ADMINISTRATIVE LAW CASE LIST
Subject
Rule of Law/Policy
Case
Holding/Dissent
Rulemaking
§ 553- informal rulemaking
§ 556-57 formal
rulemaking (rarely
happens)
Non-legislative rules
exempt from § 553
rulemaking
Bi-Metallic- agency
agreed to make a
broad evaluation
increase
APA- does not tell agency
when to use
rulemaking/adjudication.
Rulemaking is appropriate
when there is across the
board action that affects a
large # of people in the same
way, and this decision is
based on legislative facts.
Rulemaking is more cost
efficient, and there is political
accountability.
Londer: the city
assessed a special tax
for a neighborhood
without an
opportunity for a
hearing.
If an action should have
proceeded as an adjudication,
if the agency pursues
rulemaking instead, it may
violate their due process.
Adjudication is appropriate
when the agency decision
affects a few people and they
are affected uniquely and on
individualized grounds, and
the decision is based on
judicial facts. This argument
is a difficult one to make
however, See South Terminal
Corp. v EPA.
FCC v Fox Television
Stations: the FCC is
both an independent
agency AND an
independent
establishment
Justice Scalia: There is no
reason to magnify the
separation of powers
dilemma posed by the
headless fourth brach- to do
so would be a violation of the
unitary executive by Article
III judges.
Justice Stevens: independent
establishments/agencies like
the FCC/FTC cannot be
§ 551(4) rule means the
whole or part of an agency
sttement of general or
particular applicability and
future effect designed to
implement, interpret, or
prescribe law or policy or
describing the
organization, procedure, or
practice requirements of an
agency…
Adjudication
Separation of Powers
§§ 554, 556-57- formal
adjudication procedures
APA doesn’t have informal
adjudication procedures
but § 555 applies to all
adjudications
§ 551(7) adjudication
means agency process for
the formulation of an order,
which is (6) the whole or a
part of a final disposition,
whether affirmative,
negative, injunctive, or
declaratory in form, of an
agency in a matter other
than rule making but
including
Independent agency: one
that is not located within a
department
Independent
establishment- one that is
insulated from president
because can only remove
“for cause”
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considered an arm/eye of the
executive because do not
serve at the president’s will.
Better viewed as an agent for
congress. (and for that reason
should make it give a reason
why it changes policy)
Justice Breyer- with
Stevens, Souter & Ginsburg:
An agency’s compartive
freedom from ballot box
control makes it all the more
important that courts review
its decision-making to assure
compliance with applicable
provisions of the law
Separation of powers
Nondelegation doctrine:
the constitution vests all
the legislative power in
Congress, thus it precludes
the elegation of the
legislative power to any
other body. However, the
constitution permits
subsidiary lawmaking to be
delegated to
president/agencies, per the
necessary & proper clause.
Schecter Poultry: one
of the new deal cases,
and one of the few
that the court
invalidated based on
the nondelegation
doctrine
The delegation of lawmaking
authority must provide an
intelligible principle to guide
the executive.
Other potential problems are
- a statute’s breadth of poweropen – ended standards are of
greater concern when such
sweeping jurisdiction is
involved, as opposed to a
narrow field of administrative
authority
-Recipient of authority- here,
the recipient of some
authority was a private party
which is of concern because
they are not accountable and
self interest may lead to abuse
- procedural sefeguards: The
APA now provides this, so les
of a concern, but in this case
there was no APA yet to
constrain agency
- criminal sanctions: the
creations of criminal offenses
is problematic because that is
a legislative function and
because of the severe
consequences
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Separation of powers
Nondelegation doctrine
prevents courts from
delegating legislative
authority without an
intelligible principle. To
find such a principle, courts
look to the purposes of the
statute to provide content
for open-ended standards.
Another method is to rely
on the history and
regulatory context to find
the necessary standards.
By interpreting the statutes
to find a standard, the cout
effectively constrins agency
discretion
Bicameralism &
Presentment- Article I § 7,
cl 2 & 3
Separation of powersjudicial
Separation of powersjudicial power
Article III, § 1 vests judicial
power in one supreme
court and in such inferior
courts as the congress may
from time to time ordain
and establish. These judges
hold their officiers for good
behavior and
compensation cannot
diminish while in office.
Adiministrative law judges,
on the other hand, lack life
tenure and salary
protections thus they
cannot be Article III judges,
yet their inquiry into facts
and application of the facts
to the law is a instrinsically
judicial power.
