OVERVIEW
What is admin agency?
1. Any gov actor not const’lly described
2. APA §551
a. Each auth of gov’t of US and not included:
1) Congress
2) Courts
3) By caselaw: the president and his special advisors
4) Some other enumerated as well
3. Structure
a. 15 depts each headed by secretary except the AG
b. W/in depts. have agencies
c. Also have independent agencies outside of depts. such as USPA, EPA, CIA
d. All are understood to be subject to the control/direction of the executive as it is his job to
ensure that all laws are faithfully executed.
e. Exceptions
1) Independent regulatory agencies-which are relatively insulated from the exec and
legislative branches whose goal was not to be influenced by who is currently in office
and usually have multi-member heads w/ staggered terms w/ termination for extreme
dereliction, not political powerplay (i.e. SEC, Fed Reserve, NLRB)
2) Gov’t Corporations-Amtrak, TVA
f. General structural Model
1) Congress creates agency through enabling act that enumerates power/objective/etc.
Usually follows the APA but if not, enabling act will address how it will be done.
2) POTUS in charge of directing/executing
3) Courts in charge of reviewing these/their actions.
4. Theories
a. Underlying social problem or need that admin viewed as the response (promote public
value or public interest theory)
1) Legislature regarded as forum for identifying and acting towards public or objective
values
2) Values efficiency/effectiveness
b. Outcome of a struggle among self-serving legislators, interest groups, etc. (public choice
theory)
1) Substantive values/ends are strictly private and subjective; legislators deliberate
towards terms, not goals.
2) Amenable to influence and can be more responsive.
LEGISLATIVE CONTROL OF ADMIN AGENCIES
1. 4 main ways for congress to control:
a. Authorization-congress creates and empowers agency through legislation
b. Revision-revision of powers through legislation amending enabling act or redefining the
agency’s scope; another method is the “legislative veto” to correct misuse of authority
c. Appropriation-Specifying purposes for which funds can be used
d. Oversight-additional, often informal, indirect techniques congress uses to influence
administrators.
NON-DELEGATION DOCTRINE
-Although Congress passes enabling acts to create and form the scope of agencies, there are certain
things that they are not allowed to constitutionally empower agencies with. A few short cases illustrate:
1. Field v. Clark-“Congress cannot delegate legislative power…principle universally recognized as
vital to the integrity and maintenance of the system of gov’t ordained by Constitution.”
a. Upheld delegation to POTUS to impose tariffs on imports when he was “satisfied” of the
need for them. Not seen as legislative bc rooted in fact-finding to effectuate congressional
will.
2. The Brig Aurora-SCOTUS upheld delegation of power to POTUS to lift embargos of nations that
cease to violate neutral commerce of the US. Enabling Act in question specified the conditions
for when POTUS to act and defined action to perform. (no discretion)
3. Wayman v Southard-Upheld delegation to courts to determine their procedures. Somewhat
trivial and won’t have overwhelming legislative effect.
4. Hampton v US-Upheld delegation to POTUS that allowed for some policymaking authority.
Could do so as long as there is an intelligible principle to guide the delegatee’s discretion.
5. Schecter Poultry-NIRA, §3-POTUS can approve codes of fair competition for trades and
industries which could be approved, upon application by industry trade associations. Could do
so if president found:
a. Codes impose no inequitable restrictions on membership
b. Not designed to promote monopolies or oppress small business and
c. Will tend to effectuate policy of the statute
d. Struck down-congress can’t delegate legislative authority to private industry (associations
must approve) who are not interested in welfare of the people. Could set up race to the
bottom.
POST NEW DEAL CHALLENGES
1. Yakus v. US-Upheld intelligible principle instructing Federal Price Administrator to set “generally
fair and equitable prices.” Court held constitution doesn’t demand the impossible or
impracticable. Doesn’t require congress to find every fact or make detailed determinations that
are prereq’s to policy on facts that are impossible for congress itself to investigate.
2. Industrial Union AFL-CIO v. American Petroleum Institute (Benzene Case)-§3(8) requires all
standards by Secretary be “reasonably necessary and appropriate” and §6(b)(5) directed to
select the standard that most “adequately assures, to extent feasible, that no employee shall
suffer material impairment of health or functional capacity.”
a. Court struck down, said that statute violated three purposes served by the doctrine:
1) Ensures important choices of social policy made by congress, the branch most
responsive to popular will
2) Provide delegate an “intelligible principle” to guide exercise of discretion and
3) Enable reviewing court to test exercise of authority against ascertainable standards.
Whitman (EPA) v. American Trucking Assn-Intelligible principle: secretary set standards “requisite to
protect the public health” with an “adequate margin of safety” for major pollutants. EPA issued rules
for O3 (ozone). EPA set standard at .08, after studies indicate that there may be no safe level. But EPA
did not state intelligibly how much is too much.
1. Court refuses to label the action legislative, says it is more aligned with policymaking and court
is “almost never felt qualified to second-guess Congress regarding the permissible degree of
policy judgment that can be left to those executing or applying the law.”
2. Concurrence-says should just call it legislative authority and conclude that when it is adequately
limited by terms of authorizing statute and an intelligible principle.
DOCTRINALLY SPEAKING-can’t formally say that when Congress gives an agency broad power to make
rules that appear legislative—rules that resolve important issues of policy, bind everyone and have
future effect—that Congress has given agency legislative power, we therefore need a vocabulary to talk
about what power the agency has been given. Often terms “policymaking” or “lawmaking” power
instead. So formalistically speaking, they don’t have legislative power but can have almost unfettered
power to make law or policy.
ANALYSIS to determine if there is an intelligible principle:
1. What does the statute say?
2. Infer legislative intent?
3. Think of the nature of the duty and its consequences?
THE LEGISLATIVE VETO
-At times congress will write into the acts requiring approval of Congress or an individual house before
an administrative action can become effective or allowing for them to disapprove of agency action.
-Way for congress to keep some power w/ mixed consequences:
1. Negative-promotes quick, inefficient legislation; allows for sloppy laws; may impede perf of
agency having inexperienced legislators having a say in a particular field
2. Positive-incentivizes accountability, promotes political accountability in a house.
But in 1983, the legislative veto took a big hit:
INS v. Chadha-Chadha came on student visa and after expiration he stayed. Summoned before tribunal
and admits he was deportable. Court adjourned giving him time to file application for suspension of
deportation under the act in question. AG has power to suspend deportation when application filed if
certain qualifications are met. But congress has power (one house) to pass resolution disapproving the
decision and vetoing it.
1. RULE-all legislative type action must be enacted through lawmaking process of bicameralism
(both houses) and presentment (to the president).
2. APPLIED-act in question essentially legislative in purpose and effect bc the house took action
that altered the legal rights, duties, and relations of persons outside the legislative branch.
3. White’s Dissent-the legislative action in this case didn’t change his status bc he was already
deportable before, and thus veto kept him in that status. Also, the power itself went through
the legislative process to give the power to the AG, shouldn’t have to do that twice.
TAKEAWAY/DEVELOPMENTS
1. Congress can still legislate, but must maintain separation of powers, so if it delegates the
enforcement to an agency, it cannot interfere w/ the execution.
2. Congressional Review Act of 1996:
a. Agencies need to report major rules to Congress 60 days before they can go into effect
b. W/in the 60 days (using expedited procedures) Congress may pass a joint resolution
disapproving the rule
c. If passed, the joint resolution is presented to POTUS for signature or veto.
APPROPRIATIONS: LINE ITEMS & LINE ITEM VETO ACT
-Very large power by congress to influence agencies through how much money they give. Some
problems that may arise:
1. Riders-specific language placing additional constraints beyond those in the enabling act in the
budget
2. Very powerful appropriations committee during time for the budget
3. Sloppy, hasty legislation
4. Log-Rolling-trading favors
-Thus, to combat the excesses that may arise during appropriations, some remedies
1. Presidential Veto-veto the whole thing when perhaps only one part is excessive
2. Line Item Veto Act-ability to cancel certain spending/tax provisions of appropriations bill w/in 5
days after signing the bill into the law. But this runs into trouble:
Clinton v. City of NY- Clinton canceled two spending acts, one involving Medicaid repayment to NY and
one providing limited tax benefit to farmers’ cooperative. Procedure for the line item process:
1. President must:
a. ID items for veto
b. Consider legislative history, purposes, relevant info
c. Must determine, after considering above, that the cancellation will:
1) Reduce federal budget deficit
2) Not impair essential gov’t functions and
3) Not harm national interest.
d. Items are prevented from having any legal force or effect
2. HELD-unconstitutional, repealing of statutes is no less legislative than enactment and thus must
conform w/ Article I. No provision that authorizes potus to enact, amend or repeal,
constitutionally relatively silent. This is a way for the president to make own policy by rejecting
the legitimate policy passed by congress. This gives president power to unilaterally change the
text of the laws.
LEGISLATIVE CONTROL SUMMARY
1. Congress can delegate some authority through enabling acts
2. These can be w/ broad discretion, but need an “intelligible principle” with which court can use
to review agency action/less likely action will be arbitrary or contradictory to congressional
intent.
3. Congress can set up the agency, but can’t interfere w/ operations that would offend the
separation of powers unless using bicameralism and presentment (Chadha)
4. Congress can’t give president the power to reject legislative policies that would violate
bicameralism/presentment (Clinton v. NY)
EXECUTIVE CONTROL OF ADMIN AGENCIES
APPOINTMENT
Article 2, §2, cl. 2-Potus shall appoint officers of the US
1. Appointments must be made by and w/ advice and consent of the senate-no way to override a
majority vote in opposition
2. Also empowers congress to vest appointment of inferior officers, as they think proper, in
president alone, in courts of law, or in heads of departments
3. Congress must first establish an office to which potus can make an appointment
Buckley v. Valeo-after Nixon resigned, congress passed amendments to the Fed Election Campaign Act
which establishes the FEC: 8 members, 6 voting, 2 nonvoting. However, 4 members appointed by
senate and speaker of house (2 each) and 2 nonvoting were the secsenate and clerk of the house. Each
pair had to include one member of each party and appointments from congress had to be
recommended by majority/minority leaders of each house w/ all members subject to confirmation by
both houses.
