Administrative Law Outline
Session 1: Introduction and Overview Administrative Procedure Act (Appendix B); pp.
1-8; pp. 1004-1011 (Franklin v. Mass); FDA v. Brown & Williamson (TWEN).
★ Administrative Procedure Act: The Administrative Procedure Act (APA) governs the
process by which federal agencies develop and issue regulations.
○ § 3 of the APA, 5 USC § 552, addresses the procedural formalities that agencies
must employ when making decisions. There is a distinction made between (i)
general regulations made through the process of rulemaking and (ii) case-by-case
decisions made through the process of adjudication.
○ § 10 of the APA, 5 USC §§ 701-706, deals with judicial review of administrative
agency decisions. Reviewing courts determine whether agency officials acted in
compliance with relevant federal statutes and whether the agency’s actions were
“arbitrary, capricious, or an abuse of discretion.”
○ The main APA procedural models are rulemaking and adjudication.
○ Agencies have a great deal of discretion over which mode to use although
adjudication is required before an agency may issue an order directed at a
particular party and rulemaking is required before an agency may issue a decision
denominated a rule.
○ Where no particular procedural models statutorily or constitutionally required
agencies may make decisions informally for example without using either
adjudicatory or rulemaking process. Because the APA divides all agency action
into rulemaking and adjudication, informal agency action is often referred to as
informal adjudication.
★ Reviewability
○ APA 704’s grant of Judicial Review: Provides for judicial review of agency action
made reviewable by Statute and final agency action for which there is no adequate
remedy in court. This statute creates a strong presumption of reviewability of
final agency action. In essence it provides a cause of action for judicial review of
final agency action where no other statute provides review.
(1) Agency Action made reviewable by statue
○ If a statute other than the APA such as an agency enabling act, provides for
judicial review of a particular agency action the action is reviewable. absent
contrary statutory provisions requirements including chapter 7 of the APA
including standards of review govern the remaining issues in judicial review.
(2) Final Agency action for which there is no other adequate remedy in court:
○ If Congress has provided a remedy other than APA judicial review for particular
agency action then APA review is not available.
★ Franklin v Massachusetts: Agency Action: Review under the APA is available only for
Agency Action. (p.41)
○ The President is not an "agency" under the Administrative Procedures Act and
therefore, is not subject to review under the APA for abuse of discretion, although
the Presidency is subject to constitutional review.
○ Agency: Agency means each authority of the United States except, Congress,
civil and Military courts in the governments of territories and possessions of the
United States. APA 706 (b). Despite the absence of an explicit exemption, the
Supreme Court has decided that the President is not an agency within the meaning
of the APA.
○ The President Is Not an “Agency” Even though the President is not listed among
the exceptions to the APA’s definition of “agency,” the Supreme Court held that
the President is not considered an “agency” except where Congress explicitly
states. The Court was concerned with issues of separation of powers and undue
judicial interference with presidential functions. As a result, the President’s
decisions are not reviewable under the APA for abuse of discretion; they are,
however, subject to review for violation of provisions of the Constitution.
★ FDA v Brown & Williamson: Extraordinary cases must be decided in light of a special
history importance of the statutory issue under review.
○ In determining whether Congress has specifically addressed the question at issue,
a reviewing court should not confine itself to examining a particular statutory
provision in isolation. The meaning, or ambiguity, of certain words or phrases
may only become evident when placed in context. The words of a statute must be
read in their context and with a view to their place in the overall statutory scheme.
A court must therefore interpret the statute as a symmetrical and coherent
regulatory scheme, and fit, if possible, all parts into a harmonious whole.
Similarly, the meaning of one statute may be affected by other Acts, particularly
where Congress has spoken subsequently and more specifically to the topic at
hand. In addition, the reviewing court must be guided to a degree by common
sense as to the manner in which Congress is likely to delegate a policy decision of
such economic and political magnitude to an administrative agency.
○ The court rejected the FDA's assertion of authority to regulate tobacco products in
spite of the fact that the tobacco products pretty clearly fell within the statutory
language under which the FDA claimed Authority. The court noted that over
many years Congress had Enacted 6 tobacco specific pieces of legislation while
the FDA continually denied that it had jurisdiction to regulate tobacco products.
The court also noted that the question wasn't of a deep economic and political
significance. In light of tobacco's unique legal and political history the court
concluded that it was no ordinary case until the congress's intent to deny the FDA
jurisdiction was clear from the overall history structure of the tobacco legislation.
○ Categorizing Long-standing interpretation of Food and Drug Laws As not giving
the FDA authority to regulate tobacco as evidence that Congress did not intend to
Grant the FDA General regulatory power over tobacco.
Session 2: A Brief History of Administrative Law Pp. 17-25; Marbury v. Madison (TWEN)
Session 3: Congress and the President (herein of Self-Delegation; and Such Pp. 161-181
(INS v. Chadha, Bowsher v. Synar); Clinton v. New York (TWEN); REINS Act (TWEN)
The legislative veto and review of regulations
● The Legislative Veto Defined: Under the legislative veto Congress reserved the
power to reject agency action with a vote depending on the particular provision of
both houses of Congress by one house of Congress or in some cases even by a
single congressional committee. Congress and employees the legislative veto to
control agency action
★ Ins v. Chadha
○ The Supreme Court held a one house legislative veto unconstitutional. The
House of Representatives vetoed the decision of the Attorney General to suspend
chadhas deportation. The Court held that the one house veto violated the
bicameralism and presentment requirements of the Constitution. The Court held
that bicameralism in presentment apply to all congressional actions that affect the
legal rights and duties of persons outside the legislative branch.
○ The Supreme Court struck down the legislative veto. It held that legislative vetoes
were the equivalent of legislation, since they altered legal rights and duties.
Because they were essentially legislation, the Court held that they had to go
through the process of bicameralism and presentment provided in the Constitution
for lawmaking.
○ All legislative vetoes are unconstitutional. Congress's only constitutional
method of Legally nullifying agency action is through legislation that
passes both the house of congress and is presented to the president.
Congress may not participate in the removal of administrative officials.
● Other than removal via impeachment and conviction the Constitution contains No
Provisions regarding the removal of officials. The court has held the officers of the
United States are not subject to removal by congressional action except by impeachment
by the house and investing by the Senate.
★ Bowsher v Synar:
○ The Court held that the Comptroller General, an official special subject to
removal by joint resolution of Congress (with presentment to the president) could
not exercise Authority Under the laws of the United States and thus cannot
establish potentially binding spending reductions under the balance and budget
deficit Act of 1985. This would violate the separation of powers because
Congress would be interfering in the execution of the laws through the power to
participate in removal of an officer of the United States.
○ Congress may not retain the power to remove (or share in the process of
removing) officials engaged in executive functions other than by impeachment.
For example, a statute required the Comptroller General to determine whether the
annual federal budget deficit would exceed targets in the statute, a matter
involving considerable expertise and judgment. If the deficit exceeded the targets,
mandatory budget cuts followed. The Comptroller General could be removed only
by Congress—not by the President. The statute was held unconstitutional because
the Comptroller General would be engaged in executive action, but Congress
retained the power to control him through its removal power.
★ Clinton v New York :
○ The Line Item Veto: In an attempt to control spending,Congress passed the line
item veto act under which the president was granted the power to cancel certain
items of spending and tax benefits contained in legislation. The president was first
required to sign the bill in which the items were contained. Then the president
could cancel items by transmitting a message to that effect to Congress within
five days of signing the bill. The Supreme Court held this procedure
unconstitutional since it granted the president unilateral power to amend or repeal
legislation.
○ Problem with Line Item Veto: The problem with the line item veto was that
once a president signed the bill passed by Congress the entire Bill became law and
only further legislation by both houses of Congress could amend or repeal it. The
court rejected the argument that the president was merely exercising delegated
authority to decline to spend appropriated funds on the ground that when a
president cancels an item so soon after signing the bill the president is rejecting
Congress's judgment , not further in Congress's policy. The faster president's
power to cancel spending and tax benefit items dependent on authorization from
Congress provides a strong argument that the line item veto does not raise
separation of power concerns. However the court has traditionally been intolerant
of all variations on procedures already contained in the Constitution. The last line
item veto act was probably Doomed simply because it appeared to be a variation
of the veto power contained in the Constitution which allows vetoes only of entire
bills.
★ The Regulations from the Executive in Need of Scrutiny Act of 2011 : The REINS
Act would amend the CRA to require Congress to approve by law all major rules before
they could take effect. Judicial review of actions under the Act would be precluded,
except that a court could determine whether a Federal Agency had completed the
necessary requirements under this chapter for a rule to take effect.
Session 4: Delegating “Lawmaking” Authority (I): Basics and History pp. 27-42 (Panama
Refining Co. v. Ryan; A.L.A. Schechter Poultry Corp. v. U.S.)
I.
New Deal Strict Application: The New Deal witnessed an explosion in regulatory
programs designed to achieve and maintain economic recovery. In particular, the
National Industrial Recovery Act (“NIRA”), passed in 1933, gave unusually broad
powers to the President. The Supreme Court was extremely hostile to this sort of
aggressive interference with the free market.
★ Panama Refining co v Ryan
○ The National Recovery Act granted the President power to regulate the economy
during the Great Depression. One provision granted the president power to
exclude petroleum products from interstate commerce if they were produced or
marketed in violation of State restrictions.
○ In Panama refining v. Ryan This provision was declared unconstitutional on the
ground that it contained no standards guiding the president's decision of whether
to invoke his powers in a particular case. there were no standards in the Act to
guide the President’s exercise of discretion. Although there were various
declarations of policy in section 1 of the Act, the Court found them unduly vague
and conflicting.
○ (Dissent) Justice Cardozo dissented, pointing out that the President’s delegated
power (to ban the shipment of hot oil) was clearly defined—his only discretion
being whether to do so. Cardozo argued that section 1 of the Act provided ample
guidance since it stated that the purposes of the Act were to conserve natural
resources, prevent unfair competitive practices, and utilize the productive capacity
of industry. Since Congress could not, at a given moment, predict whether these
purposes would be served by banning the shipment of hot oil, it had left this
decision to the President
★ A.L.A. Schechter Poultry Corp. v. U.S
○ The court invalidated this provision of the NIRA on the same grounds as it relied
on Panama. ( That it contained insufficient standards guiding the president's
discretion over whether to approve a particular code of Fair competition). The
problem with both Provisions according to the court was that the president could
legally decline to take action under any set of circumstances. ( SP Also relied on
the fact that the codes were drafted by private groups). A broadly stated set of
Statutory purposes was not sufficient to save the statue from invalidation under
the nondelegation doctrine.
○ The second case concerned a NIRA delegation that gave the President power to
adopt codes of fair competition in cooperation with members of an industry.
