(3) INTEPRETIVE: Chevron
2.
Mead
Did agency examine relevant data and
articulate satisfactory explanation for its
action?
and, Rational Basis: “rational connection
between facts found and choices made”?
★★★
4 WAYS TO FAIL APA §706(2)(A)
1. Agency relied on factors Congress didn’t
want agency to consider
2. Agency failed to consider part of the
problem
3. Explanation given was counter to
evidence
4. Explanation was so implausible that it
can’t be attributed to agency expertise
YES
YES
PRONG 2: Did agency act w/ force of law?
Ø Did the decision have the force of law?
Ø Fairness & deliberation?
Ø Issued pursuant to delegated authority?
Ø Formal proceedings that “foster… fairness and
deliberation?
YES
NO
Statute is ambiguous.
Well, then does the
agency have authority
to interpret the
ambiguity?
Congress gave EXPLICIT DELEGATION
IMPLICIT
to agency to interpret; check State Farm test DELEGATION
★★★
GOOD ACTION
Courts are generally more deferential to the
agency because:
1. Maintains the separation of powers
2. Judge’s are not experts in the agency’s
field of work, defer to agency expertise
3. Agencies are accountable
Congress left gap in
statutory scheme
YES
1983 STATE FARM
2001 MEAD
APA §556, 557
Adversarial
“you got FERC’d”
APA §554
Similar to trial with
judicial opinion,
APA §553
notice & comment
with good cause
exception
YES
No ambiguity.
Issue clearly
defined in §§
APPLY
CONG. MCI
Chevron
STEP TWO: Is the agency’s
interpretation reasonable?
APA §553(b)(A)
v Interpret(at)ive rules
v general statements of policy
APA is the default baseline, but
Congress free to enact procedural
provisions over the APA
FORMAL RULE
FORMAL ADJUDICATION
Chenery challenge was that
agency should have done
INFORMAL RM’ing
INFORMAL RULE
INFORMAL ADJUDICATION
Florida RR didn’t have the
“magic language” to bump
it to FORMAL RM’ing
Nova Scotia did INFORMAL
RM’ing wrong; failed here
NOTE RE: Chevron
Consider how to
frame the question.
There are multiple
starting points, so this
is not a linear process.
Starting points noted
by deez starz ★★★
INTERPRETIVE RULE
POLICY STATEMENT
American Mining challenge
was that agency should
have done INFORMAL
RM’ing but did not
Hudson v. FAA stated that a
policy statement is a
publication of an agency’s new
approach to enforcement
SCALIA: “[Court judgment] will lead to ossification of large portions of our
statutory law. Where Chevron applies, statutory ambiguities . . . create a space
for the exercise of continuing agency discretion . . . What a court says is the law
after according Skidmore deference will be the law forever, beyond the power of
the agency to change even through rulemaking.”
1944 SKIDMORE
NONLEGISLATIVE
NO APA!
NO
Informal action gets some
respect but not precedential.
Judicial deference (scrutiny)
based on persuasiveness:
1. thoroughness of
agency's investigation
2. logic and validity of
reasoning
3. consistency of its
interpretation over time
4. formality, expertise, etc.
NO
Agency interpretation reasonable if:
1. Regulatory scheme is technical and complex
2. Thorough, reasoned, detailed consideration
3. Reconciled conflicting policies
NOTE: If the court finds that an agency’s action is impermissible, the
court will vacate/reverse/remand to the agency for further review.
ADJUDICATION
Skidmore
Chevron
STEP ONE: Did Congress speak
directly on the issue?
Ø Use all tools of statutory
interpretation tools
RULEMAKING
FORM
1.
“OFF the grid”
LEGISLATIVE FORCE OF LAW
PRONG 1: Did Congress intend for the agency to be
able to act with the force of law regarding this
subject matter?