1. HELD-positions are subject to appointments clause of the constitution as they are principal
officers.
a. Principal officers-position w/ significant authority w/ enforcement powers, extensive
rulemaking and adjudicative powers.
b. Inferior Officers-outside of these, which congress may vest appointment in other places; but
speaker and president of senate are not one of parties congress may vest appointment
power.
REMOVAL
Article 2, §4-Pres, VP and all civil officers of the US, shall be removed from office on impeachment for,
and conviction of, treason, bribery, or other high crimes and misdemeanors.
This has led to different interpretations:
1. Literal-only way to remove officers is through impeachment
2. Broadly-this is only a certain set of circumstances that requires impeachment, and there are
other avenues available.
3. Marbury v. Madison-narrow interpretation, although president generally had power to remove,
congress could restrict President’s authority.
Myers v. US-Myers appointed postmaster 1st class for Portland, OR for 4 year term. On orders from the
president, Postmaster General fired him. Myers sues saying that didn’t get consent of senate for
discharge as required by governing statute.
1. HELD-statute unconstitutional; power is under general power of president to ensure uniform
execution of the laws and finding an executive office/function being negligent/inefficient, he or
dept head should have power to remove inferior officer. (PURELY EXECUTIVE POSITIONINFERIOR OFFICE)
Humphrey’s Executor v. US-member of FTC appointed by Coolidge in ’25, service was incompetent and
violently partisan. Yet appointed to second 6 year term in ’31. After refusing to resign, FDR fires him.
Humphrey challenged on ground that enabling act permitted removal only for “inefficiency, neglect of
duty, or malfeasance in office.”
1. HELD-potus did not have authority to remove members w/o cause. Court distinguished Myers
to say that:
a. Postmaster was executive officer w/ no duty related to either legislative or judicial power
while FTC is admin body created by congress to carry out legislative policies: cannot be seen
as an arm of the executive. By administering policies it acts part legislatively and part
judicially, thus subject to impeachment/for cause removal.
Bowsher v. Snyar-Comptroller general, head of General Accounting Office, generally considered
legislative whose function is to investigate and prepare reports for congress on agency function.
Appointment-congress picks 3 people, potus chooses one. But removal can be by joint resolution or
impeachment.
1. HELD-only congressional removal power is through impeachment. Direct congressional role is
inconsistent w/ separation of powers as this would give congress control of execution of the
laws.
2. White’s Dissent-formalism of removal is insignificant when congressional coercive power can
eliminate the job, position, pay, or even power.
Morrison v. Olson-Independent counsel set up through Ethics in Gov’t act to investigate and prosecute
allegations of official wrongdoing. Similar to a DA/AG, process requires:
1. Receipt of official wrongdoing or upon request from congress
2. If sufficient allegations, required to conduct prelim investigation (AG)
3. If investigation further needed, may apply to special division of DC circuit for appointment of an
independent counsel, they appoint and define scope of jurisdiction
4. REMOVALa. Upon completion of work the division can terminate the position
b. AG can remove at any time for good cause
In order to determine if act unconstitutional, court focuses on two things:
1. Whether officer is inferior or principal and whether there is a separation of powers issue:
a. HELD-clearly inferior as it can be removed by the AG, showing a higher exec position, also
has limited duties of investigation/prosecution and cannot make any policy. Also limited in
tenure and jurisdiction. SOP-what is important is ability of president to ensure laws
faithfully executed, and looking at the restrictions on the office, doesn’t impair that function
and so removal restrictions won’t be a problem either. Although some reduction of control,
still has removal for good cause.
2. SCALIA DISSENT-assault on executive power—created separate executive to investigate the
actual executive and diluting it by spreading it across judicial and executive branches. (DC circuit
has hand in appointment/congress has hand in creating position through complaint, a sort of
directing the executive function).
LESSONS/CHART FROM CLASS:
Agency
Indy?
Appt.
Can Pres.
Remove?
Removal
Restriction
Restriction is
Constitutional?
Rationale
Remedy
Myers
USPS
Humphreys
FTC
No, Executive
By exec w/
advice/consent of
senate
Yes
Yes, Semi-L, Semi-J
Appt w/ Adv &
Consent
Through advice
and consent of
the senate
No
Just
Cause/Impeachment
Joint resolution
Yes
No
Yes
Purely Executive
Office
POTUS doesn’t have
power, office not
executive
Legislature has
formal role in
Executive
functions
Doesn’t impair
potus’s ability
to ensure laws
faith/executed
Restriction
Unconst’l
Yes
Bowsher
Gen. Accting
Off.
No, Legislative
Of 3 choices,
President
chooses one
No
Morrison
Indep Counsel
No, executive
Courts-DC
circuit/scotus
Sort of-AG can
terminate
For good
cause
Can’t exercise
that power
Free Enterprise Fund v. Public Accounting Oversight Board-Board is independent agency under the SEC
charged w/ enforcing securities laws, SEC’s rules, its own rules and standards. It is allowed to regulate
accounting firms by demanding docs, testimony, and initiating investigations and disciplinary
proceedings as well as make rules that have the force and effect of law. 5 members, appointed by SEC
(inferior-answer to SEC, can be removed for cause, president cannot remove them). SEC
commissioners, on the other hand, can be removed for cause by potus.
1. HELD-unconstitutional, cannot have double layers of for cause removal on executive function of
president, impedes ability to ensure that the laws are faithfully executed.
2. RESOLUTION-removal provision of board members gone, so now only good cause relationship
from president to SEC commissioners (following Humphrey in that principal officer that is
appointed w/ advice and consent of senate requires good cause termination). AND board
members are removable at will by principal officers of the SEC (similar to Myers) and also
follows Morrison bc doesn’t interfere w/ executive’s ability.
SUPERVISORY POWERS
Kendall v. US-President does not have discretion to order officers to not follow the law
Youngstown Sheet and Tube-exec order authorizing Sec Commerce not w/in power for POTUS to take
over steel mills during strike: no statutory law to be executed and no inherent powers that allow it.
Contractor’s Ass’n of Eastern PA v. Labor-Exec orders prohibiting racial discrimination and ordering
affirmative action practices for gov’t contractors okay bc relevant statute authorized potus to make the
policy choice.
Clinton & US FDA-Clinton sets up rules for agency program involving marketing of tobacco products to
children.
1. HELD-FDA doesn’t have statutory authority to regulate tobacco, a legislative power to which
president not allowed to do either. Couldn’t do it through FDA or potus directly.
ADJUDICATION
Art 3, §1: adjudication shall be vested in one supreme court, and such inferior courts as congress from
time to time may ordain and establish. §2: judicial power shall extend to all cases and controversies.
Cases on agency authority to adjudicate:
Murray’s Lessee-exec officials can adjudicate public rights (i.e. tax owed, breach of K claims against
gov’t). Held okay, US has sovereign immunity against these claims. But cannot hear matters which,
from their nature, subject to suit at common law, equity, admiralty.
Crowell v. Benson-Admin agency tribunal that determines worker compensation awards (private right v.
private right) can be judicially reviewed. This is held okay bc ART 3 courts can get help from adjuncts
(agency courts can do the fact finding)
Northern Pipeline-BK judges authorized to adjudicate state law breach of K claims w/o parties consent
and limited ART 3 court review. HELD NOT OKAY as private rights dispute, parties didn’t consent to
forum, and ART 3 review is too small
Commodity Futures Trading Comm v. Schor-Schor lost money in the market, broker files suit in USDC,
Schor gets it moved to CFTC. CFTC hears claims, rules against Schor for his claims and rules for broker
on counter claims (for money owed). Schor then challenges authority to adjudicate broker’s claims
which is denied.
1. HELD-Purpose of the Article 3:
a. Protect the role of an independent judiciary w/in constitutional scheme and safeguard
citizen’s rights to have claims decided by judges free from potential domination of other
branches. However, it can be subject to waiver, which Schor did in this case by choosing the
CFTC procedure
2. In determining whether agency can hear claims:
a. Extent to which essential attributes of judicial power are reserved to ART 3 courts
b. Extent to which non ART 3 forum exercises range of jurdx and powers normally only in ART 3
courts
c. Origins and importance of the right to be adjudicated and
d. Concerns that drove congress to depart from req’s of ART 3.
3. APPLIED
a. Only departure from regular agency function is jurdx over CL counter claims
b. CFTC deals only w/ particular area of law while Northern Pipeline was over all civil
proceedings arising out of the BK
c. CFTC orders only enforceable by order of court (strong judicial review)
d. CFTC courts don’t exercise all ordinary powers of DC (no jury trial, habeas corpus)
JUDICIAL REVIEW
SCOPE OF REVIEW
APA ON REVIEW OF AGENCY ACTION
§706-To extent necessary to decision and presented, reviewing court shall decide relevant questions of
law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the
terms of an agency action. Reviewing court shall—
1. Compel agency action unlawfully withheld or unreasonably delayed; and
2. To hold agency action unlawful and set it aside, if the court finds the action to be:
a. Arbitrary, capricious, abuse of discretion, or otherwise not in accordance w/ law
b. Contrary to const’l right, power, privilege, or immunity;
c. In excess of statutory jurdx, auth, limit, or short of statutory right
d. W/o observance of procedure required by law
e. Unsupported by substantial evidence in case subject to formal rule making (556) and
formal adjudication (557) or otherwise reviewed on record of an agency hearing provided by
statute or
f. Unwarranted by the facts to extent that the facts are subject to trial de novo by reviewing
court.