These codes were to set forth schedules of wages and prices and other rules that
would be binding upon entire industries. This delegation was vastly broader than
the narrow provision in the Panama Refining case and was
Session 5: Delegating “Lawmaking” Authority (II): Contemporary Approaches and
Canons Pp. 42-103 (Benzene Case; Whitman v. ATA; Michigan v. EPA; Gundy v. U.S.; U.S.
Telecom Ass’n v. FCC; AARR v. Dept of Transportation)
The NonDelegation Doctrine
● The non delegation doctrine prohibits excessive delegation of Discretionary
Powers by the Congress to federal agencies and a president. The Constitutional
basis for the non delegation Doctrine is the first time since Article 1 which
provides “ all legislative powers herein granted shall be vested in a Congress of
the United States.” end Pleasant article one's vesting Clause is a separation of
powers notion that no other Federal entity May exercise legislative power.
● Nondelegation Doctrine advances policies that are important to the structure of
the government. As Justice rehnquist emphasizes in a concurring opinion, the non
delegation doctrine (1) forces Congress, the representative branch of government
to make important policy choices; (2) Increases the guidance under which
agencies act; and (3) Facilitates judicial review by requiring more definite
statutory standards against which courts can measure administrative decisions.
Industrial union, AFLCIO v American Petroleum institute ( benzene case).
● Despite the nondelegation doctrine's roots and separation of powers principles, the
important policies and advances from court have been relatively permissive and
allowing Congress to delegate Discretionary authority to administrative agencies.
As Justice Scalia explained in a major decision to find the doctrine “ we have
almost never felt qualified to second-guess Congress regarding the permissible
green pasta judgment that can be left to those executing or applying the law.”
Whitman v American Trucking. Under current law as exemplified by women
Congress need only Justified intelligible principle for the agency to apply to
satisfy the nondelegation doctrine.
★ The Intelligible principle test
○ In Hampton the court stated that a delegation is permissible when Congress “lays
down by legislative act an intelligible principle to which the person or body
authorized to fix such rates is directed to conform.”
○ To determine whether Congress has made the basic policy decision, a court will
look to see whether Congress provided an “intelligible principle” in the statute
authorizing the agency to act. So long as Congress placed some boundaries on
agency authority, delegation is legitimate. If Congress sufficiently and explicit
constrains an agency’s policy-making choices, then the agency is not deciding
policy; rather, the agency is helping Congress implement the policy it chose. If,
however, the delegation is too broad and ambiguous, then the delegation may be
unconstitutional.
○ The intelligible principle provides a standard for a court to use to determine
whether the agency acted within the “limited” authority Congress delegated to it.
○ today, the intelligible principle standard lacks any teeth. The Supreme Court has
only struck down three statutes for violating this standard, and all three cases
occurred in the 1930s during a time of great turmoil for the United States. During
this time, President Franklin Delano Roosevelt came into office promising to turn
things around for the American people. Just five days after his election, Congress
was called into session and enacted five major pieces of legislation after only
forty hours of debate. This rate of speed was unprecedented, and the judiciary’s
reaction to the power grab was hostile, to say the least.
★ The Benzene case: Nondelegation as statutory interpretation
(a) Benzene Holding: In Industrial Union Department versus American petroleum.
The court relied on the non delegation doctrine to narrowly construct the
occupational safety and health administration authority to describe occupational
health and safety standards.The American petroleum Institute in others Challenge
and OSHA regulation that severely reduced occupational exposure to benzene.
The Challengers argued that the rule was not adequately supported by evidence
and the rulemaking record that the reduction was necessary to protect health of
exposed workers.The agency argued that it had a statutory duty to regulate
carcinogens to the lowest possible level of exposure that was technically and
economically feasible. The plurality rejected the agency's position and
constructed the statue in part on non-delegation grounds requiring a threshold
finding of a significant risk in the workplace before the agency was authorized a
problem at a workplace safety standard.
(b) Benzene and the nondelegation doctrine:The plurality stated that without the
significant risk requirement the statue might be unconstitutional under the
nondelegation doctrine. And then delegation violation here would apparently be
the lack of guidance on when the agency was authorized to pursue the goal of a
virtually free risk workplace.
(c) Justice rehnquist nondelegation concurrence: Justice rehnquist Benzene
concurrence argues that the statute violates a non delegation doctrine because the
agency's choice of when to pursue the goal of virtually free risk workplace is
statutorily unconstrained. Justice Rehnquist argued that the court should
reinvigorate the non delegation doctrine because it (1) forces Congress, the
representative branch of government, to make important policy choices; (2)
increases guidance under which agencies Act; (3) facilitates judicial review by
requiring more Define statutory standards.
Attempted Revival of a non delegation Doctrine: American Trucking and Gundy
★ Whitman v. American Trucking Association:
○ Reaffirmation of the Intelligible principle test :
■ The Supreme Court reaffirmed the intelligible principle test for deciding
whether a statute contained sufficient guidance to pass muster under the
nondelegation doctrine And held that the caa's language requiring naaqs
that are requisite to protect the public health with adequate margin of
safety easily needs the test. As Justice Scalia explained, the scope of
discretion 109b1 allows is in fact within the outer limits of our
nondelegation precedents. In fact justice scalia's opinion quoting from his
dissent in Mistretta abdicated review of whether a statute means the
intelligible principle standard. In short we have almost never felt qualified
to second-guess Congress regarding the permits that would agree with
policy judgment that can be left of those executing or applying the law.
○ Rejection of agency limited construction as a cure for nondelegation violations
■ To the Supreme Court and to most observers of the decision, the DC
circuit's remand to the agency to create its own intelligible principle made
no sense in light of the nondelegation primary purpose of ensuring that
congress makes the important legislation decisions. The court stated that
the idea that agency can cure an unconstitutionally Standardless
Delegation of Power by declining to exercise some of that power seems to
us internally contradictory. the very choice of what portion of the power
to exercise would itself be an exercise of the forbidden legislative
authority.
★ Gundy v. United States
○ The intelligible principle test itself came under attack. The sex Offender
registration and notification act authorizes the Attorney General by rule to
determine whether the acts registration requirements applied retroactively to
persons convicted of sex crimes prior to the acts adoption. Gunday sex offender
whose conviction predated the ACT argued that this provision violated the
nondelegation doctrine because it grants the Attorney General boundless
discretion to determine the scope of the acts retroactivity. Gundy urged the court
to abandon the intelligible principle test as an Insufficiently protective of the
boundary between the legislative and executive spheres. a plurality in an opinion
written by Justice Keegan rejected Gundy's invitation and applied the intelligible
principle test to uphold the provision. The plurality disagreed with Gundy's
characterization of the act. Concluding that the Attorney General must apply its
registration requirements as soon as feasible to offenders convicted before the
statute enactment.
○ The majority held that Congress could delegate to the Attorney General the power
to decide whether to apply the Sex Offender Registration and Notification Act
retroactively because it interpreted the Act to require the Attorney General to
implement the Act as soon as feasible.
(a) Gorsuch Dissent: The court should abandon the intelligible principle standard and return
to the traditional understanding that Congress must make the basic legislative decisions.
Leaving to the executive only responsibilities to find facts and fill up details. Justice
Gorsuch Adopted the view that the intelligible principle standard has been abused to
permit delegations of legislative power that on other conceivable accounts would be held
unconstitutional.
(b) Justice Alito’s opinion: The statute satisfied the intelligible principle test, But he stated
that he would be willing to reconsider the intelligible principle test in a suitable future
case. Gundy is not a suitable case because a majority of the court hearing the case is not
willing to reconsider it.
★ U.S. Telecom Ass’n v. FCC
★ AARR v. Dept of Transportation
Session 6: Adjudication Outside Article III Pp. 110-136 (Crowell, Northern Pipeline, CFTC
v. Schor); Oil States Energy
Adjudication within Administrative Agencies
★ Article III: Article III of the Constitution vests the judicial power of the United States in
the Supreme Court and in lower Federal Courts as established by Congress that are
staffed by judges with lifetime tenure and protected compensation. Federal executive
branch officials adjudicate disputes; this practice was expanded significantly with the
creation of admin agencies. Such adjudication is allowed when it does not threaten the
policies and values underlying Article III’s assignment of the judicial power to the federal
courts.
★ Public Rights: Public rights disputes are controversies between a private party and the
government over matters such as government benefits, taxation and immigration.
The adjudication of public rights ( claims against the government) may be assigned to
administrative agencies.
★ Private Rights: Legal disputes between private parties. Adjudication of private rights in
administrative agencies of subject and may occur only under certain conditions
★ Crowell v Benson The first case in which the supreme court approved the
adjudication of a private rights dispute by an administrative agency. Crowell
involved Workers compensation type planes by longshoremen against their
employers. The Crowell Court relied heavily on the availability of judicial review
to sustain the statue.
○ Crowell stands for the proposition that Article III requires in private cases
judicial review of legal issues.
○ Crowell’s Stringent Requirements: In Crowell, The court imposed
relatively stringent requirements, including de novo judicial review for
questions of law and question of jurisdictional fact ( factors that determine
whether the agency has jurisdiction over the dispute).
○ Crowell’s more Lenient Requirements: The Crowell Court held that Art.
III allowed deferential judicial review of an agency’s factual
determinations Concerning the details of employees claims on two
grounds. First the court views the agency's function as similar to that of
masters and juries who often aid article three judges in their fact finding.
Second, assigning the fact finding to an agent might actually preserve
Judicial power by not overwhelming the courts with numerous
controversies while maintaining sufficient judicial control of de novo
review of questions of law and deferential review of facts.
★ Administrative agencies may conclusively adjudicate facts in public rights
disputes: The Crowell court stated that public rights disputes while susceptible to
judicial resolution may be assigned to non article III adjudicators such as
administrative judges.
★ Administrative agencies may adjudicate facts in private rights disputes: In
private rights cases the Crowell court approved agency fact finding on such issues
as the circumstances, nature, extent and consequences of the injuries sustained by
the employee. The Court analogized agency fact finding to fact finding in the
federal courts by juries, masters, and commissioners and concluded that the
constitution did not bar agency fact finding in private rights disputes.
★ Current Law: A Pragmatic Test : Today's courts use a pragmatic test to
determine whether the assignment of adjudicatory functions to an agency violates
the Separation of powers. Various factors determine was the encroachment on the
article three courts just will power is so great as to threaten the separation of
★
★
★
★
powers. There is no categorical bar to adjudication of private disputes in non
article III tribunals.
CFTC v. Schor In Schor the court approved agency adjudication of a common
law counterclaim to a federal statutory claim brought in the same agency. In Schor
the Court employed the following factors and approved agency adjudication of a
private rights dispute:
○ Particularized area of law: Agency Adjudication is more likely to be
Constitutional if it involves a particularized Area of law closely related to
a federal regulatory scheme and does not cut across an entire class of
traditionally judicially cognizable cases. Thus in Schor, the Court
approved agency adjudication of a small category of common law claims
that were closely related to the regulation of the business of marketing
securities.