Ø Look at organic or statute at issue to see if
Congress granted authority
FORCE OF LAW
State Farm
Arbitrary and Capricious Standard
Agency action consistent with statute and procedural
requirements, but was so unreasonable to be “arbitrary
and capricious, an abuse of discretion, or otherwise not
in accordance with law” APA §706(2)(A)
(1) PROCEDURAL
APA challenge to legislative rule, policy
statement
“ON the grid”
Did Congress intend for action to earn judicial deference?
★★★
Congress gave EXPLICIT DELEGATION to agency for this action
“ON the grid”
Ø Court reviews record “hard look”,
deferential to agency reasoning
Q3: OTHER
CHALLENGES?
Q2: WHAT WAS THE
AGENCY ACTION & DID
IT FOLLOW THE APA?
Agency action was based on an
impermissible interpretation of statute
“OFF the grid”
(2) POLICY
Problem with agency’s policy choice
INFORM
Q1: DID THE
AGENCY ACT?
1984 CHEVRON
GO TO
NEXT
PAGE
1994 MCI v. AT&T
passive restraints, airbags case
customs: “day planners are bound diaries”
overnight FLSA overtime
“stationary src” bubble or smokestack
“baby bell” SCALIA applies Chevron
ISSUE: standard of review used
for assessing an agency’s
substantive policy choices?
HOLD: agency rule is arbitrary
and capricious if 4 factors
ISSUE: Should a tariff classification get judicial
deference? (Skidmore versus Chevron choice)
HOLD: gets Chevron deference when Cong.
intended that action to have the force of law
and action is taken pursuant to intent
ISSUE: What influence should an agency action
that is “off the grid” on judicial interpretation?
HOLD: judicial deference is given based on the
persuasiveness of agency action; sliding scale
that accords the agency some respect
ISSUE: How much deference do we give an
agency’s interpretation of a term in §?
HOLD: depends on if Congress speaks to the
issue (use Congress), explicitly delegated to
interpret (check A+C), implicit (reasonable)
ISSUE: Does “modify” mean “waive”?
HOLD: stops at STEP ONE, Cong. spoke
to issue by saying “FCC may modify any
req” modify ≠ waive; STEVENS dissent
purposivist, encourage competition!
LEGISLATIVE
RULEMAKING (“Rule”)
ADJUDICATION (“Order”)
FORMAL
APA §556 HEARINGS
APA §557 PROCEEDINGS & RECORD
APA §554 ADJUDICATIONS
Single judge or panel of judges, similar to a trial
v EX: EEOC speaker, NLRB order re: grad student overtime
onerous and time-consuming process
v EX: FERC (“you just got FERC’d”)
Agency only required to do formal RM’ing if Congress uses
the “magic words” of “on the record after opportunity for an
agency hearing”(see Florida E. Coast RR)
“ON THE GRID”
APA §553 RULE MAKING (N&C RM’ing most action!)
(a)
(b)
INFORMAL
(c)
(d)
(e)
v
PROCEDURAL
“housekeeping,” military, foreign affairs exceptions
General notice of proposed rule making published in CFR,
unless subjects already notified. List of necessary elements w/
“OFF THE GRID” exceptions (see below)
notice & comment procedures and opportunities
Publish at min 30d before effective date w/ exceptions:
substantive rule granting an exemption or relieves a
restriction; any “OFF THE GRID” or “good cause”
Right to petition for issuance, remand, repeal of rule
EX: APHIS cow disinfectants, DOE same sex classroom
Chenery II: (“Chenery choice”) agency can choose between any
RM’ing and adjudication as long as no abuse of discretion or
statutory directive to do a RM’ing [re aff’d by Bell Aerospace]
Ø Chenery I (“no post hoc justifications) agency can’t
give a justification for its action while under judicial
review
⃠ APA!