In making determinations, court shall review the whole record or those parts of it cited by a party, and
due account shall be taken of the rule of prejudicial error.
NOTES ON ABOVE:
1. E and F special circumstances
2. Can apply any except E and F really; most deal w/ scope of admin power
3. A is least intrusive (more favorable to the agency) while if you are challenging agency action,
want the most invasive review possible.
Citizens to Preserve Overton Park-proposal for highway project in TN through Overton Park.
1. Agency: Dept of Transportation
2. Statute: Secretary shall not approve any program or project that requires the use of any public
parkland unless:
a. There is no feasible and prudent alternative to the use of such land and
b. Such program includes all possible planning to minimize harm to such park.
Secretary argues that statute gives him wide discretion to make a decision that must weigh all the
factors including dislocation, cost, etc.
1. HELD-Court’s interpretation is that the statute says that there is to be no building unless truly
unusual factors present or cost to community disruption resulting from alt routes reach
extraordinary magnitudes.
2. Level of Review
a. Arbitrary/capricious-possibly as action, per the court, not in accordance w/ the statute
b. Excess of statutory auth-possibly, per the court, statute was “no build unless” while
secretary treated it as “can build if”
A NOTE ON ALJ’S
Employees of agencies; removable for cause, but ALJ can contest that cause in an agency adjudication—
not w/ agency they are a part of, but of some other board that adjudicates gov’t employee employment
actions. They are appointed, essentially a career appointment.
REVIEW OF AGENCY ACTION-Arbitrary and Capricious
Motor Vehicle Manufacturers Assn. v. State Farm
1. Agency: Dept. Transportation
2. Statute: National Traffic and Motor Vehicle Safety Act gave authority to the agency to issue
motor vehicle safety standards that shall be practicable, meet the need for safety, and stated in
objective terms. Secretary directed to consider relevant available safety data and authorizes
judicial review of all orders, involving motor vehicle safety standards (setting, amending,
revoking).
3. Regulation in question: after rulemaking proceeding, Section 208:
a. Re installation of passive restraint systems (seatbelts and airbags). Estimated prevent
approx. 12k deaths and 100k serious injuries. Choice was to incorporate these measures
into new cars, but choice of which left to manufacturer. Agency assumed that airbags
would be chosen 60% of cars, but makers chose 1% about.
b. Therefore, agency said could no longer find the expected effectiveness, seatbelts
themselves could be detached and left that way from user action and so repealed the
provision.
HELD-ARBITRARY AND CAPRICIOUS and outlines FACTORS:
1. Agency relied on factors which Congress hasn’t intended it to consider
2. Entirely failed to consider important aspect of the problem
3. Offered explanation for decision that is counter to evidence
4. So implausible that couldn’t be from difference in view or product of agency expertise.
5. Basically:
a. Airbags-didn’t give reason for abandoning airbags, just post hoc rationalizations
b. Seatbelts-too quick to dismiss safety benefits. Failed to take account of difference between
detachable auto belts and current manual belts. Evidence shows more than doubling usage
rate than manual belts. Failed to consider use of continuous passive belts.
REVIEW OF AGENCY POLICY DECISIONS
Deferential, don’t need to explain why new policy better than old, just consistent w/ auth statute
FCC v. Fox TV Stations, Inc.
1. Agency: FCC
2. Action: FCC enforces statutory ban on broadcast of indecent language. Change is rather than
requiring repetitive non-literal instances (doesn’t refer to the sexual/excretory activity/organ),
can punish on just one instance of literal use.
3. Held: Not Arbitrary or Capricious: agency need not show why new policy better than the old
one; suffices that new policy is permissible under the statute and good reason for it, since
agency believes it to be better, and conscious change of course reflects that.
a. Court not substituting own judgment for that of agency, simply evaluating explanations
given. Reasons were rational involving technological advances and agency recognizing that
prior policy no longer good law.
REVIEW OF AGENCY DECISION NOT TO ACT
Limited, deferential, reasons for inaction must conform w/ authorizing statute
Massachusetts v. EPA
1. Statute: Authority of administrator to prescribe by regulation except as otherwise provided:
a. Standards applicable to the emission of any air pollutant from any class/classes of new
motor vehicles or new engines, which in his judgment cause, contribute to air pollution
which may reasonably be anticipated to endanger public health/welfare.
2. EPA-denies rule making petition and gave two reasons:
a. Contrary to opinions of its former general counsel, CAA doesn’t auth EPA to issue
mandatory regulations to address global climate change (omitted for our discussion)
b. Even if it did, it would be unwise to do so at this time:
1) Causal relation between gases/global warming cannot be unequivocally established
2) Regulation of car emissions is piecemeal approach that would conflict w/
administration’s comprehensive approach (tech innovation, programs to encourage
voluntary reductions, research, etc.)
3) May hamper administration’s ability to persuade key developing countries to reduce
their greenhouse emissions.
Issue that court wrangled with is what standard of review to apply for non-action and if can use one,
what is the result?
1. Note: court sees this as different than agency decision not to move forward w/ an enforcement
action as that is a factual analysis, while this is a denial to make law, so a legal analysis.
2. HELD-can still have judicial review, but review is “extremely limited” and “highly deferential” w/
reserving right to reverse “any such action found to be arbitrary, etc.” Reasons for inaction
must conform w/ authorizing statute, and here EPA can only avoid action if administrator
makes judgment that gases don’t contribute to climate change or explanation why cannot or
will not exercise discretion.
a. APPLIED: reasons given (above) have nothing to do w/ whether gas emissions contribute to
climate change. Therefore, no reasoned explanation for refusal to decide whether gases
contribute to change and action is therefore A & C.
REVIEW OF QUESTIONS OF LAW (Chevron Deference)
Step One: identify ambiguity in the statute/congressional authorization
Step Two: is interpretation of the statute reasonable or permissible (w/ great deference)
Chevron v. NRDC
1. Agency: EPA
2. Statute: regulate new or modified stationary sources of air pollution; requiring permits for
construction and operation of new or modified major stationary sources in accordance w/
regulations.
3. Issue: what is the definition of stationary sources; and who decides? (agency? Court?)
a. EPA/Chevron perspective: “bubble” stacks/vents together to entire complex of pollution
b. NRDC: each individual smoke stack should be a “source.”
4. Precedents
a. NLRB v. Hearst-court didn’t rely on agency’s reasoning or result. Instead looked to history,
terms, purposes of legislation. If broad statutory term and agency supposed to administer,
court review is relatively limited. Agency determination is to be accepted if it has warrant in
the record and reasonable basis in law.
b. Skidmore v. Swift-court should at least give some modest degree of deference to
administrators and agency. Not mandatory or binding, but can be very persuasive.
1) Skidmore deference: modest degree
CHEVRON DEFERENCE:
1. If congress hasn’t directly spoken on precise issue
2. And congress has explicitly left a gap for agency to fill,
3. Then delegation to agency on particular question may be implicit rather than explicit
4. If so, court may not substitute its own construction for reasonable interpretation made by
agency.
Babbit v. Sweet Home Chapter-Endangered species act, conflict over what the term “take” means when
statute says illegal to “take any species.” Statute defines “take” to mean harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture or collect.
1. Agency action: defines “harm” to include significant habitat modification or degradation where
it actually kills or injures wildlife by significantly impairing essential behavior patterns, including
breeding, feeding, or sheltering.
2. HELD-upheld after business brought action seeking definition inconsistent w/ the act bc text of
act provided reasons for concluding sec’s interpretation reasonable:
a. Ordinary understanding of the word supports it
b. Broad purpose of act supports decision to extend protection against activities that cause the
precise harms
c. Congressional authorization indicated congress understood regulation to prohibit indirect as
well as deliberate takings.
FDA v. Brown & Williamson Tobacco Corp.
1. Statute: grants FDA authority to regulate drugs, devices, and so called combination products
which constitutes a combination of drug, device, or biological product.
2. Action: FDA defines them, claiming legal authority to regulate bc nicotine drugs and cigarettes a
drug delivery device. (Tobacco Industry clearly doesn’t agree)
3. HELD-Court agreed w/ tobacco:
a. Not going to actually look in the statute that they are interpreting and look to other
legislative history and enactments to determine scope of the statute and determines that
statute didn’t mean for FDA to regulate tobacco in this manner. (defining
tobacco/cigarettes as a drug bc then they would have to be removed by FDA, but other
legislation against this, no implicit delegation)
FOOTNOTE 9 IN CHEVRON: Judiciary is final authority on issues of statutory construction, which if
followed to logical conclusion, court’s decision may contradict or even go against the ideology.
Massachusetts v. EPA
1. EPA’s interpretation of “air pollutant” argues that it didn’t have authority over greenhouse
gases and congress would have spoke w/ specificity if it wanted EPA to determine it. Compares
to Brown v. FDA that legislation proposed to regulate was rejected.
2. HELD-stopped at step one of the analysis, stating congress has defined air pollutants and CO2 is
encompassed, so can follow congressional language. Thus, EPA does have authority. Court held
statutory language was clear that EPA has power to regulate air pollutants which these clearly
are.