○ Court Enforcement: Any judgment in a private rights dispute should be
enforceable only by the order of an Article III court.
○ Judicial Review: Judicial review of private rights disputes should be
available in article 3 Court under a standard of review that is stringent
enough to ensure insignificant judicial involvement in resolution of the
dispute. On the question of law, de novo review is preferable.
○ Other aspects of judicial power: The administrative Agency Should
have only those powers necessary to resolve the disputes within its
jurisdictions and should not be empowered with attributes of pure judicial
power- such as the power to issue writs of habeas corpus or with power to
preside over jury trials.
○ Freedom to choose an Article III Court: Parties to a private rights
dispute should retain the freedom to choose Article III court, ensuring that
they are voluntarily presenting their dispute to an administrative tribunal.
Oil States :The Court held that a challenge to the validity of a patent falls into the
public rights category; the grant of a patent has long been viewed as a public right
running from the government to a private party.
The current standard for allowing agencies to adjudicate: For several decades
after Crowell the Court was largely silent regarding Congress’s power to assign
adjudicatory functions to non article III. Over time, the restrictions recognized in
Crowell receded from legal consciousness until a series of separation of powers
decision revived restrictions on adjudication in non article III tribunals. Recently,
the Court has retreated to a much more accommodating approach that recognized
broad congressional power to assign adjudication to administrative bodies except
with regard to the adjudication of state common law actions in federal bankruptcy
court.
Northern Pipeline: A divided court struck down a provision of the Bankruptcy
Act that gave bankruptcy courts jurisdiction over common law claims to which
the debtor was a party.
○ Majority opinion: Congress may delegate adjudication power to non
article III tribunals in only three situations: (1) territorial courts; (2)
military courts and (3) public rights cases. Common law civil actions are
not in any of the 3 exceptions to the vesting of the judicial power in
Article III courts. Thus, the Bankruptcy Act was unconstitutional.
Session 7: Agency Adjudication and its Limits Pp. 345-354 (Londoner; Bi-Metallic); pp.
425-450 (Dominion Energy v. Johnson; Citizens to Preserve Overton Park v. Volpe; PBGC
v. LTV Corp.; Withrow v. Larkin)
● The main APA models are all rulemaking and adjudication.
○ Adjudication: Adjudication is defined as the agency process for the formulation
of an order. Order is defined as the whole or a part of the final disposition whether
affirmative, negative , injunctive or declaratory in the form of an agency on any
matter other than rulemaking or by licensing.
○ Rule Making : Rule making is defined as the agency process for making
amending or appealing a rule. Rule is defined as the whole or part of an agency
statement or general or particular applicability in the future effect designed to
implement, interpret or prescribe the law or policy.
○ Agencies have a great deal of discretion over which mode to use. Although
adjudication is required before an agency may issue an order directed at a
particular party and rulemaking is required before an agency may issue a decision,
nominate a rule.
○ Where no particular procedural model is statutorily or constitutionally required
agencies may make decisions informally, meaning without either adjudicatory
rule making process.
○ Because the APA divides all agency action between rulemaking and adjudication
and formal agency action is often referred to as a formal adjudication.
■ In such cases, the agency must give notice of its decision and provide a
brief explanation.
■ An agency may not rely on an unpublished rule against any member of the
public who lacks actual notice of the rule.
○ If an agency is required to make rules on the record after opportunity for an
agency hearing, the agency must employ formal rulemaking procedures under
which w rule making is conducted in an on the record adjudicatory proceeding.
This procedure is disfavored and courts construe statutes whenever possible not to
require it.
★ Due Process constraints on Choice of Procedure: The choice between rulemaking and
adjudication is influenced heavily by constitutional due process concerns under which
narrow circumstances due process requires adjudication In most cases, however the
choice between rule making an adjudication is left to Congress or to the agency under
delegation from Congress.
○ Londoner v Denver The Court held that an agency with delegated authority to tax
property owners for street paving was constitutionally required to hold individual
hearings. The agency had tax property owners based on the benefit conferred on a
particular piece of property because the agency's decision was particularized to
the situation of each property owner; the court held that due process requires a
hearing with the right to present arguments and evidence.
★ Due Process and Adjudicative Facts: When an agency regulates a party based on the
particular situation of that party due process requires that the party be given an
adjudicatory hearing to present its version of the facts. The particularized facts Are
referred to as adjudicative facts Because they are the type of facts that are found through
an adjudicatory process that focuses on a particular situation or a single or small number
of parties.
○ Bi Metallic Investment Corporation v. State Board of Equalization The Court
held that when an agency imposes a tax on an across-the-board basis without
attention to the particulars of any taxpayer due process does not require
individualized hearings. The Metallica agency increased the taxable value of all
taxable property in the city of Denver by 40%. The court rejected a due process
challenge to the lack of hearing saying that when more than a few people are
affected legislative procedures are sufficient in the normal channels of
government accountability to provide the only practical safeguard.
★ Formal Adjudication
○ Formal adjudication occurs when a statute other than the APA requires the agency
to conduct a hearing on the record, or in certain other specified circumstances. An
administrative law judge (ALJ) presides over formal adjudication proceedings.
The agency must keep a record of the adjudication proceedings, which serves as
the basis for the agency's findings. In addition, the agency carries the burden of
proof and its findings must have evidentiary support. Following the hearing, the
ALJ issues an order based on the findings, which is subject to review by the head
of the agency. If the order determines that the individual is at fault, the agency
may issue sanctions or penalties
○ Chevron and “Hearing:” There were always doubts about the correctness of the
presumption that hearing in the adjudication context always met formal
procedures. Not long after the Chevron decision, the DC Circuit decided that it
should defer under Chevron to an agency's view that the word hearing in its
statute referred to informal procedures. The First Circuit held out for some time
and eventually followed suit, holding that the EPA had discretion to adopt a rule
in eliminating formal adjudication in certain Clean Water Act permit proceedings.
Dominion v Johnson
★ Standards of Judicial Review Under the APA: The APA which governs judicial review
of agency action establishes the standards under which the courts evaluate agency action.
However, in many cases, the agency's Enabling Act contains a provision, establishing a
standard of review that differs from the applicable APA standard, the enabling act
provision takes precedence over the APA Standard.
○ APA Section 706 and Standards of Review: APA 706 directs courts to hold
unlawful and set aside agency action contrary to the Constitution, in excess of
statutory authority or taken without observance of procedural requirements.
Section 706 (2) also directs courts to review the legality of agency agency action
under three standards.
■ (1) arbitrary, capricious and abuse of discretion or otherwise not in
accordance with the law.
■ (2) unsupported by substantial evidence in a case subject to Section 556
and 557 of this title or otherwise reviewed on the record of agency,
hearing provided by statute.
■ (3) unwarranted by the facts to the extent that the facts are subject to trial
de novo by the reviewing court.
★ How to decide which provision of 706 applies: The provisions of 7062 with no textual
guidance on when they apply are applicable to all reviewable administrative action.
Others apply only to those administrative actions specified in the provision. The three
most important substantive review provisions of 706, apply as follows.
○ The substantial evidence test applies only to formal adjudication, and not
formal rulemaking: Section 7062E states that substantive evidence test applies
only to cases subject to section 556 and 557 of this title or otherwise reviewed on
the record of an agency hearing provided by statute. Section 556 and 557 are the
formal adjudication and formal rulemaking provisions of the APA and thus the
substantial evidence test applies only to formal adjudication and formal
rulemaking.
○ De novo review is available when under traditional administrative law
principles a party is entitled to trial de novo in the reviewing court: Section
706 does not tell us when the facts are subject to trial de novo by the reviewing
court. The Supreme Court has specified that de novo review is available only
when:
■ (1) the agency action is adjudicatory in nature and the agency fact finding
procedures are in nature and the agency fact finding procedures are
inadequate or
■ (2) issues that were not before the agency are raised in a proceeding to
enforce non adjudicatory
● Citizens to Preserve Overton Park v. Volpe : De Novo Review
means that the reviewing court makes a decision independently
without deference to the agency action.
★ The record on review: Reviewing courts should not look beyond the record that was
before the agency at the time the agency made its decision. The agency may not support
its decision with information that it did not have at the time it made its decision. SEC v.
Chenery Further, courts prefer to look at the actual documents and other materials the
agency had before it.
○ In Overton Park the SEC of Transportation approved the design of a highway
without any set procedures and announced the decision in a press release.
★ Informal Adjudication: Agencies often decide policy matters and grant or deny
applications or petitions informally, without using either judicatory or rulemaking
procedure. See Overton Park
○ Informal policy making maybe proper when the policy decision is particular
and not a rule: When the agency makes a particular decision that does not result
in a rule, and does not affect the individual in a way that requires more formal
adjudication and may be proper for the agency to act without following any APA
procedural models.In Overton Park, the Secretary's decision to approve the
highway route and design was not an order directed at any particular member of
the public. and it was not a rule that could be falling in other cases the court
rejected the plaintiff's argument that the Secretary was required to make formal
findings and there was no suggestion that the informal procedure used was
inappropriate for that type of decision.
○ APA 555(e) requires a statement of reasons and supports informal decision
making: When the agency makes a decision formally the only procedural
requirements are to notice the decision and a brief statement of the reasons for the
decision.
○ Courts may not add to the requirements in 555: In Pension Benefit Guaranty
v. LTV, the Supreme Court relying on Vermont Yankee held the only APA
mandated procedures for informal adjudication are those specified in the APA
555. courts are not free to impose additional procedures not mandated either by
the agency particular statute or the APA.
Session 8: Presidential Control (I): Appointments
Pp. 183-233 (Buckley v. Valeo; FEC v. NRA; Lucia; Morrison v. Olsen; Edmond; Freytag)
★ Congressional involvement and appointment and removal of executive officials: Art
2, § 2, Cl. 2 provides that “he shall nominate and, by and with the advice and consent of
the Senate, shall appoint all officers of the United States, BUT the Congress may by law
vest the appointment of inferior officers, as they think proper, in the Pres alone, in courts
of law, or in heads of depts.
○ Congress may not appoint administrative officials: In Buckley v. Valeo. The
court ruled that Congress may not participate in the appointment of officers of the
United States. The appointment clause does not allow appointment of officers of
the United States by anyone other than the President, department heads and the
court of law and only the Senate can confirm such appointments.
○ Remedy for improper appointment: In Buckley, the court did not order the
FEC be reconstituted. With properly appointed members rather, the Court held
that because of the improper appointments the FEC could not engage in executive
functions such as rulemaking and enforcement. The court held that only officers
of the United States may exercise authority under the laws of the United States
and such officials must be appointed in accordance with the appointments clause
of the Constitution. The court did not allow the FEC to continue to collect
information and made Reports to Congress. Those activities were held to be
merely an aid of legislation and could be carried on by persons other than officers
of the United States because it is not involved, exercising authority pursuant to the
laws of the United States in ways that would affect persons outside the Congress.