7th Amendment provides
the right to a jury in suits at
common law, which are
those actions that would
Whitman v American
Trucking
Associations: where
the court thought it
better to interpret
the statute narrowly
then find a nondelegation violation
INS v Chadha:
legislative veto
violates
bicameralism and
presentment
Clinton v City of new
york: line item veto
violates
bicameralism and
presentment
Commodity Futures
Trading Comm’n v
Schor: upholding
administrative
adjudication of
common law
counterclaims
Granfinanciera:
finding that actions
to set aside
fraudulent
Schor Test
(1) the extent to which the
essential attributes of
judicial power are
reserved to Art. III, and
conversely the extent to
which the non-Article III
judges exercise
jurisdction/powers
normally reserved for
Article III court
(2) Character of the right –
origins and importance
(3) Congress’ reasons for
delegating adjudicatory
authority to an agency,
rather than to the courts
But see granfinancieraimplying public right= per se
constitutional
This case seems to say that
public rights adjudication by
agencies is per se permissible
(unlike schor where its only
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have a common law right to
a jury trial in 1789. The 7th
amendment will never be
violated in administrative
adjudications regarding a
public right.
Separation of powersexecutive power
Separation of powersexeucitve powerAppointments clause
Article II § 1 of the
Consitution provides that
the executive power shall
be vested in a President
and contemplates the
practical necessity of
officers of the US who will
perform executive
functions within the
executive branch. The idea
is that the President
oversees a single unitary
executive, and thus he must
have complete control over
all components of the
execution of law.
Moreover, Article II § 3
dictates that the President
shall take care that the laws
be faithfully executed. This
requires that the President,
at the very least, have the
power to remove officials
for cause.
Article II, § 2, cl. 2 provides
that the President shall
nominate, and by and with
the advice and consent of
senate, shall appoint…all
other officers of the US
whose appointments” are
not provided for by the
conveyances of
property were
private rights subject
to the 7th
amendment. Also
redefined public
rights
one factor). Additionally,
public rights definition was
broadened to include some
rights arising between private
parties. Thus, in cases not
involving the fed. Govt, the
crucial question is whether
congress created a seemingly
private right that is so closely
integrated into a public
regulatory scheme as to be a
matter appropriate for agency
resolution with limited
involvement by Article III
judiciary (but note- found
that it was a private right, so
is this dicta?). Congress
cannot however, convert a
private right to a public right
by making it staturory.
Buckley v Valeo: FEC
members were
appointed in a
different manner and
given enforcement
and rulemaking
powers- finding a
violation the court
Three issues raised by the
appointments clause is
(1) whether the official is
an officer of the US as
to be subject to the
clause
(2) whether the officer is
a principal officer
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constitution. Moreover, the
Congress may vest the
appointment power for of
such inferior officers as
they think proper, in the
president alone, the courts
of law, or in the heads of
departments. Thus, any
appointee exercising
significant authority
pursuant to the laws of the
US as an officer of the US
must be appointed in the
manner prescribe by
Article II
stripped them of this
power and allowed
them only to
maintain
investigatory and
public information
functions
Separation of powersexeucitve powerAppointments clause
Morrisson v Olson:
Separation of powersexeucitve powerAppointments clause
Morrisson v
Edmonds
Separation of powersexeucitve powerAppointments clause
Separation of powers-
Court of law: any court that
exercises the judicial power
of the united states even if
it is not specifically
referenced in the
constitution
Head of department: refers
only to a part or division of
the executive government
as the department of state,
treasury etc. expressly
created and given the name
of a department by
congress
Head of a department: Art.
Freytag v CIR:
upholding
appointments of
special trial judges by
the CJ of the tax court
because the court is a
court of law – and the
court cannot be a
department because
it is not called
department
Free Enterprise Fund
who must be
appointed by the
president and
(3) Whether the
particular means
chosen for the
appointment of an
inferior officer is
proper
Whether an Officer is
principal v inferior turns on
(1) Whether tenure is
limited
(2) Whether jurisdiction
is limited
(3) Whether removable
by an officer under
the direct control of
the president
(4) Whether the officer
has limited duties
Whether an officer is an
inferior officer is determined
by whether he is closely
supervised
(NOTE- note clear whether
this is the new test- or
whether still olson- so do
both)
“court of law”, allowed to be
vested with appointment
authority of inferior officers
pursuant to the constitution
A department is a
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exeucitve powerAppointments clause
II of the constitution
provides that an inferior
officer may be appointed
by a head of a department.
