, and minimum ages of employees ii.Issue 1.(1) May Congress delegate lawmaking functions to the executive branch without outlining strict standards for how the executive is to exercise that power? NO 2.(2) Does Congress have the authority to regulate wholly intrastate activities that have only an indirect effect on interstate commerce? NO 2.Commerce Clause-----Purely intrastate activities that affect interstate commerce only indirectly are outside the scope of Congress's authority and remain under the control of the states NOTE- TODAY THIS CASE WOULD BE DECIDED DIFFERENTLY SINCE THERE WAS AN "INTELLIGIBLE GUIDING PRINCIPLE"

FPC v. Texaco (1964)

topic: Can't Wait Until Enforcement Action to Challenge Basic Logic of a Rule FACTS: i. The Federal Power Commission (FPC) (defendant) instituted a notice-and-comment rulemaking process and adopted a regulation governing price clauses in contracts between natural gas producers and pipelines. ii. Texaco (plaintiff) submitted comments in the proceeding. The Natural Gas Act governed the supply of natural gas. The act stated that natural gas suppliers must apply for a certificate of public convenience and necessity and that the FPC "shall set" each such application "for hearing." Texaco applied for a certificate that contained price clauses disallowed by the new FPC regulation. HISTORY: a. Texaco challenged the rejection, arguing that it was entitled to a hearing on its application under the act. The court of appeals agreed and remanded the case to the FPC. The US Supreme Court granted certiorari. ISSUE: a.Through a rulemaking process, can an administrative agency particularize statutory standards that preclude the agency from having to adjudicate applications that do not meet those standards? HOLDING: YES and judgment is reversed. RULE OF LAW: a.Through a rulemaking process, an administrative agency can particularize statutory standards that preclude the agency from having to adjudicate applications that do not meet those standards.

Scenic Hudson v. FPC I and II (1965 and 1971)

topic: Epitome of HLD FACTS: Plaintiff asserted that agency didn't adequately consider alternate plans in developing a power plant. Agency rejected alternate plan in less than 10 pages. HOLDING: ***The agency's discretion in granting licenses is limited by statutory authority. The agency must consider alternative projects even after the close of hearings in order to protect the environment. Ct. said this was insufficient consideration [10 pages] = failed the consideration of alternatives under the arbitrary and capricious" review. ***This is HARD LOOK, b/c agency looked/discussed important problem, but not enough pages. Need substantial evidence!

Soglin v. Kauffman

•The purpose of NOT being vague is allow people a fair opportunity to guide their conduct. •"Misconduct" IS VAGUE - Not enough guidance; leaves lots of discretion in the hands of the Administrator