○ Definition of officer of the United States: The Buckley court defined officer of
the United States is any appointee exercising significant authority pursuant to the
laws of the United States.
○ Congressional Appointment of Legislative Officials: The court in Buckley did
not allow Congress and its officials to participate in the appointment of officials
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 United
States such as prosecutorial or rule making authority because they have not been
appointed in accordance with the appointment clause. Therefore the FEC could
not engage in rulemaking enforcement activities, but could receive information
and make Reports to Congress.
★ Congressional involvement in appointment
○ Appointments: The appointment clause of the Constitution provides for
presidential appointment with Senate confirmation of officers of the United
States. The Clause allows Congress to specify that inferior officers may be
appointed by the President alone by heads of departments or the court of law. In
Buckley v. Valeo, the Court held that officials appointed under a procedure not
provided for in the appointment clause may not exercise authority under the laws
of the United States Congress, especially the Senate through its advice and
consent power to exercise significant political influence over the presidential
appointments.
★ The unitary executive theory: The unitary executive theory holds that the Constitution
vests all executive power in the president and thus any attempt by Congress to insulate
officials and agencies from complete presidential control is suspect and probably
unconstitutional.
★ Presidential control of appointment of executive officials: The Appointment Clause
○ Appointment: The President with the advice and consent of the Senate appoints
officers of the United States, Officers of the United States or government officials
who exercise significant discretion pursuant to federal law, Buckley and “ hold a
continuing office established by law.” Lucia Cabinet members and commissioners
of Independent agencies or principal officers because there's no one of the
government hierarchy between them and the President.
○ Principal officers: high level officials in the executive branch such as department
heads and heads of independent agencies.
○ Inferior officers: Low level executive officials who are under the supervision of
other executive officials beneath the president.
Edmond. In Edmond the
court held that judges on a coast guard Court of Criminal Appeals whose
appointments were not limited in the scope or duration or theory officers
primarily because of their work. Their work is directed and supervised at some
level by others who are appointed by presidential nomination with the advice and
consent of the President. In Morrison The court held that an independent counsel
investigating wrongdoing by executive branch officials was an inferior officer
because of the limited scope and duration of the independent prosecutors
appointment, and the Attorney General's removal power.
○ Appointment of Inferior Officers: Unless Congress specifies otherwise, inferior
offierices are appointed via the same procedure as principal officers: by the
President with the advice and consent of the Senate. However the Appointment
clause allows Congress to specify by legislation that inferior officers may be
appointed by the president alone, by the courts of law or by heads of departments.
For example, Congress had specified that the coast guard judges at issue in
Edmond were appointed by the Sec of transportation.
○ Incongruous appointments: In Morrison, the court held that because the
appointment clause provides that courts of law may pursuant to legislation
appoint inferior officers, a federal court may appoint an independent counsel even
though the independent counsel exercises executive and not judicial authority.
★ Separation of Powers and Appointment
○ In Morrison the court decided that separation of powers was not violated by a
federal court's appointment of an independent counsel to investigate the executive
branch. The Court held that investigation and prosecution by an independent
counsel appointed by a court of law would not threaten the president's ability to
properly execute the laws.
Session 9: Presidential Control (II): Removal
Pp. 26—299 (Myers; Humphrey’s Executor; Weiner; Morrison v. Olson; Free Enterprise
Fund v.
PCAOB); Seila Law v. CFPB (TWEN)
★ Removal of Executive Officials: Officers of the United States may not be subject to
removal by congressional action except by impeachment by the House and the conviction
by the Senate. Congress often statutorily restricts the removal of administrative officials
and Congress may delegate their removal power to an official under presidential control
The Supreme Court has held the President has the right to remove executive officials,
subject to restrictions Congress may place on the President’s removal power.
○ Presidential power to remove executive officials: In the absence of statutory
restrictions, the president has the power to remove executive officials at will.
○ Congress imposed restrictions on removal of officials: Congress may under
certain circumstances restrict the president's power to remove executive officials
but congress itself may not retain advice and consent power over removal of
officials or participate in the removal of officials except through exercise of the
impeachment power.
■ Myers v United States: The supreme court ruled that congress may not
statutorily require the President to seek the senate's permission before
removing a local postmaster, an official considered to be performing
purely executive functions. Congress may not restrict the removal of
principal officers.
■ Humphrey's Executor: The Court held that congress may require a
finding of cause before an official exercising quasi legislative and quasi
judicial power may be removed. The quasi judicial and quasi legislative
nature of the functions performed provided a constitutionally sufficient
justification for restricting the president's removal of a principal officer.
■ Morrison v Olson: Congress may restrict the removal of an official
exercising purely executive functions. Morrison greatly increases
Congress power to restrict the President’s ability to remove executive
branch officials.
■ Free Enterprise: Double level of for cause protection impermissibly
reduced the President's ability to control the executive of the law.
★ Separation of Powers and Removal Power.
○ In Morrison, the court stated that congress may restrict the president's power to
remove executive officials as long as the president's ability to carry out his
constitutionally assigned functions is not compromised. The court held that it is
permissible to restrict the removal of an independent counsel to removal by the
attorney general for cause. The court held that the for cause provision and the
assignment of the removal power to the attorney general did not violate the
separation of powers standards.
Session 10: Presidential Control (III): Supervision and Direction Pp. 299-314 (Youngstown,
Jackson opinion; Border Wall Controversy); 317-343 (Executive Orders)
★ Executive control of administrative agencies
○ Inherent executive power: In Youngstown the Supreme Court held that President
Truman inherited power without Congressional authorization to order seizure of
the nation's steel mills when they were threatened with a strikethrough in the
Korean War. Any famous concurring opinion Justice Jackson argues the
president's power is at its greatest when acting pursuant to express or implied
powers congressional authorization and its weakness when acting contrary to
congress’s will. Jackson told you that when the president asks with neither
support nor disapproval from Congress the president's power to act may be
concurrent with congresses and that the lack of congressional authorization does
not necessarily mean that the president is going beyond executive authority; this
is called the zone of twilight.
Part II: Judicial Review of Agency Action
Session 11: Judicial Review--Adjudication Pp. 472-489 (Universal Camera; Allentown
Mack); pp. 498-506 (ADAPSO)
★ Standards of JR are prescribed by APA 706: Unless the agency's particular statute
States otherwise, the standard of review of agency action is determined by applying APA
706.
○ The substantial evidence test apply as a formal adjudication in formal rulemaking
○ Arbitrary and capricious reviews available in most circumstances
○ De novo review applies rarely: when new factual issues properly arise for the
first time on judicial review or when agency adjudicatory procedures are
inadequate.
★ The reviewing Court looks at the whole record: APA :06 direct review course exam
the whole record when conducting judicial review.
○ The records consists of the information the agency had before at the time it made
its decision
○ Post hoc rationalizations for agency action are disfavored because the agency
action is judging the record available the time decision was made
★ Substantial evidence means that relevant evidence as a reasonable mind might
accept as adequate to support a conclusion
○ The substantial evidence test under which agency factual determinations and
adjudicatory hearings are reviewed requires agency decisions be supported on the
record as a whole by enough relevant evidence as a reasonable mind might accept
as adequate to support the agency's conclusion
★ The Chevron Doctrine instructs courts to defer to agency decisions of statutory
interpretation
★ Policy decisions, informal decisions, and notice and comment rulemakings are
reviewed under the arbitrary and capricious test.
○ For agency actions to survive review under the arbitrary and capricious test the
agency must apply the correct legal standard, consider all relevant factors
available Alternatives and explain conclusions on issues raised in the
decision-making process. In addition the decision to reach must not be so
irrational that the court cannot help but conclude the decision was not the product
of the application of agency expertise to the problem.
★ Agency reversals of Administrative Law Judge decisions: In most agencies, initial
adjudicatory decisions are made by an ALJ and must be appealed to a higher level within
the agency ( often the head of the agency) before judicial review may be sought. The
initial decision of the ALJ Is part of the record of agency proceedings that are reviewed
in court. Therefore when an agency reverses the decision of the trier of fact on appeal
within the agency, under Universal camera The reviewing Court must take the reversal
into account in deciding whether the agency decision is supported by substantial
evidence. The ALJ’s Decision weighs against the agency's decision. However the agency
cannot be required to defer to the ALJ judge because APA 557(B) states that “An appeal
from a review of initial decision the agency has all the powers which it would have and
making the initial decision to accept as it may limit the issues on notice or by rule.”
○ Universal camera agency reversal of ALJ credibility findings:Because witnessed
appear only before the ALJ, a problem arises when the agency reverses and
ALJ’s Decision that is based in whole or in part on the witness credibility,
■ The supreme court disagreed with the Court and the Supreme Court
disagreed with the Court of Appeals and held that because the initial
decision is part of the record under the APA, the reviewing court must take
the initial decision maker's opinion into account when deciding whether
the agency conclusions are supported by substantial evidence. Congress
passed the APA’s “substantial evidence on the record as a
whole”provision, intended to make judicial review somewhat less
deferential.
■ Evidence supporting a conclusion may be less substantial when an
impartial experienced xaminer who has observed the witness and lived
with the case has drawn conclusions different from the Board’s than when
he has reached the same conclusion.
■ On Remand: The court of appeals held that since the initial decision was
based in part on a credibility determination, the agency’s reversal of the
decision did not prosper because the evidence supporting the agency's
decision was not enough to overwhelm The credibility findings of the
ALJ. The second circuit reversed its prior decision and refused to enforce
the NLRBs 2 order in the case.
Session 12: Judicial Review—Rulemaking; Choice Between Rulemaking and Adjudication
Pp. 507-517 (NPRA v. FTC); pp. 534-553 (Chenery II; Bowen v. Georgetown Univ.
Hospital); DHS v. Univ. of California
★ Rules promulgated formally may be changed in a subsequent rulemaking: If an
agency adopts a rule in a rulemaking or an adjudication, the agency may change that rule
in a subsequent proceeding. The new rule will be reviewed to determine whether it is
within the agency’s statutory authority and whether the record provides adequate support
for it.
○ Retroactive changes are disfavored: Retroactive changes in agency rules are
disfavored, especially when the changes have material retroactive effect on the
regulated party.
■ In Bowen v. Georgetown, the Court held that the Department of Health
and Human services could not retroactively recalculate Medicare
reimbursement due to hospitals for 1981 and 1982 based on regulation
promulgated in 1984. The court held that the Medicare Act did not allow
retroactive rulemaking and that such rulemaking would be presumed
unlawful absent a specific provision allowing retroactive rules. The court
looks at retroactive agency action that has substantial monetary effects
with suspicion because it upsets settled expectations and entails a great
potential for arbitrariness.