Under Freytag v Cir a head
of a department was
defined as a part or
division of the executive
government such as the
department of state, which
is expressly created and
given the name of a
department by congress.
Recently, however, the
court has revisited it’s
definition to include
freestanding agencies-
v Public Accounting
Oversight Board:
finding that the SEC
commissioners are
the “head of a
department.”
Separation of powersexeucitve powerSupervise
Executive interference- if
the executive interferes to
an extent that the agency is
not relying on its expertise,
the court canot defer)
Separation of Powers Removal
Removal power is arguably
one of the most important
powers held by the
President.
New York v Reily:
finding that the EPA
was not improperly
relying on the
opinion of the
President’s Council
on Competitiveness
Myers: the president
has inherent power
to remove executive
officials, invalidating
a statutory provision
requiring senate
consent for the
removal of a
postmaster from
office
(but see Humphreys
executor)
Humphreys Executor:
congress may restrict
presidential removal
powers when the
official is quasilegislative, quasijudicial
Allen v Barnhart:
cautioning against
harmless error
because it may
violate the reasons
requirement.
Separation of Powers Removal
Reviewing Agency
Decisions
The reasons requirement:
Agency decisions can only
be sustained on the basis of
the reasons given by the
agency. The court may not
uphold the agency’s
freestanding component of
the executive branch not
subordinate to or contained
within any other such
component. The several
commissioners of such
component, not the chairmen,
are the “head of this
department,”
Harmless error may occur
when an error is so minor or
technical that it does not
undermine confidence in the
determination of the case.
However, court should be
6
decision on other grounds
if the reasons given are
inadequate, as the court
espoused in SEC v Chenery.
However, there is some
conflict with the reasons
requirement and the
harmless error principle.
Reviewing Agency
decisions
Hard look review: The
public was concerned with
agency capture and the
insufficiency of safeguards
presented by notice &
comment, and the court
responded by imposing
additional procedures on
the agency that were not
required by the statute.
However, the court
reversed this approach and
rejected the assumption
that more procedures
would produce a better
decision in Vermont
yankee.
Reviewing Agencies
Judicial ReviewSubstantial Evidence
Judicial Reviewsubstantial evidence
Ethyl Corp v EPA:
Judge Leventhal: hard look
approach means that the
court must examine closely
the decision of the agency and
must affirm if decision is
rational even if we would
have decided otherwise
Vermont Yankee
(1978)
Substantial Evidence
applies to formal
rulemaking and formal
adjudication. Thus, under
the APA, any time § 556 or
557 are applicable.
However, the organic
statute may also require
substantial evidence
application.
While substantial evidence
standard is applied to facts,
parties challenging agency
findings cannot simply reargue the facts. Rather,
effective challenges under
the substantial evidence
standard usually identify
particular gaps or flaws in
the agency explanations.
One potential flaw is when
very cautious. Should
probably only apply in an
exceptional circumstance
where the ALJ at least
considered the material but
just not properly and no
reasonable admin. Fact finder
could have resolved the
factual matter in any other
way
Judge Bazlelon: courts should
ensure that agency
procedures give a full airing
of the issues in order to
ensure good substantive
decisions. This is particularly
true because of technical
matters espoused.
Universal Camera
Corp. v NLRB
Center Construction
Co. v NLRB: finding
that the agency’s
decision was not
based on substantial
evidence because
witness testified in
front of the ALJ and
the findings turned
mostly on witness
credibility
Courts have no authority to
order procedures beyond
those required by statute or
due process.
Substantial evidence is more
than a mere scintilla and is
such evidence as a
reasonable mind might accept
as adequate to support a
conclusion.
Testimonial inference: based
on the witness’ demeanor
such as voice fluctuation, long
pauses, nervousness etc.
Derivative inference: based
on other aspects of witness
testimony, such as internal
inconsistencies in the
substance of the testimony.
(dissent in this case believes
7
an agency finds a fact that
is at odds with the ALJ and
it is based on a testimonial
inference
Judicial Review- Statutory
Interpretation
While the APA seems to
provide that courts should
apply de novo review of an
agency’s resolution of legal
questions such as the
meaning of the statute,
congress’ delegation of
authority to the agency and
the agency’s expertise in
the subject of the technical
statute weigh in favor of
deference.