TAKEAWAY FROM CHEVRON, FDA, EPA, BABBITT
1. Tools for statutory interpretation
a. Legislative history outside of statute at issue (FDA)
b. Dictionary (Babbitt)
c. Broad purpose of statute (Chevron)
d. Ordinary/common law understandings
2. Note, all regulations enforced except EPA where EPA didn’t want to regulate, but court rejects
their contention that they don’t have authority
CHEVRON DEFERENCE V. SKIDMORE DEFERENCE
US v. Mead Corp-US Customs changes their tariff to begin taxing Mead Day Planners, challenged
1. Issue: Whether a tariff classification ruling by US customs deserves judicial deference
2. HELD-this is different than the Chevron cases where agency decisions adopted after relatively
formal proceedings, here w/ less formal agency actions, treat differently, so adjusts Chevron
test:
a. If we conclude congress hasn’t directly spoken to issue (STEP 1 SAME)
b. Then look to see if action followed form of formal procedure and whether action carries the
effect law (DIFFERENT-ALSO NOT DETERMINATIVE, SOMETIMES COURTS WILL STILL GIVE
CHEVRON DEFERENCE)
c. Can still apply Skidmore deference (seek a respect of agency decision proportional to its
power to persuade)
National Cable & Telecomm Assn v. Brand X Internet-dispute over whether FCC has power to regulate.
Normally if business is a telecomm service, then does but FCC decides that cable modems/internet are
information service and decides it can’t regulate.
1. Issue: Chevron deference?
a. Step 1: statute ambiguous
b. Step 2: IGNORED BY THIS COURT, concurrence later points out Scalia’s error in Mead
1) Says other ways to get to Chevron-congressional intent
c. Step 3: interpretation is reasonable, so deference given.
BIG PICTURE BETWEEN CHEVRON AND MEAD
1. What is the analytical framework for judicial review now?
a. Is the statute one that the agency is in charge w/ administering
b. Has congress directly spoken on the issue-if it has, follow that
c. If congress has left a gap for agency to fill, then:
1) Analyze if congress intended agency actions to render force and effect of law (this is
usually presumed if through formal procedures)
But if agency uses less, it may still get Chevron deference, but may push it towards Skidmore deference
if doesn’t show that intent for force of law.
SUBSTANTIAL EVIDENCE TEST-FORMAL ACTION
Normally in instances in formal adjudication/rulemaking. Formal adjudication fairly common. Formal
rulemaking rarely used as very costly and not proven to be more effective than notice and comment.
This review can also occur when organic/enabling act requires/specifies it.
Universal Camera-Employee (Chairman) gave support to union workers seeking representation by
testifying for group in opposition to co’s position at NLRB local hearing. Mgmnt looked into his record,
but found no basis for termination. Personnel manager that did investigation got into argument w/ him
later. Next day manager told supervisor that he should be fired for accusing manager of being drunk
and refusing to send other employee home. Chairman claims other employee not his subordinate, can’t
do it. Next few weeks, supervisor says Chairman would resign to manager, which Chairman denies, but
manager pushes issue and eventually he is fired.
1. Procedural: ALJ of NLRB said not unfair labor practice in view of facts that possible that belief
was that he would resign so delay in termination could be explained by that, not animus for
testifying
a. Board Review: supervisor/manager not credible neither is evidence, no credible explanation
for delay and firing based on animus.
b. 2nd Cir.-only reviewed the board’s decision, not the ALJ’s decision
c. SCOTUS-can take all of record into consideration; okay for alj and board to disagree, for
court to review the whole record, and in decision, can evaluate trial examiner’s findings as
well. Secondary inferences of alj that may not be written down may be taken into account.
2. Substantial Evidence Defined: such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
SUBSTANTIAL EVIDENCE REVIEW OF INFORMAL RULEMAKING
Industrial Union Dept. v. American Petroleum Institute (THE BENZENE CASE)
1. Statute: sec to set standard which most adequately assures, to extent feasible, on basis of best
available evidence that no employee will suffer impairment…other considerations shall be latest
available data, feasibility of standards, experience gained, other health and safety laws.
2. Action: regulation sets stringent limitation levels of exposure, evidence is that exposure to
benzene causes cancer at high exposure levels.
3. HELD-not substantial evidence: agency didn’t make showing that at low levels it is very
dangerous; would allow agency to have unbridled discretion to adopt standards to design risk
free workplace regardless of cost, which is exceeding authority.
This is not normal application, as normally this would be arbitrary and capricious review.
AVAILABILITY OF JUDICIAL REVIEW
Elements that must be met in order for the court to hear the dispute:
1. Jurisdiction-power/authority to hear the dispute
2. Reviewability-whether, assuming we have jurdx, questions presented are reviewable
a. Whether there is agency action
b. Whether congress has by statute precluded review
c. Whether decision is committed to agency discretion by law
3. Standing-whether party bringing claim is party legally allowed to do so
4. Appropriate Timing-isn’t too early/late for court to hear the dispute
JURISDICTION
Where to find it:
1. In the statute: enabling act for agency
2. If not, generally can use §1331
3. APA doesn’t provide independent basis for fed jurdx
Usually placed in circuit court to save judicial economy, plus the function is reviewing record of
factfinder, which is already done by agency. But if using §1331, have to start w/ DC.
REVIEWABILITY-Presumption of reviewability
§704-agency action reviewable by statute and final agency action for which there is no other adequate
remedy in a court are subject to review.
1. Have to wait until final action; unless made reviewable by statute
2. No other adequate remedy in court-creates general right of review (APA §701)
3. Can still be final action if there is some small formalities remaining (APA §701)
WHETHER THERE IS AGENCY ACTION
Even if petition for review successfully ID’s an agency, review unavailable if petitioner doesn’t
successfully identify something that constitutes agency action (challenges to improper inaction or
overall modus operandi unavailable)
Norton v. Southern Utah Wilderness Alliance-Bureau of Land mgmt./secretary makes determination of
possible future wilderness area. In the interim, statute says he shall “continue to manage lands in
manner so as not to impair the suitability of such areas for preservation as wilderness.” Wilderness
Alliance upset about his manner of management and argues it can sue to “compel agency action
unlawfully withheld or unreasonably delayed.” (§706). Action per §551: whole or party of agency rule,
order, license, sanction, relief, or equivalent or denial thereof, or failure to act.
1. HELD-agency action can be compelled only when legally required. Claim can only proceed if pl
asserts that agency failed to take discrete agency action required to take. But Alliance can’t
point to one, general land use plans aren’t made up of specified actions that pl can point to.
WHETHER STATUTE PRECLUDES REVIEW
Presumption is in favor of review, especially involving constitutional questions. But factors to consider
whether statute precludes:
1. Whether decision is for agency or congress (i.e. deciding if you get benefits [agency] or deciding
who in general gets benefits [congress])
2. Will reviewing open the floodgates to the court and inhibit agency discretion for policy making?
Johnson v. Robison-conscientious objector wants ed benefits that he is denied bc decided they are only
for those on active duty. Claim is constitutional in nature.
1. Statute: decision of administrator on any question of law or fact under any law administered
by VA providing ben’s shall be final and conclusive and no other official or court shall have
power or jurdx to review any such decision.
2. HELD/RULE: statutes re review can’t survive if not congressional intent or if it provides no
meaningful review. Also statutes usually don’t provide for no review of constitutionality of
agency action. (constitutional claims not precluded)
McNary v. Hairian Refugee Center-immigrants go through interview process, determinations are
appealable w/in the agency.
1. Statute: could appeal to the courts only if the final decision was exclusion or deportation but
no admin or judicial review of determination regarding intermediate adjustments of status.
2. Key Facts: during procedure, no adequate interpreters, not allowed to challenge evidence on
which their denial is predicated, couldn’t present witnesses, no verbatim recording, thus
inhibiting any meaningful admin review. (Essentially deprived of due process)
3. HELD/RULE: given absence of clear congressional language precluding jurdx and nature of
requested relief, court had jurdx to hear constitutional and statutory challenges
CONNECTION BETWEEN THE CASES:
1. Although some final agency decisions not reviewable, constitutional challenges should not be
precluded
2. More general attacks on procedural process may get judicial review more so than intermediate
decision
3. If effective review can’t or likely not to be had, likely to review.
WHETHER ACTION COMMITTED TO AGENCY DISCRETION BY LAW
When statute doesn’t talk directly about judicial review, then perhaps committed to discretion (from
Overton Park):
1. Very narrow exception and applicable in situation in which no law to apply
2. Possibly discretion so great that there is no meaningful law to apply
Webster v. Doe-Guy in CIA outs himself, put on leave pending investigation, later fired and brings suit in
response arguing that CIA’s decision A & C/abuse of discretion and violated constitutional amendments.
CIA’s response was that it was unreviewable.
1. Statute: director may, in his discretion, terminate any officer/employee of Agency whenever he
shall deem necessary or advisable in the interests of the US
2. Possible Reasons:
a. Opening up secrets of the CIA to public record could compromise national security
b. Possible concern over integrity of employee could be compromised leading to leaks/more
open to some type of coercion through his “activities.”
3. HELD: Employment claims not reviewable as agency is given wide discretion such that there is
no applicable standard to apply. Statute simply states director shall deem necessary, which can
be for a number of reasons. The applicable review of that decision would simply be a cross
examination of the director to pick his brain about why he term’d the guy.
4. RULE: this statute positively assigns discretion to agency in affirmative unreviewable power.
PROSECUTORIAL DISCRETION
General rule in criminal courts is that decision not to bring charges/investigate is immune from judicial
review. But SCOTUS has recognized a few exceptions to general rule w/ admin agencies and their civil
enforcement responsibilities.
Dunlap v. Bachowski-Statute states that if seclabor finds probable cause to believe that violation has
occurred and hasn’t be remedied, he shall w/in 60 days bring civil action against labor org to set aside
the invalid election. In this case, secretary didn’t prosecute.