★ Agency power to make policy by adjudication:
○ The choice between adjudication and rulemaking lies largely within the discretion
of the agency. SEC v. Chenery
★ Agency decisions are judged on the reasons stated by the agency: An agency may not
on judicial review defend its decision on the basis that was not relied on by the agency at
the time it made the decision. However if the court remands a matter to the agency
because its explanation is inadequate, the agency may adhere to its original decision if it
constructs an acceptable explanation.
○ SEC v. Chenery: The Chenery family managed and owned shares in the federal
water service corporation. The corporation was in a reorganization under which
holders of preferred stock would ultimately control the corporation. During the
reorganization process, the Chenery’s purchased a large block of preferred stock
on the open market. The SEC conditioned its approval of the reorganization of the
Chenery’s selling their stock back to the corporation. The SEC relied solely on
traditional equity rules governing fiduciary relationships for its finding that the
purchase of the preferred stock while the reorganization was pending was
improper. On judicial review the SEC defended its action with traditional equity
principles and with the arguments based on the policies underlying the securities
law and its expertise in applying those laws.
■ In SEC (1) the supreme court held that traditional equity rules did not
provide an adequate basis for the SEC’s order, and that the SEC could not
rely on its additional securities law justifications because they were not
part of the SEC’s contemporaneous explanation for its action. On remand
to the agency, the SEC reaffirmed its decision but explained itself based on
its expertise in applying the policies underlying the securities law.
■ In SEC (2) the supreme court upheld the SEC indication that the SEC has
made what we indicated in our prior opinion would be an informed expert
judgment on the problem. The Court noted that the lack of a preannounced
SEC rule against what the Chenerys did was not fatal to the agency
proceeding on a case by case basis even if the agency’s action had some
retroactive effect.
1
Session 13: Judicial Review—Agency Procedures Pp. 553-623 (U.S. v. Fla. East Coast
Railway; Vermont Yankee; Shell Oil v. EPA; Portland Cement; Am. Radio Relay League v.
FCC; U.S. v. Nova Scotia Food; Home Box Office v. FCC; ACT v. FCC; Sierra Club v.
Costle; Ass’n of Nat’l Advertisers v. FTC
★ Policymaking in formal rulemaking: When are formal procedures required? APA 553
(C) states that when rules required by statute to be made on the record after opportunity
for an agency hearing sections 556 and 557 of this title apply instead of the subsection
sections 556 and 557 prescribed formal adjudicatory type procedures rule making
conducted under these provisions are referred to as formal or on the record rulemaking,
thus formal rulemaking is required when the agency's Enabling Act requires that rules are
to be made on the record after opportunity for an agency hearing.
○ Presumption against formal rulemaking: There is a strong presumption against
formal rulemaking. Thus unless it is absolutely clear from the statutory language
that formal rulemaking is required usually through use of the formulation “on the
record after agency hearing” or something very similar. Courts will conclude that
Congress intended that the agency be free to use informal procedures under 553
.United States vs Florida East Coast
○ Even statutory language requiring a hearing does not without more add to
553 informal procedures: Even if a statute requires a hearing in formal
rulemaking may be sufficient absence and unambiguous requirement of the
hearing be conducted on the record. The informal procedures of 553 are sufficient
for rulemaking, unless the statute clearly contemplates something more.
■ In Florida East Coast (a case arising under 1(14a) of the Interstate
Commerce Act gave the Interstate Commerce Commission, the power to
make rules after hearing) The railway company may two arguments for
procedures in addition to those specified in 553 first argue that because the
ICA specified the factors that the ICC should take into account formal
rulemaking was required. The court rejected this argument out of hand
since it is easily possible for an agency to take specified factors into
account with formal procedures. Secondly, the railway company argued
that the after hearing language while not triggering full formal procedures
required some kind of oral hearing in addition to 553 notice and comment
procedures. The court also rejected this argument holding that absent
evidence to the contrary when Congress uses the term hearing. It means
the procedures mandated by the applicable APA provision. Here 553
notice and comment procedures. Thus the term hearing means the paper
procedures of 553
■ This decision illustrates the Supreme Court's strong preference for
allowing agencies to proceed with as little procedural formality as
statutes and the constitution will allow.
★ APA 553 Informal (notice and comment) rule making procedures
○ Notice of agency studies: Agencies are required to disclose for public comment
any studies data or other material that the agency relies on in formulating the final
rule.
This requirement is often referred to as the Portland Cement Doctrine after
Portland Cement.This requirement is a notice requirement as well as an element
of a meaningful opportunity to participate through comments. Participation would
not be meaningful if the agency bases its final rule on information not available to
the public Nova Scotia Food
○ Agencies must give notice of internal studies or data on which they rely:
Courts have required agencies to provide notice of any data or studies on which
the agency relies, reasoning that it is impossible to participate meaningfully in a
rule making without sufficient notice of the information the agency is considering.
Nova
★ The problem of ex parte contacts in rule making: Ex parte contacts Consists of
communications from interested parties administrators outside the formalities of the
comment process.The prevalence of ex parte contacts in informal rulemaking raises the
question of whether such contacts violate the APA or some other form of Administrative
Law.
○ What is an ex parte contact? An ex parte contact is a communication by the
interested party to the Administrator made outside the normal comment process.
For example, an interested party may present information or arguments in person
in the administrator's office. Place a telephone calls an administrator or write a
letter directly to the administrator without submitting the letter as a comment,
sometimes agencies themselves reach out to interested parties seeking input and
pending rules, ex parte contacts are made by private parties and very often by
members of Congress expressing their own interests, or the interests of a
constitute.
○ APA rules on ex parte contacts: no provision of the APA prohibits or even
explicitly addresses ex parte contacts with administrators in informal rulemaking.
Sierra Club
★ Ex parte communications by government officials including the president and
members of congress: Agencies are often contacted by executive branch officials and
members of Congress concerning pending rulemakings and other administrative action
because the agencies are part of the political system these ex parte contacts have
presented courts with special problems.
○ The president has a right to information and input in the administrative
process: the President, as chief executive, has a right to receive information from
administrative officials regarding pending rulemakings, and he also has a right to
give input on the substance of rulemakings. Sierra Club. The Sierra Club held
that in rulemakings presidential contact with an agency is allowed unless it
violates due process. Nonetheless, Congress may require agencies to place the
substance of contacts with the President on the public record. The court also
implies that presidential prodding that influences and agencies are not grounds for
over to earning a rule as long as the rule is supported by the record.
○ Congressional ex parte contacts are also allowed: The Sierra Club Court also
approved Congressional contacts with agencies during rulemakings. The court
also thought that if it prohibited an increase in input from Congress during the
pendency of rulemaking proposals, the validity of all rules would be questionable.
★ Prejudgment in rulemaking: the “unalterably closed mind” standard: Courts have
held that decision makers and rule makings must be open to persuasion based on the
comments received during the notice and comment process. Being part of the political
system administrators will naturally have opinions on regulatory matters. However, they
may not participate if their mind is so strongly made up that they have an unalterably
closed mind. To disqualify an administrator.
This showing must be made by clear and convincing evidence. Association of National
Advertisers.
★ Proving an unalterably closed mind: Proving that a rulemaking
decisionmaker has an unalterably closed mind involves showing from
public or private statements made by the decision maker that the decision
maker is convinced that the proposed rule is necessary without regard to
the substantive comments received. The statements must show the
decision maker will not even pay attention to the comments.
○ In the late 1970s the FTC Chairman Michale Pertschuck made
several public and private statements advocating restricting
television advertising aimed at children. In a letter to the FDA
commissioner he stated that children's advertising is inherently
unfair” In a letter to the FDA commissioner he stated that
children's advertising is unfair. When the FTC proposed three
different possible regulatory regimes regarding the television
advertising director children, opponents of regulation Thomas
disqualified the chairman from participating in the rulemaking.
The case ended up in the Court of Appeals for the DC circuit
where the majority held that the chairman should not be
disqualified. The court held that discussing exploring possible
regulatory options, expressing opinions is not enough to disqualify
an administrator and that based on the totality of the chairman's
statement, it had not been established that he had a closed mind.
Association of National Advertisers.
★ Explanation of the decision: the concise general statement: APA 553
requires the agency to incorporate in the rules adopted a concise general
statement of their basis and purpose. The statement must contain a
reasoned explanation of the agency's decision. This is used as a safeguard
against arbitrary agency decision making these requires agencies to give
reasons for rules
○ Agencies must respond to substantial issues raised in the
comments: Courts have required that agencies and they're concise
general statements respond to substantial comments on important
issues in the rulemaking. (Nova).
○ Agencies must state their conclusions on major issues of fact
and policy: Agencies are not required to explain every factual
legal or policy element of the decision. Agencies must inform the
public of their views on the major issues that were decided in the
rulemaking. The concise general statement should cite support in
the record and should identify the policy considerations found to
be persuasive. It is enough if the agency's statement identifies the
major policy issues raised in the rulemaking and coherently
explains why the agency resolved the issues as it did.
■ The rule at issue in Nova dealt with the method for
preparing smoked fish to avoid botulism. The processors of
one species of smoked fish, in the comments to the agency,
stated that the commercial viability of their fish would be
destroyed by the agency’s proposed ( and ultimately
adopted) method. The same processors argued that the
agency was not necessary to prevent botulism in their
species of fish. The agency adopted his proposed method
and did not address the two concerns raised by the
processors regarding their particular species of fish. The
Court of Appeals held that the rule could not be enforced
against no law because the concise general statement did
not explain the agency's conclusion on these major issues
raised in the comments.
★ Vermont Yankee: Rejection of judicial power to require more than
533 procedures in formal rulemaking: In litigation over the licensing of
Vermont Yankee Nuclear
Power Plant, the Supreme Court held that
courts may not require procedures in addition to those specified in the
APA or other applicable statutes.
○ Vermont In the Supreme Court: Courts may not require
procedures in addition to those specified in the APA: On review
of court of appeals decision in Vermont Yankee the Supreme Court
held empathically the court may not require procedures in addition
to those specified in the APA or another statute unless statutorily
prescribed procedures are constitutionally inadequate. The Court
noted if courts had the power to impose procedures in addition to
those prescribed by the APA, uncertainty over the correct level of
procedure would lead agencies to overproceduralize, thus losing
the benefits of 553’s relatively streamlined informal rulemaking
process. This decision spells the end of judicially imposed hybrids.
Session 14: Judicial Review—Exemptions Pp. 623-667 (Mack Trucks v. EPA; U.S. v.
Johnson; Mendoza v. Perez; AMC v. MSHA; PG&E v. FPC; CNI v. Young)
Session 15: “Hard Look” Review Pp. 667-702 (Nat’l Tire Dealers v. Brinegar; State Farm;
FCC v. Fox Telev.); pp. 833-844 (Encino Motors); New York v. Dept of Commerce (TWEN)
Questions of Policy
★ A policy decision is a decision by an agency that determines whether regulation is
necessary or desirable and what level or form of regulation is appropriate.