Chevron v Natural
Res. Def. Council:
adopting a 2 step
process for review of
an agency’s statutory
construction . The
issue here was the
term “stationary
source” under the
CAA included
multiple individual
sources or the entire
plant.
Judicial Review- Statutory
Interpretation
While textualists would
stop statutory
interpretation at its plain
meaning, like Justice Scalia,
others would use
traditional tools of
statutory interpretation
such expressio tool and
legislative history.
Expressio tool interprets a
statute’s explicit direction
for something in one
provision and its absence
in a parallel provision as
implying congressional
intent to negate intent for x
in the second provision.
Legislative history, on the
other hand is useful
because if congress
expressly contemplated
something and then did not
include it in the statute, it
may be implied that
congress intended to reject
it.
Step 2 – At step two, the
court is extremely
Alliance for
Community Media v
FCC: Court rejected
the argument that
because congress
specifically include
deadlines in one
provisions that it did
not want a deadline
in another
provisiosn. Instead, it
meant to leave the
deadline up to the
agency. Moreover,
that congress
specifically
contemplated and did
not include
something in legis.
History means they
expressly reject it.
Judicial Review- Statutory
Interpretation
City of Chicago v
Environmental Def.
that the issue was not based
on testimonial inference but
rather derivative, i.e. shows
judges may differ on which it
is)
To determine whether
deference is due:
(1) Whether congress has
directly spoken to the
precise question at
issue. If the intent of
congress is clear, that
is the end of the
matter
(2) If the statute is silent
or ambiguous with
respect to the specific
issue, the question for
the court is whether
the agency’s answer
is based on a
permissible
construction of the
statute
Step 1 of chevron permits
rules of statutory
construction such as
reference to expressio tool
and legislative history
NOTE- this case leaves
unclear whether if an agency
8
deferential. The court will
only reverse the agency’s
interpretation if it goes
beyond the scope of
whatever ambiguity the
statute contained.
Judicial Review- Statutory
Interpretation
Judicial Review- Statutory
Interpretation
Agency interpretations
through informal rulings
may require chevron
analysis, or Skidmore,
which was the pre-chevron
test for deference to
statutory interpretation.
Statutory InterpretationWhat test applies?
Interpretations such as
those in opinion letters,
like policy statements,
manuals, enforcement
guidelines, all of which lack
the force of law, do not
warrant chevron deference.
Instead, skidmore is
applied.
Step Zero Test: Mead
proposes that chevron
deference is appropriate if:
(1) Congress delegated
authority to the agency
generally to make rules
carrying the force of law ,
(2) The agency’s
interpretations claiming
deference was
promulgated in the
exercise of that authority
Statutory InterpretationWhat test applies?
Fund: reversing the
agency interpretation
under step 2 because
it went beyond the
scope of ambiguity
interpretation within the
scope of ambiguity, may
nevertheless be unreasonable
NLRB v Hearst: NLRB
made an
interpretation of
“employees” in the
statute during an
adjudication. The
court reviewing said
that such issue is a
mixed question of
law and fact (if law
only= de novo)
Skidmore v Swift &
Co.: (less deferential,
agency opponents
want this)
For mixed question of law and
fact there is some deference
due to expert agency. The
court must inquire whether
agency’s application of the
statutory term in a particular
context has warrant in the
record and a reasonable basis
in law
Christensen v Harris
County: DOL
interpreted a statute
in an opinion letter.
United States v Mead
Corp.: where the
customs office issued
a ruling letter which
provides guidance on
the interptation or
application of
customs laws.
The weight of the agency’s
judgment in a particular case
will depend upon
(1) The thoroughness evident
in its consideration
(2) The validity of its
reasoning
(3) The consistency with
earlier and later
pronouncements
(4) All those factors which
give it power to persuade,
if lacking power to
control
Scalia concurrence: Chevron
applies not only to agency
regulations but to
authoritative agency positions
set forth in a variety of other
formats.
Justice Breyer dissent:
chevron should apply
Justice scalia dissent: very
disappointed/upset that court
is basically displacing chevron
9
Statutory InterpretationWhat test applies?
Statutory InterpretationWhat test applies?