1. HELD-court to order sec to provide statement for reasons for decision not to bring suit and in
usual case, should base its review only on that statement (not substitute its jud for sec’s).
Heckler v. Chaney-Death row inmates claim drugs used for lethal injection, although approved by FDA
for med purposes stated on their labels, not approved for use in executions. Challenged that it was
unapproved use of drug in violation of Act’s prohibitions against misbranding/procedures. FDA decides
to stay out of it, gives explanation that didn’t have jurdx over unapproved use of approved drugs for
human execution as would interfere w/ criminal justice systems which are typically state run. Generally
only enforcement when serious danger to public health/schemes to defraud.
1. HELD-agency not using its coercive powers, thus doesn’t infringe upon areas that courts are
called upon to protect. Presumption of unreviewability for agency choice of non-enforcement
decisions when statute not explicit.
REGULATORY DELAY
Public Citizen Health Research Group v. Chao-public citizen wants agency to quit delaying and finish
rule making for permissive level of hexavalent chromium. Had been 9 years since petition to OSHA to
make more stringent limit, deadlines kept pushing back. At one point, waiting for leading study, but
then after it came out, timeline pretty much abandoned, suit followed.
1. Statute: set standard most adequately assured, to extent feasible, on basis of best evidence
that no employee suffer impairment.
2. HELD-concerns about waiting insufficient to justify delay: while limited data, many studies find
it carcinogenic enough to commence rule making and estimate exposure elvels that would result
in significant excess deaths.
RESOURCE ALLOCATION AND APPROPRIATIONS
Lincoln v. Vigil-Agency abandons regional plan to provide healthcare to Indians to put its resources into
national program. Potential beneficiaries sue the agency.
1. Statute-auth expenditures for benefit, care, and assistance of Indians; provide health care and
residential treatment centers.
2. HELD-Expenditures are lump sum appropriations reflecting congressional recognition that
agency must be allowed flexibility to shift funds w/ particular appropriations so that agency can
make necessary adjustments for unforeseen developments and changing requirements.
STANDING
§702-A person suffering legal wrong (legally protected interest) bc of agency action, or adversely
affected or aggrieved by agency action w/in meaning of relevant statute, is entitled to judicial review
thereof.
STANDING UNDER THE APA: The Zone of Interest
Association of Data Processing v. Camp-comptroller of currency ruled that national banks could sell
certain data processing services to their customers and other banks, competing w/ association’s
interests.
1. Statute: No bank service corp may engage in any activity other than the performance of
banking services for banks.
2. TEST
a. Did agency action cause plaintiff injury and
b. Is pl in the “zone of interest” to be protected by the statute?
3. Applied
a. Economic interests harmed
b. Association are those likely to be affected or at least one group that is.
CONSTITUTIONAL STANDING (look to statute and enabling act)
Requirements:
1. Injury-must be concrete and particularized, not conjectural or hypothetical
2. Causation
3. Redressability
Lujan v. Defenders of Wildlife-regulation by secinterior changing the geographical scope of their
consultation requirement from foreign nations to only w/in US and on high seas is petitioned by
Defenders. They argue that specifically two of their members who had gone to places abroad and tried
to witness endangered animals would suffer injury if they attempted to return to find those animals
extinct.
1. Injury-they have gone to places abroad and if USAID finances development projects, they argue
it will adversely affect the animals they want to see. Court says too hypothetical, can’t prove
they will return w/ certainty or more likely to visit those places
2. Causation-very slim, USAID only provides small portion of projects, not certain that no funding
will kill the project
3. Redressability-would only accord relief against secretary, not binding on other agencies funding.
Any relief not likely to redress injury in fact.
Massachusetts v. EPA-EPA argues greenhouse gas emissions inflict widespread harm, doctrine of
standing presents insuperable obstacle for jurdx. But court disagrees:
1. Injury-scientific evidence points to effects of climate change including rise in sea levels, which
has swallowed some of MA coastland which will only increase over course of century
2. Causation-although small role in global pollution, greenhouse emissions still contribute, and
fighting could be incremental step that should make it into court.
3. Redressability-while it may not reverse, it doesn’t follow that EPA doesn’t have duty to slow or
reduce emissions.
DISSENT-this little bit wouldn’t be likely to redress injury (loss of land), causation speculative at best, but
injury based on projections of sea levels in year 2100.
NOTE ON PROCEDURAL RIGHT TO STANDING-litigant whom congress has “accorded a procedural right
to protect his concrete interests can assert that right w/o meeting all normal standards of redressability
and immediacy. (was rejected in Lujan)
TIMING OF JUDICIAL REVIEW
§704-restricts review to “agency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court.”
CONCEPTS
1. Ripeness-must not be too early-must not only be final but have immediate and direct adverse
affect on petitioning party.
2. Mootness-must not be too late-such that equitable relief can no longer be had
3. Finality-as defined by APA-reached certain procedural level.
Abbott Labs v. Gardner-rule is to help people understand generics are same prescription drugs for much
less and requires putting established name w/ proprietary name. Challenged by co’s on basis that it is
final agency action as regulation after notice and comment period.
1. TEST
a. Evaluate fitness of issues for judicial decision and
b. Hardship to parties of withholding court’s consideration
2. APPLIED
a. Fitness-Resolving won’t require further admin proceedings as it is final agency action. As
soon as rule in effect, parties directly and immediately affected
b. Hardship-Consequences of complying and risk of harm is substantial if not in compliance:
injunctions, confiscations, etc.
Toilet Goods 1-Commissioner can suspend certification if maker refuses to permit duly authorized
employees of the administration free access to facilities, processes, etc. involved in the manufacture of
color additives.
1. ANALYSIS
a. Fitness-no idea whether or when such an inspection will be ordered or why-not satisfied
b. Harm-uncertain what inspections will take place as w/in agency discretion, no harm directly
as those affected wouldn’t have to “do” anything different, simply allow inspection.
POLICY MAKING
4 models:
1. Formal Adjudication
a. Universal Camera, Nat’l Petroleum Refiners Assn
b. Provisions provided for in §554, 556-557
c. Run typically by ALJ’s, formal proceedings involving fact-finding and decision-making
2. Informal Rulemaking
a. Most Common, section 553
b. State Farm, Chevron
3. Informal Adjudication
a. Catch all category for everything else. Ex: filing for passport, denied for insufficient
paperwork
b. Built into many of these types of adjudications are agency policies. Decisions may
determine the decision that are handed down
4. Formal Rulemaking
a. Sections 556-7; VERY RARE
b. Rule-making using a trial type formal procedure.
c. Buzz words that id it: on the record, after opportunity for agency hearing. Not simply
requiring hearing, but on record as well.
KEY TERMS: RULE MAKING
1. §551(4)-“rule” means whole/art of agency statement of general/particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describe the
organization, procedure, or practice req’s of agency
2. §551(5)-“rule making” means agency process for formulating, amending, or repealing a rule.
KEY TERMS: ADJUDICATION
1. §551(6)-“order”-means whole or part of final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of agency in matter other than rule making but including
licensing.
2. §551(7)-“adjudication”-means agency process for formulation of an order
BENEFITS OF EACH
1. Rule making
a. Allows for a lot of input of info regarding a decision
b. Puts those to be affected on notice of new rule
c. Don’t have to wait until controversy to make a rule
2. Adjudication
a. May provide opportunity to stimulate agency action
b. BC of nature of what you are trying to regulate, contextual facts are important (i.e.
situations where facts are very specific/complex)
c. Get enough cases of similar situations to get better idea of what the future rule ought to be.
CONSEQUENCES/NEGATIVES
1. Rule Making
a. High transaction costs?
b. Possibly too broad/general, opens itself up to litigation
2. Adjudication
a. Usually binding on only parties involved
b. May provide only those parties to feel the effects while competitors free to enjoy benefits
until rule made
c. Possible limited scope of evidence presented to make decision due either to limited action
or poor performance of administrators/attys.
POLICY MAKING AUTHORITY BY FORMAL RULEMAKING
Nat’l Petroleum Refiners’ Ass’n v. FTC-prior to rule making, job to promote fair competition through C
& D orders. If someone engaged in unfair practice, agency to proceed against them. Then 1969, agency
publishes notice of proposed rulemaking and promulgates rule requiring posting of octane #’s on gas
pumps. Oil co’s protest saying will mislead consumers. Agency wanted to make orders more efficient
and w/ clear cut rules, plus avoids singling out one violater.
1. Statute: says under 6g they can make rules and regulations for purpose of carrying out the
provisions of this subchapter. By providing rules that would define a violation would appear to
enhance purpose of carrying out the provision.
2. Takeaway/Rule-when statutes relatively ambiguous, typically interpret statute to give the
agency policymaking authority. Broadest light possible consistent w/ intent mentioned in
statute.
POLICY MAKING AUTHORITY BY ORDER/ADJUDICATION (FORMAL)
Excelsior Underwear, Inc-Supposed to be vote for employees over whether they want representation.
During the campaign period, employer mailed to employees letter talking about ramifications should
they unionize. Union then requests mailing list of to send their response. Prior to this, employers did
not have to provide a list.
1. Adjudication-“we now establish req that will be applied in election cases: w/in 7 days after
director approves election agreement…or director/board directs one…employer must file an
election eligibility list w/ names/adds of eligible voters. Failure shall be grounds for setting aside
the election whenever proper objections are filed.
2. However-did not apply this rule to the case at hand.
NLRB v. Wyman Gordon-Another election coming up and Wyman refuses to provide info, so union
challenges
1. Adjudication-majority approves the use of the Excelsior rule. Court elaborates that not a formal
rule, but the order itself is valid command and valid substantive regulation in valid adjudicatory
procedure. Therefore, fine to use the opinion of Excelsior to this case, but can’t create rule out
of opinion that applies to everyone.