★ The Arbitrary and Capricious Test: Agencies shall make decisions (1) based on
consideration of the relevant factors including alternatives to the agency’s proposal
suggested by the record (2) without a clear error of judgment (3) under the correct legal
standard; (4) with a satisfactory explanation for their action including a rational
connection between the facts found and the choice made
★ Hard look Review: an application of the A&C test
○ Agencies must apply the correct legal standard: Reviewing courts made for the
agency's understanding of the legal standard governing its actions. Chevron
○ Agencies must consider the relevant factors- those made relevant under the
legal standard
○ Agencies must consider alternatives to their proposals: An element of
reasoned decision making is required that the agency's consider those alternatives
to their proposals that the records suggest. In the Airbags case The Court held that
the agency erred by not considering mandatory airbags and mandatory
non-detachable seat belt as the alternative of not requiring any passive restraints
after it concluded that the detachable belts the automakers plan to use would not
increase automobile safety. Statefarm
○ Agencies must explain their conclusions on issues raised in the decision
making process: As proof that they considered all relevant factors courts require
agencies explained their decision on major issues that are raised during the
decision-making process this includes an explanation adequate establish that the
agency considered relevant factors, that is considered alternatives, and it
considered the comments made during the rulemaking process.
○ The agency must provide the true reasons for its decision: it is extremely rare
for a reviewing court to find that an agency’s stated reasons for its action are
pretextual, an agency action will be rejected as arbitrary and capricious if the
agency does not rely upon the true reasons for its action. Department of
Commerce v. New York. ( Rejecting the Secretary of Commerce is an explanation
for adding citizenship question to the 2020 census as incongruent with what the
record reveals about the agency's priorities and decision making process). Is
extremely rare for a court to find that the agency stated reasons for its actions are
pretextual (a pretext usually describes false reasons that hide the true intentions or
motivations for a legal action.)
○ The relevant factors are established by Congress: The Court has recently made
it clear that agencies should consider only those factors contained in the statue
governing the agency’s action.
○ Agency policy change and arbitrary, capricious review: The Court has made it
clear that the standard of review is not made less deferential when an agency
changes its statutory interpretations. The FCC Recently changed a long-standing
policy concerning the fleeting use of offensive language on television. a
television network that was disappointed by a new policy argued that the set
interview should be heightened if an agency changes its policy. The court rejected
this argument holding the arbitrary and capricious standard is not affected by the
fact that the agency has changed its view. FCC v. Fox (We find no basis in the
administrative procedure or in our opinions for a requirement that all agency
changes be subject to more searching review)
■ The court does however require the agency to show that it is aware of the
change and must provide an explanation for the change. Enrico Motorcars
( agency policy change invalidated because the agency gave no
explanation for the change).
Part III: Statutory Interpretation in the Administrative State
Session 16: Deference Canons Pp. 711-745 (NLRB v. Hearst; Skidmore; Chevron)
★ The Chevron doctrine instructs courts to defer to agencies decisions of statutory
interpretation unless Congress’s intent on the matter is unmistakably clear.
★ Review of Question of Law: Chevron and Beyond
★ Application of law to particular facts: Courts have traditionally shown great deference
to agency decisions involving the application of law to particular facts such decisions are
affirmed if they enjoy warrant in the record, and a reasonable basis in law. Hearst
★ The Chevron Test: In Chevron. The court stated that unless Congress has directly
spoken on the precise issue in question, courts should defer to agencies on questions of
statutory interpretation as long as the agency arrived at a reasonable or permissible
construction of the statute. The court has moderated the directly spoken and precise issue
requirements and stated that courts should not apply Chevron in the face of clear
congressional intent discerned through application of judicial tools of statutory
interpretation.
○ The Clean Air Act involving Chevron regulated permits for the discharge of
pollution from a stationary source. and Chevron the court reviewed the
Environmental Protection Agency's definition contained in a regulation of the
statutory term stationary source. under which an entire factory complex which
might contain several buildings, and numerous smokestacks could be considered a
single stationary source. The challenges argue that each smokestack must be
regulated as a separate stationary source. The court held that Congress had not
directly spoken to the precise issue of whether each smokestack must be regulated
as a stationary source and the term stationary source was ambiguous and the
agency's definition was permissible because it fell within the range of meanings
that stationary source could bear.
★ Chevron Two Step Analysis : Under Chevron judicial review of agency interpretations
of statutes proceeded two steps, the theory underlying the chevron doctrine is that
whenever a statute administered by the agency is ambiguous Congress intends to delegate
interpretive authority to the administering agency.
○ Step One: Step one of Chevron asks whether Congress's intent is clear. If so,
Congress's intent prevails. If the agency's interpretation conflicts with Congress's
intent the court should overrule the agency and replace the agency's interpretation
with Congress's intent. In Chevron itself, the court stated that Congress's intent is
clear only if Congress has directly spoken to the precise question at issue. In later
cases, the court has applied judicial tools of statutory interpretation to determine
Congress's intent. Traditional tools include language, structure , purpose and
legislative history of the statute being constructed, and other interpretive devices
such as the canons of statutory interpretation.
○ Step Two: If Congress's intent is unclear or if Congress is explicitly left a gap for
the agency to fill, then the analysis moves to step two. If a reviewing court
concludes in step one, that the statute is ambiguous because Congress's intent
cannot be conclusively determined. The reviewing court should defer to a
permissible or reasonable agency interpretation.
The reason for deference is according to the court that when Congress writes an
ambiguous statute as administered by the agency, Congress intends to delegate
interpretive authority to the agency. An interpretation is permissible if it is a
sufficiently rational one to preclude a court from substituting its judgment for that
of the agency.
★ When does Chevron apply? In general, Chevron applies agency decisions on statutory
construction of statutes administered by the agency arrived at in the course of rulemaking
and adjudication when Congress intends the agency's decision has a force of law, which
is usually indicated by Congress's requirement that the agency use a relatively formal
procedure, such as formal adjudication or notice and comment rulemaking.
○ Administered by the Agency: Chevron applies only to statutes administered by
the agency whose interpretation is that issue.
○ Agency interpretations of the APA, for example, do not receive Chevron
deference because no agencies charged with administering the APA.
★ Skidmore Deference: Under Skidmore, courts decide how much to defer to agency
interpretative decisions based on the “ thoroughness evidence in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements and all
those factors which give it power to persuade if lacking power to control.
Session 17: Parsing Statutes Zuni Pub. Sch. Dist. v. DoEd (TWEN); pp. 746-781 (Yellow
Transp. v. Michigan; ABA v. FTC; HUD v. Rucker; General Dynamics v. Cline) NOT IN
BOOK
Session 18: Substantive Canons (Federalism, and Such)
Pp. 781-835 (SWANCC; Sweet Home Chapter; Carter v. Welles-Bowen; AT&T v. Iowa
Util. Bd; Rapanos) NOT IN BOOK
Session 19: Chevron’s Domain
Pp. 844-874 (Christensen; Mead; Barnhart)
★ The Mead Doctrine “Chevron Step Zero”: Less formal agency interpretive
procedures and the force of law: The Mead Doctrine is the primary doctrine for
determining when Chevron applies and when it does not. In Mead, the Court refused to
accord Chevron deference to a statutory interpretation contained in a customer service
ruling letter, that although it represented the agency's official position was not based on a
process of rulemaking, or adjudication. Chevron deference is not ordinarily applied to
agency statutory interpretations rendered less formally than in rulemaking or formal
adjudication because according to the court when Congress allows an agency to make
decision formally, it does not intend to delegate interpretive authority to the agency. In
other words, Congress does not intend for informally rendered agency interpretations to
have the force of law.
○ Christensen v. Harris County The court held that Chevron deference did not
apply to an interpretation contained in an opinion letter that the agency wrote in
response to a letter from a regulated party asking whether the statute administered
by the agency permitted a particular course of conduct. Court held that Skidmore
deference applied. A lesser form of deference, which agency interpretations are
entitled to respect, but only to the extent that those interpretations have the power
to persuade.
Session 20: The “Brand X Problem”; Agency Jurisdiction
Pp. 874-914 (Brand X; Home Concrete Supply; City of Arlington)
★ Jurisdictional Issues: Chevron applies to agency interpretations even of statutory
provisions that determine the agency's jurisdiction. All Statutory questions can be
characterized as jurisdictional since they determine whether the agency is acting within
delegated authority. Arlington.
★ Consistency and Contemporaneity of interpretation: The court has made it clear that
agencies are free under Chevron to change their statutory interpretations as long as a prior
interpretation was not found to be compelled by Congress's intent. Brand X
Session 21: Interpreting Agency Regulations
Pp. 914-942 (Auer; Kisor)
★ Agency Interpretation of Agency Regulations: Courts defer to agency interpretations
of their own regulations but not under Chevron. Auer. Under what has come to be called
Auer Deference. A court refers to an agency's interpretation of its own regulations,
unless it is plainly erroneous or inconsistent with the regulation. This difference is
based on the idea that agency expertise and involvement in the process of proglumating
the regulation means that the agency is in a better position than the reviewing court to
determine the meaning of a regulation.
○ In recent years, some members of court questioned the wisdom of Auer deference
on the grounds that it allows the agencies to in effect judge its own case and
encourages agencies' problems, vague regulations, planning to give them more
concrete content via later interpretations issued without notice and comment.
★ Kisor: In Kisor the court expressly declined to abandon Auer deference. In Kisor the
court expressly declined to abandon Auer deference. Instead, an opinion by Justice Kagan
made clear that Auer does not apply unless the reviewing court concludes that after
applying the traditional tools of construction the regulation is genuinely ambiguous, that
the construction is the agency's authoritative position and the construction implicates
agency expertise and the agency's construction reflects fair and considered judgment not
convenient litigation position or a post hoc rationalization.
Part IV: Jurisdiction
Session 22: Standing to Sue, Constitutional
Pp. 1082-1091 (Allen v. Wright; FEC v. Akins); pp. 1102-1138 (Lujan v. Defenders of
Wildlife; Steel Co. v. CBE; Friends of the Earth v. Laidlaw; Massachusetts v. EPA);
TransUnion LLC v. Ramirez (TWEN)
Standing to Secure Judicial Review : A party seeking judicial review must have standing to
sue. In order to have standing the plaintiff must be injured by the challenge conduct and must be
in a position to gain from a favorable ruling. Lujan
★ The Constitutional underpinnings of the standing doctrine:
○ Cases and Controversies: Article Three of the Constitution limits federal court
jurisdiction the cases and controversies. In order to meet article three's cases or
controversies requirement the plaintiff must be seeking to redress an injury that is
sufficient to bring a claim before a court. the injury must have been caused by the
challenge of government or private conduct. the injury must be such that it will be
remedied by favorable judgment, occasionally standing issues arising litigation
between private parties, but they are most common in cases brought against a
governmental entity.
