Q1A.
Agency findings of fact in formal proceedings are primarily governed by the standard set
out in the Universal Camera case. In that case, the organic statue in question was the Taft
Hartley Act, and the Agency was the NLRB. An ALJ reviewed the firing of an employee and
found no anti-union motive for firing the employee, but the NLRB reversed and found an antiunion motive. Justice Frankfurter explained in the decision that the court should consult the
entire administrative record and accord NLRB’s findings with respect, but that the agency
findings must be set aside when the record clearly precludes the board’s decision from being
justified. The findings of fact of the initial adjudicator, in this case the ALJ, are part of the
administrative record and courts and agencies have to give the findings of the ALJs due
consideration. The standard of review in the case was the substantial evidence standard.
Additionally, the Kimm v. Department of the treasury case elaborates on the finding in
Universal Camera. In the Kimm case, a 1995 case from the federal circuit, the Merit Systems
Protection Board suspended an employee’s job and pay for willfully misusing a government
vehicle by dropping his son off at daycare after an ALJ did not suspend the same employee. The
employee petitioned for final review of the decision of the agency, and the Federal Circuit
reversed the finding of the board, emphasizing the importance of the ALJ’s finding of fact
particularly regarding witness credibility.
In the present case, an ALJ held a formal hearing where he attempted to make a finding
of fact through a thoughtful three-day process, based in part on expert testimony and
credibility of witnesses. The RRA Board then reversed the decision of the ALJ and did not give
much reasoning for reversing. The Union’s best argument in this case is that it is similar to both
Universal Camera and the Kimm case. The ALJ in both of those cases, as in this case, based his
decision on a well-researched set of facts and through credible witnesses and expert testimony.
The Court of Appeals should give a fair amount of weight to the ALJ’s findings of fact, as the
Courts of Appeals did in both Universal Camera and Kimm, and reverse the decision.
Q1B.
Rick Jo’s case is very similar to a case called Yick Wo v. Hopkins, a 1886 Supreme Court
case. There, Yick Wo was a Chinese man that had been running a laundry business for twentytwo years who applied for a new city license to operate when his current license expired. The
board of supervisors refused to renew his permit. Yick Wo was then arrested, along with one
hundred and fifty other Chinese laundry business owners for not having special consent at the
same time that eighty other white laundry owners were allowed to continue their business.
Two hundred petitions for license renewals by Chinese laundry operators were denied by the
board while only one white laundry operator’s petition was denied, and she was a woman. The
court held that the application of the license renewal statute was unconstitutional, even though
the statute was constitutional on its face. If a law is applied in a discriminatory fashion, “against
a particular class of persons,” the law is unconstitutional. Additionally, the Fourteenth
Amendment, requiring the due process requirements from the Fifth amendments to apply to
State proceedings, applies to residents of the United States, not just Citizens.
In the present case, one hundred and fifty hearings by ALJs validated songs by European
performers, but three-hundred songs by Latinos, Native American, and Immigrant groups were
denied certification. Similarly to the Yick Wo case, the Rick Jo case the application of the rule
giving guidelines regarding RPMs and other musical elements is unconstitutional, even though
the rule may be constitutional on its face. This challenge is likely to succeed.
Q1C(a)
Step 0 of Chevron asks if the agency in question administers the statute at issue to make
sure that the Chevron doctrine applies to the case at all. There is some case law that expands
on this issue. The first question to ask is whether the law at issue is a statute or a regulation.
Agency interpretation of a gap in a regulation falls under Seminole Rock/Auer deference, which
holds that agency construction of a regulation the agency administers is valid unless plainly
erroneous. Next, the Rapaport case held that Chevron deference does not apply to an agency
interpretation of a statute if the statute is administered by more than just the agency at issue.
Additionally, the Harris County Sherrifs case held that opinion letters, policy statements, agency
manuals, and enforcement guidelines do not warrant Chevron deference. Similarly, U.S. v.
Mead specified that only documents that address ambiguity in a statute that are also given the
force of law are entitled to Chevron Deference.
In the present case, the PRMRMA is clearly a statute, and the RRA is charged with
administering it based on the language of the statute. They are the only agency that
administers the statute. The RRA is interpreting the statute, and not any documents that do not
carry the force of law. Therefore, this case will make it past Step 0 of Chevron.
Q1C(b)
Step 1 of Chevron asks if the statute in question clearly resolves the issue that the
agency attempted to solve. Case law has created two very different tests to answer this
question. The first was laid out in Dole v. Steelworkers of America, a 1990 Supreme Court case.
The Court used tools of statutory interpretation to determine the intent of congress in the
statute, and expressed that a Court has a duty to use every tool of statutory interpretation at its
disposal to assess if the statute has a gap that the agency needed to fill, and have a high level of
confidence that the statute is unclear before moving on to Step 2 of Chevron. This test was
repeated in the 2000 case FDA v. Brown and Williamson Tobacco Co. The other test was
outlined in the 1991 Supreme Court case Pauley v. Bethenergy Mines. The case addressed the
black lung benefits program administered by the SSC. The provision at issue stated that a
company could rebut eligibility of a miner to benefits from the program if evidence showed that
the miner’s black lung did not come from coal mining or if evidence showed the miner does not
have black lung. The Court held that the meaning of the statute must “hit you over the head
immediately,” and must be obviously intended by Congress in order to stop the Chevron
analysis at Step 1 and not continue on to Step 2.