2. Black Concurrence-Can create rule under adjudication, okay to apply rule made bc it is
precedent that guides future conduct as if it was a newly promulgated rule
3. Douglas/Harlan Dissent-can only make rule through proper process, not like this.
NLRB v. Bell Aerospace-Supreme Court unanimously upheld NLRB power in adjudication to change
standard for determining if certain employees were “managers” or not.
POLICY MAKING THROUGH INFORMAL ADJUDICATION
Through Agency Manuals:
Morton v. Ruiz-Ruiz does not live on reservation, speaks mostly native language, lives in predominantly
Indian area. Informal rule making, statute neither of which mention living on reservation requirement.
But Indian Affairs Manual, which is internal document limits to Indians “on res” and in jurdx in AK/OK.
1. HELD-improper bc wasn’t published to give notice about restriction to those claiming benefits.
It should have been published in Federal Register. The narrowing of benefits must be published
to give applicants notice. Also, agency should have followed own procedural rule that requires
it to publish and inform public of new req’s.
2. Generally-rules that affect substantial individual rights/obligations—for such rules to be lawfully
applied, need to be published in fed reg.
a. Also, agencies need to follow procedural rules they have adopted through notice and
comment
b. If procedural rule adopted is intended to benefit public and member relies to their
detriment when agency action violates it, court will invalidate the agency action.
POLICY MAKING THROUGH INFORMAL RULE-MAKING
§553:
a) This section applies except to:
1) Military/foreign affairs function of US
2) Matter relating to agency mgmnt, personnel or public property, loans, grants, benefits, or
K’s.
b) General notice of proposed rule-making shall be published in the Federal Register unless
persons subject are named and either personally served or otherwise w/ actual notice in
accordance w/ law. Notice shall include:
1) Statement of time, place, nature of proceedings
2) Reference to legal authority under which the rule is proposed; and
3) Either terms or substance of the proposed rule or description of the subjects/issues involved
EXCEPT when notice/hearing is required by statute, subsection doesn’t apply:
1. To interpretative rules, statements of policy, or rules of agency org, proc, or practice; or
2. When agency for good cause finds (and incorporates the finding and brief statement of reasons
therefor in rules issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.
c) After notice, agency shall give those interested opp to participate through submission of written
data, views, arg’s w/ or w/o opp for oral presentation. After consideration of relevant matter
presented, agency shall incorporate in the rules adopted a concise general statement of
basis/purpose.
d) Required publication or service of rule shall be made no less than 30 days prior to effective date
except:
1) Substantive rule which grants/recognizes an exemption or relieves restriction
2) Interpretative rules and statements of policy or
3) As otherwise provided by agency for good cause found
Each agency shall give interested person right to petition for issuance, amendment, or repeal of a rule.
What this means: BASIC PROCEDURAL REQUIREMENTS
1. Published notice of proposed rule making
2. Opportunity for public comment
3. Publication of final rule (552) and concise general statement of rule’s basis and purpose.
NOTICE
Chocolate Manufacturers Assn v. Block-Statute states the secretary shall prescribe by regulation
supplemental foods to be made available in school programs. To degree possible, secretary shall asure
that the fat, sugar, and salt content of prescribed foods is appropriate.
1. Notice-proposed rule didn’t exclude flavored milk from the program and thus comments largely
from experts saying that it should be excluded bc of high sugar content, bad economics, health,
etc.
2. Rule-eliminated flavored milk from WIC subsidies which was challenged by pl bc it didn’t tell
them time, place, nature of proceedings.
3. HELD-remanded to allow them to reopen comment period bc of inadequate notice since rule
was changed based on comments received but needed to allow opp for comments on choc milk
limitation specifically
4. RULE
A. Notice needs to be adequate to allow for meaningful and informed comment
B. If changes in original plan are in character w/ original scheme and final rule is logical
outgrowth of the notice and comments already given, then notice adequate.
CONCISE GENERAL STATEMENT
Some basic rules/developments:
1. APA-final rules shall include concise general statement of basis/purpose
2. Nova Scotia-don’t expect agency to discuss every item of fact/opinion in submissions. Do
expect that if judicially reviewed, statement mandated will enable court to see what issues were
ventilated and why agency reacted as it did.
3. Industrial Union AFL CIO v Hodgson-entitled careful ID by secretary when standards challenged
to give reasons why chose one course rather than another. Where choice based on facts,
secretary must in form and substance find those facts from evidence in the record. If none
exist or don’t provide answer, he should at least state and ID the considerations he found to be
persuasive.
4. Reytblatt v US Nuclear Regulatory Comm-need not address every comment, but must respond
in reasoned manner to those that raise significant problems
5. Nat’l Mining Assoc v Mine Safety & Health Admin-it is enough if agency’s statements Id major
policy issues raised in rulemaking and coherently explain why agency resolved issues as it did.
OTHER PROCEDURAL ISSUES: EX PARTE COMMUNICATIONS
1. Some basics
a. In judicial setting/adjudication-due to due process, ex parte contacts banned
b. And not allowed in Formal Rule making
HBO v. FCC-FCC regulation that limits pay tv networks and what they can provide, in order that basic
broadcasting don’t suffer. But during informal rule making, participants seek out and talk to
commissioners after comment period closed and record should have been closed while commission
deliberates.
1. HELD-When agency justifies its actions by reference to info only in public file while leaving out
other relevant info that was presented, reviewing court can’t presume agency acted properly
and must treat as fictional account of actual process and must per force find actions arbitrary
2. RULE-In theory, after comment period, no ex parte contacts after notice put out
a. But if they happen, need to put them in the docket during comment period
b. If you end the comment period, then they wouldn’t be able to make it on the record, which
would mean that it cannot be relied on as would be automatically A & C bc not in record.
Action for Children’s TV v. FCC-No other cases have gone as far as HBO, which court in this case says:
1. If we go as far as HBO in its ruling in ensuring “whole record,” why not take it further to make
available every status inquiry from congressmen, or editorial they read that night.
2. In light of what must be presumed to be congress’ intent not to prohibit or require disclosure of
all ex parte contacts during or after the public comment stage.
OTHER PROCEDURAL ISSUES: POLITICAL INFLUENCE
Sierra Club v. Costle-Regulations for NSPS levels for SO2. EPA gets 300 late comments from coal
industry after close of comments from president, congressmen, senators, industry.
1. RULE-have to justify rule w/ what’s on the docket, not everything else needs to be in the record,
but those significant in the decisionmaking procedure need to be included.
2. Central Relevance Test-any info from ex parte communication of central relevance must be in
record. This was in congressional statute and court combined it w/ APA standard.
3. Political Influence Ex Parte Communications-executive can contribute after comment period
and conversations don’t necessarily need to be docketed BUT congressional contacts during
rule making are okay as long as input focused on merits of rule and didn’t apply extraneous
pressure on agency.
OTHER PROCEDURAL ISSUES: IMPARTIALITY/PREJUDGED AGENCY VIEW
Association of National Advertisers Inc v. FTC-Objections to secretary’s involvement as he had already
been opposed to advertising to children. Had expressed his views on TV and in speeches/memos.
1. Regulation-recommending issue rule prohibiting all tv ads aimed at children under 8. Three
options for comment by public:
a. Ban all tv ads for product directed to, seen by audience w/ significant proportion of kids
b. Ban tv ads for sugared products to adiences significant kids
c. Require tv ads for sugared products not included in (b) which is composed of kids to be
balanced by healthy ads.
2. Precedents/rules
a. Cinderella-not allowed to rule in decision if had judged the facts and law in advance of
hearing case
b. Circuit Court-should be disqualified only when clear and convincing showing that agency
member has unalterably closed mind on matters critical to disposition of proceeding.
c. Applied here-his remarks as a whole represent discussion and perhaps advocacy, but
insufficient to disqualify, plus they were prior to notice of rulemaking.
HYBRID RULEMAKING
General descriptor for procedures that are more adjudicatory/formal rule making but incorporated in
informal rule making. Can come from 3 sources:
1. Statutory Hybrid (Sierra Club) where statute has extra procedures
2. Agency Hybrid-agency decides they want more formal process-possibly to survive judicial review
or is a hot topic issue
3. Judicial Hybrid-judicial “meddling” in requiring larger procedure than bare min of §553
Vermont Yankee v. NRDC-Process for opening nuclear plant involves application to build, license to
operate. One of parts of license is providing env impact report. Benefits of plant must outweigh econ,
social, and environmental costs, and health/safety of public will not be endangered. Circuit agrees w/
NRDC that agency procedures inadequate.
1. HELD-Absent const’l constraints or extremely compelling circ’s, admin agencies should be free
to fashion own rules of procedure and pursue methods of inquiry capable of permitting them to
discharge their duties w/ §553 the minimum.
2. Yet-we saw in HBO, Chocolate, Sierra Club the judiciary arguing procedures insufficient. To
reconcile, from now on, argue that the decision is A & C, not attack the procedures.
3. RULE-statutory and agency hybrids are okay, but judicial no bueno.
EXEMPTIONS TO §553
Previously mentioned that interpretive rules, general statements of policy, and rules of agency org, proc
and practice exempt. Which led to problem:
1. Congress passes broad statute, agency follows w/ regulations containing broad language
2. As years pass, agency issues circulars or guidance or memos explaining, interpreting, defining
and often expanding commands in the regulations
3. Law is then made, w/o notice and comment, w/o public participation and w/o publication.
Then the court caught on:
Nat’l Family Planning & Reproductive Health Assoc. v. Sullivan-1988 regulation put gag rule on
nurses/docs in project from discussing abortion or referring to others for info on it. Then 1991, for
concern over inhibition on doc/patient communication, president orders sec which then is put in memo
to allow for docs to be able to give complete medical info to women. But prior interpretation was that
docs can’t tell patients that abortion is an option no matter what.