○ Prudential limitations on standing: Prudential standing requires plaintiffs to
raise claims based on individual, as opposed to generalized grievances. This
doctrine, unlike Article III standing, is based on prudential rather than
constitutional constraints. It embodies the federal judiciary’s self-imposed limits
on the exercise of its jurisdiction, so as to avoid judicial intervention on abstract
questions of public significance that might be more competently addressed by
other governmental institutions. Thus, for instance, the doctrine commands that a
party cannot raise another person’s legal rights, cannot adjudicate generalized
grievances that could more appropriately be addressed by the representative
branches of government, and cannot raise claims falling outside the “zone of
interests” protected by the law providing the plaintiff’s right of action.
★ Injury in fact fairly traceable test: The most basic constitutional requirement for
sanding is that plaintiffs have suffered an injury in fact that is fairly traceable to the
challenge conduct and re addressable by favorable judgment.
○ Injury in Fact:The most basic requirement for standing is that the plaintiff must
have suffered an injury to satisfy this requirement. The plaintiff must be
significantly affected by the challenge conduct.
■ An abstract interest is not sufficient for standing: Persons or groups
with an abstract interest in a regulatory scheme did not have standing
without an actual injury. For example, an abstract interest in protecting
endangered species or the environment more generally is not sufficient for
standing. In Lujan a case involving alleged violation of the dangerous
species act the supreme court denied standing to a woman who had viewed
endangered species in the past and planned to try to see them someday in
the future but did not have definite plans. As the court stated such
someday intentions without any description. of concrete plans, or indeed,
even any specification of when the someday will be do not support a
finding of the actual or imminent injury that our case requires.
■ Common law injuries, aesthetic injuries, economic injuries and
deprivation of rights are sufficient for standing: The easiest case for
the existence of standing is an injury to an interest that is protected under
the common law, such as bodily injury or deprivation of property. Injuries
to aesthetic and economic interests are also enough for standing. Lujan
■ Procedural Injury: Procedural injury refers to an agency’s failure to follow
proper procedures. For instance,
a person interested in the substance of a rulemaking might complain that
the agency failed to provide proper notice, in general the denial of a
procedural right alone is insufficient to establish standing. Rather, other
parties may challenge the agency's action for failure to follow.
proper procedures to have standing to do so the plaintiff must have
suffered an injury in addition to the denial of alleged procedural rights.
However, once a procedural violation is established the plaintiff does not
need to prove that the agency decision would have been different had it
followed proper procedures. In other words that redress ability
requirement is less stringent in cases of procedural and injury.
● In Lujan, The plaintiffs argue that denial of procedural rights was
sufficient to establish standing especially because the Endangered
Species Act contains a citizen suit provision granting a right of
action to any person to enjoin any person, including the United
States and any other governmental instrumentality or agency…
who is alleged to be in violation of any provision of this chapter.
16 USC 1540 (g). The Court held that this provision cannot
constitutionally granted to all persons a right to enforce the
procedural requirements of the Endangered Species Act, rather
only those otherwise suffering concrete injury could sue to enforce
the ads procedural requirements.
★ The injury must be fairly traceable to the challenged conduct: The injury must be
fairly traceable to the challenge conduct or in other words, the conduct challenge must
have actually caused the injury.
○ In Massachusetts v EPA the court granted the Commonwealth of Massachusetts
standings a challenge to the EPA's failure to regulate greenhouse gas emissions
from automobiles. The court found that the Commonwealth injury, which was
loss of coastal land due to rising sea levels, was sufficiently traceable to the EPA
failure to regulate even if the EPA could not significantly affect global warming
by cutting automobile greenhouse gas emissions. The court found that even a
small incremental step is sufficient for standing.
Session 23: Statutory (“Prudential”) Standing to Sue
Pp. 1078-1081 (ADAPSO); 1138-1150 (NCUA; Match-E-Be-Nash); Lexmark (TWEN)
★ Prudential Limits on Standing: Prudential limits on standing or judgment doctrines
that limit access to the federal courts beyond constitutional and statutory standing
requirements.
○ The Federal Court should not hear a case involving generalized grievance,
challenging governmental action that affects many people to a small degree with
no plaintiff, injured, any particular sense.A generalized grievance is one that
should be resolved by the political branches, not by the courts
★ Data Processing and the zone of interests test: In Data Processing The court held that
to have standing the plaintiff must show two things (1) a constitutionally sufficient injury
and (2) that the interest sought to be protected by the complaint is arguably within the
zone of interest to be protected or regulated by the statute or constitutional guarantee in
question.
○ Application of the zone of interests test in Data Processing: Data Processing
presented the classic competitors challenged administrative action the
Comptroller of the Currency allowed national banks to sell certain data processing
services to their customers and to other banks. The data processors competitors of
the national banks and data processing field challenge the Comptroller's ruling as
violating statutory restrictions on the activities of national banks. The Court held
that because the statute regarding Banks was concerned not only with the
financial health of the banks themselves, but also the interested parties in the
competition with the banks. The data processors were within the zone of interest
of the statutory scheme and this had standing to seek judicial review.
○ The Zone of Interest’s and citizen suit provisions: A citizen suit provision
Places everyone granted a right of action under it within the zone of interest.
Bennett. So if Congress statutorily identifies a proper party to challenge agency
action, that party is by definition within the zone of interest. Article Three
standing limitations still apply (the party bringing a citizen suit must still meet
injury traceability and redress ability requirements). But the zone of interest test is
not part of Article Three standing. Lexmark
★ The zone of interest test applied: In most cases in which it has come up, the court has
found that the party challenging agency action is within the zone of interest.
○ National Credit Union competing banks are within the zone of interest of statute
regulating the scope of credit union businesses.
○ Lexmark: manufacture of replacement toner cartilages is within the zone of
interest of Lanham Act and thus may assert false advertising claims against
manufacturer printers for what's replacement cartridges or design.
Session 24: Availability and Timing of Judicial Review (I)
Pp. 943-1003 (Johnson v. Robison; Block v. CNI; Bowen v. Michigan Academy; Overton
Park Webster v. Doe; Lincoln v. Vigil; Dunlop v. Bachowski; Heckler v. Chaney; AHPA v.
Lyng)
★ Prosecutorial Discretion (PD) is the longstanding authority of an agency charged with
enforcing the law to decide where to focus its resources and whether or how to enforce,
or not to enforce, the law against an individual.
★ Constitutional challenges to a statute: A statute that precludes judicial review of an
agency action does not preclude a constitutional challenge to the statute itself. Since in
such a case, a court reviews his decision made by Congress, not the agency. Johnson vs
Robinson.
★ Implicit preclusion of review: Courts have found that statutes implicitly preclude review
when the statutes channel review in particular ways or on behalf of particular parties.
○ Implicit preclusion by specifying a particular form of review to particular
agency action: When Congress explicitly grants review of a particular set of
agency actions, this may implicitly mean that Congress has precluded review of
other related agency actions.
■ For example, an agency has the power to suspend and revoke licenses to
sell a product. If a license is suspended. the process continues and
cumulates either for a vocation or decision against revocation, at which
time the suspension ends. If the agency's enabling act explicitly provides
for a view of decision regarding revocation, there's an argument that
Congress has implicitly precluded review of suspension orders.
○ Implicit preclusion by channeling review to specific avenues of
review:Congress specifies a particular Avenue Review and may imply the
Congress, meant to preclude other avenues of review.
○ Implicit channeling for preclusion exists only when Congress is very explicit
concerning review: Implicit preclusion due to channeling of review occurs only
when an agency's Enabling Act is very explicit about who can obtain review, is
very explicit about how review should be sought, or both.
■ In Block Milk handlers, consumers and a nonprofit nutrition advocacy
group sought review of a decision by the secretary of agriculture that
increased the price of certain milk products. The statute specified said that
milk handlers could obtain judicial review but only after they exhausted
remedies provided but the Secretary did not mention any other form of
review of any other potential channeling . The court held that under the
circumstances, review on behalf of parties other than milk handlers was
implicitly precluded by the statute that granted review only to milk
handlers and challenged that review, through the administrative process.
○ Channeling may not prevent challenges to the administration of a program
as a whole or to any other parts of a program: A statute that channels review
of individual determinations under a program might not bar a view directed at the
administration of the program as a whole. Generally, review of determinations
under one portion of the statute does not necessarily preclude review of
discrimination under another portion of the program. In Bowen, the court stated as
a principle of administrative law, that the fact that some administrative actions are
made reviewable by statute does not by itself support an inference that other
actions under the same program are not reviewable.
★ Committed to agency discretion by law, APA 701(A)(2): APA 701 A 2, bars judicial
review of agency action, committed to agency discretion by law.This provision can be
understood in three different ways all of which reinforce the idea that certain decisions
have been left to agency discretion or free from judicial review.
○ The three ways of understanding committed to agency discretion. The three
ways of understanding under viewability based on the conclusion that agency
action is committed to agency discretion by law, are the no laws apply approach,
the deeming clause approach and the traditionally unreviewable approach.
■ No law to apply approach: The original understanding of :committed to
agency discretion by law spelled out in Overton Park, is that judicial
review is not available when the governing statutes are drawn in such
broad terms that in a given case, there's no law to apply. Judicial review is
not possible in such cases because there's no discernible statutory standard
against which to judge the legality of agency action because Congress
normally attempts to give agency statutory guidance this exception to
reviewability at final agency action is rarely met.
● In Webster the Supreme Court held that the decision to fire an
employee of the CIA was committed to the discretion of the
director of the cia because the governing statute, provided the
director the power to terminate the employment of CIA employees
whenever he shall deem such termination necessary advisable in
the interest of the United States was so vague that it did not supply
courts with the law to apply in order to determine whether his
director's decision was within statutory bounds.
■ Deeming clauses: The vesting of unreviewable authority in an agency
official: Review is also committed to agency discretion by law when the
statute suggests that Congress intended for the agency to have final
authority over decision. Such statutory provisions may be referred to as
deeming clauses. While this understanding of committed agency
discretion by law was not mentioned in Overton Park, it's in part, it is
consistent with the pre APA understandings of when highly discretionary
agency decisions were not subject to judicial review.
● In Webster the statutory language, stating that the director may
terminate employees when he deems it in the interest of the United
States, assigned final authority to dismiss CIA employees to the
director. The statute does not state that it must be in the national
interest to terminate the employee only that the director must deem
it to be so. The court observed that the standard fairly exudes
(gives) deference to the director.
■ Decisions traditionally not reviewable Justice Scalia's Webster's
dissent : The Court also held that there are categories of administrative
decisions that are unreviewable under the committed to agency discretion
by law provision, because these categories have traditionally been held to
be committed to agency discretion. This categorical approach originated in
Scalia's attempt and his Webster v. Doe dissent to explain the meaning of
the words ``by law” and the phrase “committed to agency discretion” “by
law”. Scalia stated that bylaw refers to a body of common law of
reviewability under which certain subject matter categories of agency
action are usually unreviewable.