In the present case, the statute states five possible ways for the RRA to analyze whether
a song is “Classic Rock.” The language of the statute gives the agency some flexibility in
determining what is an what is not classic rock. The object of the statute, in essence, is to
preserve a unique art form that represents many different pieces of America’s history and
diversity. The RRA employs highly trained musical experts, historians, songwriters, conductors,
musicians, statisticians, musicians, and lawyers to make their decisions. The statute is clear in
that it lays out many defining characteristics of Classic Rock, but specifies that the agency can
use multiple ways to analyze whether a song is “Classic Rock.” Therefore, the RRA is most likely
filling a gap that Congress left for it to fill – determining which songs are Classic Rock based on
possible guidelines. This case will most likely make it past step 1 of Chevron, therefore, under
both the obviousness test and the high level of confidence test.
Q1C(c)
Chevron Step 2 specifies that courts should not substitute their judgement for that of
the agency if the agency’s interpretation is permissible, or reasonable, based on the
construction of the statute. The only Supreme Court case in which an agency decision under
Chevron Step 2 was not considered reasonable was in Utility Air Regulatory Group v. EPA, in a
decision written by Justice Scalia. The case ruled ruled that the EPA exceeded authority when
interpreting the Clean Air Act to require prevention of significant deterioration and Title V
permitting for stationary sources based on their greenhouse gas emissions, but they may
continue to treat greenhouse gases as a pollutant subject to regulation under this chapter for
purposes of requiring the best available control technology for "anyway" sources. The Court did
not defer to the agency at Step 2 because the Court felt that the EPA rewrote unambiguous
statutory terms, which qualified as unreasonable interpretation.
The agency’s determination that “Beat it” is a Classic Rock song should qualify as
“reasonable.” Although “Beat it” is at the tail end of the golden age of classic rock, it is still well
within those expert limits. Although the song is generally considered “pop,” the song meats
most of the other possible ways for the RRA to analyze songs under the PRMRA. Therefore the
song stands a chance of being reasonable.
Q1C(d).
The only other two legal standards to analyze the RRA’s determination are the Auer/Seminole
Rock standard for regulations, and the Skidmore standard which applies if Chevron does not.
Under Skidmore deference courts review an agency's (1) thoroughness (2) validity of reasoning
(3) consistency and (4) factors of persuasion to determine if agency decision was correct. This
case would most likely be upheld under Skidmore deference as well. It is thorough, contains
valid reasoning, is consistent with the statute, and is very persuasive.
Q1D.
Rulemakings apply to broad groups of people and are lasting decisions that continue to apply.
On the other hand, adjudications are on a case by case basis and apply usually to only
individuals. The process of certifying songs as classic rock, even if it is only a few songs, is part
of the regulation requirement under the statute and has a lasting effect on the collection of
certified Classic Rock songs under the statute. Therefore, it is more appropriate that the agency
used a rulemaking.
Q1E.
The recission of a rule is governed primarily by the Motor Vehicle v. State Farm case. The case
hinged on the question of whether the National Agency for Health and Safety acted arbitrarily
and capriciously when it rescinded a rule requiring seatbelts in vehicles. The Court held that the
agency is required to provide a reasonable and reasoned analysis for the change, and to
examine the relevant data and explain a rational connection between the facts found and the
recission of the rule. If the agency does not give a reason, the recission should be reversed on
“hard look” standards.
Add in midcontinent nail
In the present case, the RRA abruptly rescinded the standard and did not notice anyone,
conduct notice and comment rulemaking, but just issues a simple short final rule. The Court
should rule that the RRA’s decision was arbitrary and capricious and clearly based on political
motives, as the agency clearly did not take a hard look at the data surrounding the decision to
rescind the rule.
Q1F.
The Vermont Yankee case outlined that informal rulemaking procedures need to be
mased on a written conversation, and give detailed notice of their plan to the public. Further,
the Connecticut Light and Power Co. v. NRC case held that final rulemakings must be a logical
outgrowth of the rule as proposed. Moreover, the Portland Cement case outlined that agencies
must “show their whole hands” at the time they promulgate notice of proposed rulemaking by
disclosing as much relevant data as they currently possess.
Vernal pools case, united mine workers, shell oil (marked shift in emphasis between
the propose and final rules)
In the present case, the RRA did not issue any data surrounding their NoPR, do not have
a written record that supports their reasoning for the proposed or final rule. Although the RRA’s
NoPR does say that RMS would be limited to a value between 40 and 90, and a cap of 70 could
have possibly been a logical outgrowth of the original rulemaking, the final rule does not
appropriately consider information introduced during the notice and comment period from the
UCRM that was carefully researched.
Q1G.
Similar to Am. Radio relay league with the redacted stuff.
Even if study wasn’t published for public comment, it can use the study and it is a logical
outgrowth. (vernal pools)