1. Enabling Act: none of funds appropriated shall be used in programs where abortion is method
of family planning.
2. Regulation-may not provide counseling concerning use of abortion as method of family planning
or provide referral for abortion as method.
3. Prior Scotus interpretation-doctors cannot tell patients that abortion is option, no matter what.
4. HELD-Memo is change in position which is legislative decision, subject to notice and comment.
Ways to tell:
a. Total change in direction
b. Prior interpretation upheld by SCOTUS
c. Agency’s stated intent or label is not dispositive
d. Examples of interpretive rules:
1) Rule that clarifies statutory term
2) Rule that reminds parties of existing statutory duties
3) Regulation that “merely tracked” statutory req’s and thus explained something statute
already required.
Hoctor v. USDA-Guy has facility for wild animals, has agent from agency come out and tell him how high
to build his fence, later interpretation puts minimum footage which puts him in violation.
1. Regulation-structural strength-facilities must be constructed of such material/strength as
appropriate. Facilities shall be sound and maintained.
2. Interpretation-8’ is the standard, thus his 6’ is inadequate
3. HELD-need to have notice and comment, as setting rule which is legislative
4. RULE-Legal Effects Test
a. Legislative rules defined as those directly altering rights of public, while interp’s and
statements defined as merely describing how agency intends to act in future in interpreting
and applying existing norms. Test asks:
1) Whether in absence of rule there would not be adequate legislative basis for
enforcement action or other agency action to confer benefits or ensure perf of duties,
2) Whether agency has published rule in Code of Fed Regulations
3) Whether agency has explicitly invoked general legislative authority, or
4) Whether rule effectively amends prior legislative rule.
5) If answer to any is yes, then it is legislative
A NOTE ON INTERPRETIVE RULES: rules that interpret existing legal duties. Must not add anything to
existing legal rules, must merely inform the public of the agency’s views on the meaning of existing
statutes or regulations.
NOTE ON GENERAL POLICY STATEMENTS: generally don’t carry force of law, so must convince relative
tribunal that it flows from some regulation/statute that does carry the force of law. (most that past
muster is “do X and it is violation, do Y and it is not.”)
Lincoln v. Vigil-Agency decides to put lump sum appropriations into nat’l program and close local center
in NM. Held that this decision is memo of agency policy, not a rule and even if it is a rule, deals w/
agency mgmnt or personnel/resources. Exempt from §553.
DUE PROCESS HEARING RIGHTS
Two questions:
1. Is the interest of the type the constitution protects by requiring certain procedures before
interest can be taken away? (Liberty or Property)
2. Assuming it is, what procedures does the constitution require to ensure DP?
5th Amendment-Fed Gov can’t deprive someone of life, liberty, property w/o due process of law
14th Amendment-no state shall make or enforce any law that abridges privileges/immunities of citizens;
nor shall deprive person of life, liberty, property w/o due process of law
Goldberg v. Kelly-program gives out cash benefits to dependent families. NY wanted to take
beneficiaries off the rolls based on procedure that requires informal hearing procedure where recipient
could tell their side of story. If state determined no longer qualified, could stop payments then recipient
could appeal for de novo admin hearing w/ retroactive payments if found to be erroneously terminated.
1. HELD-Post termination hearing comes too late, benefits term’d w/o prior notice and hearing.
2. LOSS OF GOV’T BENEFITS = PROPERTY INTEREST
3. TEST/ANALYSIS balances gov’t efficiency and summary adjudication against risk of erroneous
deprivation/adequate safeguards
a. Efficiency
1) Saves gov’t funds by stopping payments promptly
2) Most term’s are accepted w/o challenge anyway
3) Reduces time and energy by reducing #’s of hearings actually held
b. Risk of erroneous deprivation
1) State not w/o other ways to minimize increased costs. Can provide for prompt pretermination hearing
2) Interest of uninterrupted receipt of assistance bc depend on them
3) Gov’t has interest in providing for poor/hungry: promote social well being
NOTE ON PROPERTY: modern concept is more than just an abstract need or desire for it, must have a
legitimate claim of entitlement. Usually embedded in law that specifies conditions that if met,
entitlement recognized
Bd of Regents v. Roth-Guy signs employment K w/ university for one school year w/ set end date. He is
then not rehired at the end. He argues his rights are being infringed or unreasonably deprivated.
1. Rights being infringed?
a. Liberty-capacity to do things in pursuit of happiness which court rejects because there are
no charges against him, or indication that his name, reputation or integrity at stake.
b. Property-no statute that outlines requirement that he has satisfied to acquire a benefit.
2. HELD-No interest that required protecting.
Perry v. Sinderman-College level teacher in TX, employment governed by one year K, but had the job for
a long time w/ tradition of K being renewed. Argues protected interest based on course of dealing
1. HELD-If he can show that he has interest under state law then he may have a protected right
Arnett v. Kennedy-Where grant of substantive right inextricably intertwined w/ limits on procedures
which are to be employed in determining that right, litigant must take the bitter w/ the sweet (gets the
right, but also the limited procedures in the same statute).
Bishop v. Wood-although NC policeman has many aspects that resemble “for cause” employment
(protected right), it is actually “at will” and not protected.
Cleveland Bd of Educ. v. Loudermill-Guy fired as security guard for falsely stating on app he hadn’t been
convicted of a felony. As classified civil servant, could be term’d only for cause and entitled to post term
admin review of his dismissal.
1. HELD-Although legislation conferring right also sets out procedural mechanism for enforcing
that right the two can’t be separated; in this case, court says due process provides that certain
substantive rights can’t be deprived unless constitutionally adequate procedures.
RECONCILING ARNETT AND LOUDERMILL WITH A RULE: when statutorily creating prop right while
simultaneously defining the procedures for depriving that right, normally those two cannot be
separated. However, due to Loudermill, due process still protects against deprivation of certain
substantive constitutional rights that don’t have constitutionally adequate procedures.
ADEQUATE CONSTITUTIONAL PROCEDURES
Mathews v. Eldridge-Under SSA, there is process to terminate disability benefits which Eldridge subject
to and is term’d and not allowed for hearing prior to term decision. Court develops factors to assess
adequacy of proceeding under due process clause:
1. Private interest that will be affected by official action
2. Risk of erroneous deprivation
3. Gov’t interest, including function involved and fiscal admin burdens that add’tl safeguards
would cost
4. Applied (how different from Goldberg):
a. Private interest is repayment from disability insurance already paid in which the guy likely to
have other resources to supplement his income. But in Goldberg, was the bottom line for
survival
b. Risk-worker must show by medically acceptable means that he isn’t only unable to do
previous work, but cannot engage in any other kind of substantial gainful work which exists
in the nat’l economy
c. Gov’t interest-financial costs alone not controlling—but might outweigh interests of the
individual. In this instance, don’t want gov’t to be paying those not disabled.
ENFORCEMENT
Detecting, documenting, and proving violations require massive amounts of info. 3 main devices for
obtaining info:
1. Physical Inspections of regulated activities
2. Issuance of subpoenas requiring production of docs or tangible objects
3. Imposition of orders requiring creation and preservation of records
Some other notes:
1. §555-process, requirement of report, inspection or other investigative act or demand may not
be issued, made, or enforced except as authorized by law (need legal authority)
a. There is not authority for enforcement inherent in agency, have to look to enabling act.
2. Cannot violate the 5th (self-incrimination) or the 4th (right against unreasonable search/seizure)
PHYSICAL INSPECTIONS
Marshall v. Barlow’s Inc.-OSHA shows up unannounced and Barlow refuses them to enter and demands
search warrant. Secretary argues that should not need warrant. Can conduct reasonable warrantless
searches to ensure people are safe.
1. HELD-Have to have a warrant
2. RULE-agency usually needs warrant for inspection of business that is based on proof that
inspection complies with reasonable admin or legislative standards
a. Exception-if business is pervasively regulated
3. Probable Cause Standard-relaxed, for purposes of admin search, probable cause justifying
issuance of warrant may be based not only on evidence of violation but also showing that
reasonable leg or admin standards are satisfied.
NOTES:
1. Pervasively regulated-often biz has to get license to operate and required to keep detailed
records or sort of biz that traditionally heavily regulated.
2. Reasonable legislative or administrative standard:
a. Objective determination
b. Look for agency strategy or plan of inspection—not just arbitrary choice to inspect
c. Reasonable in view of purpose of the inspections
d. Reasonably detailed
e. Reasonable overall.
COMPULSORY PRODUCTION OF INFORMATION
Method of obtaining info through issuance of order/subpoena. Today most statutes routinely contain
provisions authorizing agencies to issue them, enforceable through the courts.
Subpoena Req’s:
1. Inquiry w/in authority of agency-info sought related to matters w/in authority of agency
2. Demand for info not too indefinite or burdensome on the party
3. Info reasonably relevant to a matter of legitimate agency concern/enforcement purposes
COMPILING VALUABLE INFORMATION
Tactic of requiring regulated parties to maintain certain records concerning their regulated activities (i.e.
the IRS requiring taxpayers to retain info documenting deductions they have claimed)
Potential Problem: requiring entities to compile evidence that may eventually incriminate them
Ruckelshaus v. Monsanto Co.-when applying for approval of pesticides, agency might use data for
another company that wants to make a pesticide. But Monsanto spends millions for the application,
and it is trade secret.
1. ISSUES
a. Does Monsanto have property interest in the info for its applications?
b. If so, does EPA’s use of it effect a taking through disclosure to qualified members?
c. If taking, is it for public use?
d. If public use, does statute adequately provide for just compensation?