★ Relationships committed to agency discretion by law” and the nondelegation
doctrine: It may appear that the no law to apply branch on review ability entails an
automatic violation of the non delegation doctrine. However, there are two reasons why
the lack of law supply does not automatically violate the non delegation doctrines.
insistence that congress supply an intelligible principle and delegating legislative power
to administrative agencies.
○ First, agency action may involve power that is traditionally exercised by the
executive branch.
■ Webster involved the power to terminate executive employees, the power
to terminate an executive employee, arguably an executive function,
versus discretion granted in that case did not violate the non delegation
doctrine.
○ Second, although there may be no law to apply for viewability purposes, This
does not necessarily mean that a statute does not contain an intelligible principle.
Congress's general purpose may supply enough guidance to satisfy the intelligible
principle standard without providing sufficient guidance still meaningful judicial
review.
★ The special case of the non reviewability of the exercise of enforcement discretion:
The Supreme Court has been especially reluctant to allow judicial review of agency
decisions involving whether and when to take enforcement action for violation within the
agency's jurisdiction. The court has sometimes analyzed these issues under the heading of
prosecutorial discretion.
○ Heckler: In Heckler, the court held that 701 A2 barred review of Food and Drug
Administration's decision not to take enforcement action against states that
administered capital punishment by the lethal injection of drugs that were not
approved by the FDA for that particular use. The court held that it was up to the
agency to balance the various factors that are relevant to the agency's decision
whether to take action against a particular violation of law administrative agency
and the ordinarily it's no different reviews available of the decision not to take
enforcement action.
★ How to rebut the presumption against review agency exercise enforcement
discretion: The presumption against review of prosecutorial discretion may be rebutted if
the agency's enabling act requires the agency to bring enforcement action under certain
specified circumstances or within a certain time period.prosecutorial discretion are
reviewable when the substantive statue has provided guidelines for the agency to fall
when exercising its enforcement powers. Heckler
○ Dunlop: In Dunlop, the court held that the Secretary of Labor's refusal to bring a
lawsuit challenging the results of a union election was reviewable because under
specified circumstances, the relevant statutes require the Secretary to sue. The
statute provided that if the Secretary finds probable cause to believe that the law
governing union elections was violated the Secretary shall within 60 days after the
filing of such complaint, bring a civil action against the labor organization, as an
enemy of the District Court of the United States. When reviewable, prosecutorial
decisions are likely to be reviewed very deferentially. Agency's decision is upheld
unless the administrator fails to provide plausible rational reasons for the failure
to prosecute. In this case, the court may have felt compelled by the statutes
mandatory language “shall bring a civil action” to review the decision not to sue
but the court clearly stated that the review is to be very deferential, insisting that
the Secretary articulate rational reasons for failing to bring the required civil
action.
★ Review of decisions not to engage in rulemaking: Agency decisions not to engage in
rulemaking are reviewable, but under a highly deferential standard. Massachusetts v
EPA. The court rejected the argument that decisions not to engage in rulemaking should
be treated as unreviewable exercise of prosecutorial discretion. The court distinguished
hecklers on several bases: First, they are less frequent than enforcement decisions.
Second, that they're likely to involve legal as opposed to factual issues and Third, the
agencies are required to entertain and publicly answer rulemaking petitions but not
enforcement requests. American Horse. Because APA 553 requires agencies to receive
petitions for rulemaking, a denial of such a petition would be considered final agency
action, and the petitioner can then seek judicial review the denial, although the court held
that refusals to promulgate rules are subject to judicial review, such review is extremely
limited and highly deferential.
★ Preclusion of review of constitutional questions: The court has not decided whether
Congress may preclude judicial review constitutional challenges agency action, because
precluding digital review constitutional challenge itself raises a serious constitutional
question. For example, in Johnson V. Robinson, the Court held that statute barring
review decisions of the veterans administration did not bar a constitutional challenge to
the statute of the VA. In his dissent in Webster, Scalia argued that Congress has the power
to preclude review of constitutional issues. The issue will only be resolved, authoritarian
tively if congress unmistakably bars the review of constitutional challenges.
Session 25: Availability and Timing of Judicial Review (II)
Pp. 1003-1078 (Franklin v. Mass; Bennett v. Spear; Hawkes; Abbott Labs; Gray; Reno;
McKart; McCarthy v. Madigan; Darby v. Cisneros)
★ The Timing of Judicial Review: Ripeness, Finality, Exhaustion, and Mootnes:
Judicial Review may only be sought when the claim is ripe and final, when
administrative remedies have been exhausted and before the claim becomes moot.
Claims may not be brought too early (ripeness), too late (moot) and in some cases
without exhausting administrative remedies.
★ The Constitutional underpinnings of ripeness and mootness: Ripeness and mootness
doctrine derived from the constitutional requirement of case or controversy. When a case
is brought too early or too late either there is not yet an injury sufficient we're standing or
the injury has ended, and a favorable judgment will not resonate it. In addition, under the
APA agency action must normally be final before judicial review may be sought.
○ Example: If a person brings a petition for judicial review of a regulation before
the agency has attempted to enforce the regulation against the petitioner, the
action may be right because the petitioner has not yet been injured by the
regulation. If the agency repeals the challenge regulation the case is moot because
the position is no longer injured.
★ Ripeness and finality under the APA: The APA’s grant of review of final agency
action: APA 704 grants a right to judicial review of final agency action for which there is
no other adequate remedy in the court. The final agency action provision is essentially a
ripeness requirement, which excludes from review any agency action that is not yet
complete. In non APA cases there are also ripeness requirements in addition to the APA
finality requirement. In Bennett The court put forth the following test for finality (1) the
action must mark the consummation of the agency’s decision making process; must not
be of a merely tentative or interlocutory nature. (2) The action must be one by which
rights or obligations have been determined or from which legal consequences will flow.
○ In Hawkes, Hawks challenged what the Corps termed “an approved jurisdictional
determination” finding that wetlands owned by Hawks were waters of the United
States under the Clean Water Act. The Corps argued that this was not a final
agency action because it lacks legal consequences, but the court disagreed finding
that a positive jurisdictional determination represents “ the denial of the safe
harbor” that Hawkes would have if the Corps had made a negative determination
(a determination that the wetlands were not waters of the United States).
★ Finality, ripeness, and judicial review of agency determinations: Agency
adjudications are final when the adjudicatory process and the agency has completely
ended, including whatever appellate review is legally required within the agency and the
agency has issued its order.
★ Finality, ripeness, and judicial review of agency rules: An agency rule may be ripe for
judicial review upon promulgation ( before enforcement) if the issues are fit for judicial
review and the party seeking review would suffer substantial hardship if review was
delayed until after enforcement. Abbott. If the fitness and hardship test are not met a
party subject to a rule must wait to challenge the rules as a defense and agency initiate
enforcement proceedings.
○ Fitness: An issue is fit for pre enforcement judicial review if no further factual
development is necessary for the issue to be resolved. Purely legal issues are fit
for judicial review pre enforcement.
○ Hardship: There is sufficient hardship or warrant pre enforcement judicial review
if it would be very expensive to comply with the regulation immediately, which
might ultimately be overturned and a special problem would arise for a party who
violated the regulation to provoke an enforcement action in order to get judicial
review of the rule.
■ In Abbott Labs, a regulation was promulgated the drug manufacturers
immediately challenged the every time requirement and the only issue in
this case was whether the FDA had statutory authority for the every time
requirement. The court held that this legal issue was fit for pre
enforcement review because it was the purely legal issue whether the
statute allowed for the every time requirement.
■ The second issue in Abbott Labs was whether there was sufficient
hardship to justify an immediate judicial review. The court held that the
hardship was sufficient because it would be very costly for the drug
manufacturers to print new labels and destroy those already in stock and
violation of the regulation carried with it the risk of criminal penalties and
seizures of improperly labeled medication. It would damage the drug
manufacturers reputation to willfully violate agencies regulation if they
ultimately lost on judicial review.
■ Absence of fitness: An issue is not fit for immediate judicial review when
it is unclear what the regulation means. or when it is likely to be applied.
● In Toilet,cosmetic manufacturers sought immediate review of a
regulation requiring cosmetic manufacturers to permit FDA
inspectors to have free access to certain manufacturing facilities.
The Court held that the issue was not fit for review because it was
unclear when the FDA would actually order inspections.
■ Absence of hardship: Tere is not sufficient hardship for immediate
judicial review if the regulation promulgated would not be expensive to
comply with and there are no substantial impediments to challenging the
legality of the regulation on judicial review of enforcement action.
● In Toilet, the regulation provided that the cosmetic manufacturers
must allow inspections or lose the certifications that allowed them
to market their cosmetics. Court held that there was not sufficient
hardship for immediate judicial review because the regulation did
not actually require the manufacturers to change their behavior and
they could properly challenge any suspension of certification
services on judicial review. However, there's no room for
disagreement with this conclusion on the ground that loss of
certification would be crippling to the business.
★ Exhaustion of administrative remedies prior to seeking judicial review: One of the
oldest most established doctrines administrative laws that challenges must exhaust
remedies within the agency before seeking judicial review. Courts have applied the
doctrine most strongly in cases of agency adjudication where appeal within the agency is
available. However, the Supreme Court has held that in APA cases, there is no general
exhaustion requirement beyond APA 704’s finality requirement. If an agency action is
final within that section, judicial review under the APA is timely. Darby
★ Exhaustion is required except in three narrow circumstances: In non-APA cases,
exhaustion of available administrative remedies is required unless. (1) exhaustion would
cause undue prejudice to the protection of the rights issue. (2)the administrative agency
lacks power to grant effective relief or; (3) the exhaustion would be futile because the
administrative bodies are biased. McCarthy
○ McCarthy:A prisoner sues prison officials for damages because of alleged
unconstitutional conditions in the prison. There's an administrative process in the
prison under which in order to improve the conditions can be issued but no
damages can be awarded because the president is not required to exhaust
administrative remedies; because damages are not available for the remedy sought
in the lawsuit.
★ The Exhaustion doctrine serves important policies: The policies behind the
exhaustion requirement include (1) avoiding needless judicial intervention into
administrative affairs, (2) allowing the agency to correct its own errors and; (3)
sharpening the issues and the record for judicial review.
★ Exhaustion under the APA: In APA cases, there is no exhaustion in addition to the
finality criteria under APA 704. APA 704 states that an Agency action is final even if
further appeal within the agencies available “ unless the agency otherwise required by
rule and provided of the action meanwhile is inoperative, for an appeal to Superior
agency authority.” In APA cases, exhaustion is required only of those remedies expressly
required to be exhausted by Statute or agency rule. further in the case of an agency rule
administrative action must be an operative pending internal review within the agency for
exhaustion to be required. Darby. If APA 704 is met, no further exhaustion is required.