Informal adjudications do not have any relevant APA provisions, contains
“everything else” where the decision-making process does not have to be
done on the record after an opportunity for hearing.
v EX: Plan B letter
v EX: customs ruling letters (like an actual judgment without trial
process) in Mead
Florida E. Coast RR: if the words “on the record
after opportunity for an agency hearing” appears,
agency must do FORMAL RM’ing; APA is the
default, Congress may require an agency to do
more or less than required
dotted border denotes actions that
generally FAIL Mead PRONG 2
Nova Scotia: agency must follow APA §553 process
(agency ignored comments here), relevant data
relied on in RM’ing should be exposed to interested
parties (“stakeholders”) for meaningful comment
NONLEGISLATIVE
APA §553(b)(A) RM’ing EXCEPTIONS
“OFF THE GRID”
(b) Cont’d: Except when notice or hearing is required by statute, this subsection does not apply—
A. to interpret(at)ive rules, general statements of policy, or rules of agency organization, procedure, or practice; or
B. when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.
INTEPRETIVE RULE
POLICY STATEMENT (CATCHALL)
Statement that interprets the language of a statute or clarifies an existing
obligation under existing legislative rule. Is binding and has full force of law
w/o creating new duty.
Statement of general or particular applicability and future effect; not
issued legislatively and is not an interpretive rule. Catch-all creating new
policy w/o binding legal effect.
American Mining: If YES to any of the following, then the
interpretive rule FAILS and is considered LEGISLATIVE:
1. Imposes a new obligation or creates new duty?
2. Published in the CFR? (legal effect)
3. Has agency invoked (used) its legislative authority?
4. Effectively amends an existing legislative rule?
Hudson v. FAA: If YES to any of following, then policy
statement FAILS and is considered LEGISLATIVE:
1. Did the agency have intent to bind?
2. Has the agency given the policy statement
binding effect?
APA challenge to legislative rule, policy statement
SEC v. Chenery II Corp. (1947)
On remand, SEC reached same result as before but
based on the standards of the Holding Company Act
ISSUE: Did this result need to be reached through
RM’ing? Can adjudication have retroactive effect?
HOLD: Choice between rulemaking and adjudication is left to
the informed decision of the agency as long as there was not
abuse of discretion or statutory directive to do a rulemaking
then agency is free to choose adjudication
US v. Florida E. Coast RR (1973)
ICC set per diem rates by N&C RM’ing, FECR challenge
ISSUE: Did Interstate Commerce Act require the ICC to
have an on the record hearing before issuing a rule?
HOLD: the phrase “after a hearing” in the ICA did not require
the ICC to do a formal rulemaking. Must say “on the record after
the opportunity for an agency hearing.”
US v. Nova Scotia Food Products Corp. (2d Cir. 1977)
FDA promulgated a time-temperature-salinity
regulation for processing hot-smoked whitefish
brought an enforcement action against respondent
who did not follow the regulation because it would
have made the fish inedible.
ISSUE: Respondent had alleged that the agency’s ignoring
comments and suggestions during the rulemaking process and
reliance on undisclosed evidence violates the procedures set
forth by the APA §553
HOLD: Failure to comply with the procedures designated by the
APA for the rulemaking process invalidates rule. Scientific
material supporting rule should be released to interested
parties for meaningful comment; agency must answer
important comments regarding the feasibility of the proposed
rule and consider alternatives. THE ONLY ONE WHERE π WINS!
American Mining v. MSHA (D.C. Cir. 1993)
American Mining sued on the theory that the
agency’s position that certain x-ray readings
qualified as diagnose of lung disease w/in meaning
of reporting regulations was an improper exercise
of legislative authority. (Did not RM or adjudicate!)
ISSUE: Whether MSHA’s issuance of its interpretive rule was
actually an impermissible exercise of legislative authority
HOLD: 4-part test to see whether rule is legislative. Interpretive
rule was NO to all 4; was a clarification re: “diagnosis” definition
Hudson v. Fed. Aviation Admin.(1999)
FAA issued a statement saying that computer
models could be used as an acceptable alternative
to doing actual demos of evacuation plans.
ISSUE: Hudson said that this should have been done
through RM’ing because it carried legislative force
HOLD: Because there is no actual dispute as to the rule’s
meaning, the policy statement did not have binding effect and
the FAA was not required to proceed through a RM’ing. “This is
not a different interpretation of the regulation, just an
application of the regulation to a changed situation which calls
for a different policy.”