2. HELD
a. Yes,
b. Determining if a taking (think Penn Central)
1) Econ impact on claimant
2) Nature of gov’t action
3) Interference w/ reasonable investment-backed expectations
4) Last one so overwhelming, clearly a taking (post statute data had no expectation,
neither did the pre statute data, but data between enactment and amendments did)
c. Yes
d. Arbitration requirement not adequate compensation.
SELECTIVE ENFORCEMENT
FTC as an example:
1. Mission-prevent unfair methods of competition in or affecting commerce, and unfair or
deceptive acts or practices in/affecting commerce.
2. Criticisms
a. Too lenient—waiting for complaints
b. Too passive
c. Spending too much time on trivial cases
Moog Industries v. FTC-Two enforcement proceedings combined. Moog has order against it, seeks
review in court of appeals that denies motion of abeyance of order. Niehoff tries to get abeyance from
FTC which is denied, but on review, is granted by the Circuit court.
1. Circuit Courts:
a. 8th cir. Respects agency discretion
b. 7th cir. Gets involved
2. HELD-only review allowed of agency decision is for patent abuse of discretion; commission
alone empowered to develop enforcement policy best calculated to achieve ends contemplated
by congress and allocate resources in manner efficient and economical.
Universal v. FTC-Plumbing fixtures sold by universal nationwide. Policy is to discount to customers who
purchase by the truckload. FTC argues discriminates against those clients that are unable to purchase in
bulk, can’t compete with the big guys. FTC denies abeyance, but again the court of appeals grants it
thinking they have discretion.
1. HELD-didn’t have authority to do so, averments made don’t show patent abuse of discretion.
However, doesn’t necessarily close the door on opportunity to show abuse in the future.
2. Further-notes that petitioner tried to point out that it was being singled out as all competitors
doing the same, but even if it did, agency not obligated to withhold enforcement. But FTC does
not have unbridled power to institute proceedings that will arbitrarily destroy one of many
violators in an industry.
AGENCY ENFORCEMENT ORDERS
GE v. Jackson-CERCLA legislation involves clean up of hazardous waste; wants those that are responsible
to clean it up with options for enforcement:
1. Negotiate settlement w/ PRP’s (potentially responsible parties)
2. Conduct cleanup w/ fund money and seek reimbursement from PRP through suit
3. File abatement action to compel PRP to conduct cleanup or
4. Issue UAO instructing PRP to clean site (unilateral administrative order)
EPA issues UAO for GE, which gives them options:
1. Comply, seek reimbursement as not the PRP
2. Not comply and EPA may bring action to enforce order or clean and sue to cover but if not
comply, if court concludes that they willfully failed to comply w/o sufficient cause it may impose
fines (37.5k/day) and other heavy fines.
MAIN ISSUE-whether UAO deprives GE of due process as order comes first, then given option, so go
back to due process analysis
1. Protected Interest?
a. Costs of compliance, fines and damages (legit interest)
b. Brand value, stock price, etc. (not legit because don’t meet standard of stigma plus
something which court has required)
2. Adequate Due process?
a. Court says that enormous fines can still satisfy due process if fines subject to a good faith or
reasonable grounds defense. Also no constitutional violation if imposition of penalties
subject to judicial discretion.
b. NOTE-This portion looks at significance or private interest, gov’t interest, risk of erroneous
deprivation/additional safeguards.
PUBLIC ACCESS TO GOVERNMENT RECORDS (FOIA)
§552 Public Info; agency rules, opinions, orders, records, and proceedings
a) Each agency shall make available to the public info as follows
1) Each agency shall separately state and publish in Fed Reg for guidance of public
(rules/regulations)
2) Each agency in accordance w/ rules, shall make available for public inspection and copying
(final opinions, orders, policy statements, interpretive rules not required under above)
3) Except w/ respect to records under above, each agency, upon request for records which:
i)
Reasonably describes such records and
ii)
Is made in accordance w/ published rules stating time, place, fees (if any), and
procedures to be followed, shall make records promptly available to any person.
Section doesn’t apply to matters that are:
1. Classified/defense/foreign policy
2. Related solely to internal personnel rules/practices
3. Specifically exempted by statute
4. Trade secrets and confidential commercial or financial info obtained from a person
5. Inter/Intra agency memos/letters which ordinarily not discoverable in litigation
6. Personnel/med files and similar that disclosure would be invasion of privacy.
7. Records/info compiled for law enforcement purposes, but only to extent production doesn’t
cause certain problems (privacy/prejudice/informant info)
8. Certain matters relating to regulation of banks/financial institutions
9. Geological/geophysical info and data
10. Critical infrastructure.
If not provided, can file action in District court of complainant, ppb, or location of records.
NOTE ON SCOPE: agencies include not only exec agencies and independent ones, but also gov’t
owned/controlled corps and Exec office of the President, but not to potus, personal staff, or entities that
exist solely to advise the president. Doesn’t cover congress or fed courts.
WHAT IS AN “AGENCY RECORD”
Two requirements to be record:
1. Agency must either create or obtain the requested material
2. When request made, material must have come into agency’s possession in the legitimate
conduct of its official duties
Kissinger v. Reporters for Freedom of the Press-Kissinger has convo’s either dictated/recorded, which
compiled into summaries. These summaries, after he left office, were moved to Rockefeller estate, and
some to Library of Congress. 3 requests are made, prior to them moved out of state dept, after moved
out of state dept (2). Analysis of whether violation for not producing:
1. Improperly
2. Withheld
a. If docs removed from agency, then not improperly withheld since no longer w/in the
agency. Can’t be expected for them to sue to get them or go through exorbitant manners to
retrieve, only to produce when requested.
3. Agency records
a. This is what is most at issue-not agency records of state dept as done while special assistant
to potus. Also, just bc they were physically in state dept doesn’t make them agency docs.
EXEMPTIONS FROM DISCLOSURE
DELIBERATION-EXEMPTION 5
NLRB v. Sears Roebuck-Sears wants records relating to the filing and non-filing of complaints by the
NLRB
1. RULE-EXEMPTION 5 protects inter-agency or intra-agency memo’s letters which would
ordinarily not be discoverable in litigation
2. HELDa. Memos relating to non-filing are not exempt-final agency action, no harm in releasing as
final decision reached
b. Memos relating to filing are exempt-include legal strategies of future/eventual litigation,
could be very problematic. Part of deliberative process
1) A sort of test: is it pre-decisional? Does it reflect agency’s deliberative process?
PRIVACY-EXEMPTION 6?
DOJ v. Reporters Committee for Freedom of the Press-FBI compiles rap sheet data that they share w/
law enforcement agencies where they aggregate. Reporter compiles info on figure of organized crime
and requests full rap sheet.
1. BRIGHT LINE RULE-Rap sheets out of bounds, “private interest in maintaining practical obscurity
of rap sheet info will always be high.
LAW ENFORCEMENT-EXEMPTION 7
FBI v. Abramson-Info compiled for correspondence to the White House that references bunch of docs
that were compiled for law enforcement purposes. Issue-does taking exempted records and compiling
them for non-law enforcement purposes, are they still exempt.
1. HELD-info contained originally compiled for law enforcement doesn’t lose exemption where info
reproduced or summarized in new doc for non-law purpose, but continues to meet threshold.
(essentially the same info).
ACCESS TO DELIBERATIONS (GOV’T IN THE SUNSHINE ACT)
Requires all meetings of fed agencies headed by “collegial bodies” to be open to the public. Applies to
agencies headed by multimember bodies, which composed of two or more individual members, a
majority of whom are appointed to such position by potus and w/ advice of senate.
1. Meeting-deliberation of at least # of members required to take action on behalf of agency
where deliberations determine or result in joint conduct or disposition of official agency biz.
2. Requirementsa. Enough members for quorum or subpart that has power to act on behalf
b. Only if agency members gather to deliberate
c. Must determine or result in joint conduct/disposition of official agency biz. (excludes
informal background discussions, etc.)(meeting can occur w/o resulting in official agency
decision)
FCC v. ITT-Subcommittee of FCC abroad to try and open up markets to telecomm companies. One of
co’s that wants increased trade wanted info on those meetings, which is denied.
1. HELD-discussions not sufficiently focused on discrete proposals, no deliberations that determine
or result in joint conduct or disposition of official business, more informal discussions.
2. RULE-fact that discussion is “pre-decisional” doesn’t exclude it from act. Meeting s in this case
not official agency business.
EXEMPTIONS-9(B) Very narrow Exception (NOTE: NO SIMILAR EXCEPTION LIKE FOIA IN
PREDECISIONAL MEMORANDA)
Common Cause v. NRC-NRC had three different meetings in question, in two they try and close certain
budgetary discussions arguing exempt as would prevent effective agency action.
1. Exemption 9(B)-permits closing of meetings if premature disclosure of the discussion would be
“likely to significantly frustrate implementation of a proposed agency action. Court gives four
examples of exemption situations:
a. Agency might consider imposing embargo on foreign shipment of certain goods (if known,
all goods might be exported before agency could act, effectiveness destroyed)
b. Agency might discuss whether to approve of proposed merger (premature public disclosure
might make it impossible for two sides to reach agreement)
c. Disclosure of agency’s proposed strategy in collective bargaining w/ its employees might
make it impossible to reach agreement
d. Disclosure of agency’s terms and conditions for purchase of real property might make
proposed purchase impossible or drive up the price.
2. HELD-budget meetings not one of these exemptions, after reviewing the transcripts of closed
meetings, none of the portions comes w/in any exemptions. However, some specific items at
commission budget meetings might be exempt, justifying closing portions on particularized
basis, just none here.