Maybe, New Step Zero Test:
(1) The interstitial
nature of the legal
question
(2) The related
expertise of the
agency
(3) The importance of
the question to
administration of
the statute
(4) The complexity of
that administration
(5) The careful
consideration the
Agency has given
the question over a
long period of time
MAYBE new step zero testdicta b/c notice & comment
. The main issue is whether
congress would have
intended, and expected,
courts to treat an agency’s
rule, regulation, application
of a statute, or other agency
action as within or outside
its delegation to the agency
of gap filling authority. The
court will assume congress
meant to defer if:
(1) Where an agency
rule sets forth
important
individual rights
and duties
(2) Where the agency
focuses fully and
directly upon the
issue
(3) Where the agency
uses full notice and
comment
procedures to
promulgate a rule
(4) Where the
resulting rule falls
within the
statutory grant of
authority
(5) Where the rule
itself is reasonable
Barnhart v Whalton:
interpreting inability
to require the
inability to last for 12
months and
established the
interpretation in
formal regulations
.Justice Scalia dissent: thinks
it is irrelevant how
“longstanding” the agency’s
interpretation is. Chevron
represents the view that there
are many correct
interpretations and the
agency is free to move from
one to another
Long Island Care
10
Statutory InterpretationWhat test applies?
Revenue rulings do not
require chevron deference
under the Mead test, thus
Skidmore is appropriate.
Statutory Interpretationde NOVO
Formal adjudications (not
APA)- Chevron does not
apply. Instead, the
interpretation is a pure
question of statutory
construction for the courts
to decide – pure questions
of law then imply
application of Hearst. (de
novo)
§ 706(2) of the APA directs
reviewing courts to hold
unlawful and set aside
agency action, findings, and
conclusions found to be
arbitrary, capricious, an
abuse of discretion, or
otherwise not in
accordance with law.
Judicial Review- Arbitrary
& capricious
Judicial Review- Arbitrary
& capricious
The Agency decision is
arbitrary & capricious if
(1) it has relied on
factors which
congress has not
intended it to
consider
(2) Agency entirely
failed to consider
an important
aspect of the
problem
(3) The agency offered
an explanation of
its decision that
runs counter to the
evidence before the
agency
Aeroquip Vickers v
commissioner of
Internal Revenue (6th
cir): when
promulgating
revenue rulings, the
IRS does not invoke
its authority to make
rules with the force
of law
INS v Cardozo
Fonesca:
Overton Park
State Farm (1983after Baltimore)
Justice Stevens: argued for the
application of Cardozofonesca to rulemaking too,
thus overriding chevron.
Arbitrary & Capricious review
requires the reviewing court
to consider whether the
decision was based on a
consideration of the relevant
factors and whether there has
been a clear error of
judgment. The inquiry into
these facts is to be searching
and careful.
(NOTE- agency opponent
wants to start with this, then
move on to state farm, not
very deferential)
NOTE- agency opponent
should identify ways agency
has done one of these factors
Agency advocate should argue
agency has not done any of
these
11
Judicial Review- Arbitrary
& capricious
Judicial Review- Arbitrary
& capricious
(4) The agency
decision is so
implausible that it
could not be
ascribed to a
difference in view
or the product of
agency expertise
Reviewing courts should
remember that agency’s
are acting within an area of
expertise. The courts only
task is to determine
whether the commission
has considered the relevant
factors and articulated a
rational connection
between the facts found
and the choice made.
An agency decision that is
not supported by an
explanation will be
considered arbitrary &
capricious. The explanation
need not be absolutely
certain, nor is precision
required. Only a reasonable
explanation to support
decisions/determinations.
Judicial Review- Arbitrary
& capricious
Rulemaking
Rulemaking authority must
be delegated to the
agencies by Congress
because agencies have no
inherent authority to
promulgate rules.
Historically, courts
required the authority to
come from substantive
provisions rather than a
general grant of
rulemaking authority.
(Massachusettes v EPA).
Baltimore Gas &
Electric (1983):
deferring to the
commission, the
court stressed that
the issue was one on
the frontiers of sciene
and a reviewing court
should be at its most
deferential when
reviewing scientific
determinations
Bluewater Network v
EPA: remanding to
the EPOA to clarify its
statutory and
evindentiary basis of
the assumptions and
analysis and evidence
underlying the
decisions
New England Health
Care Employees v
NLRB: Agency’s
decision was
arbitrary &
capricious because
failed to consider
another option (state
farm factors).
National Petroleum
Refiners: construing
general grants of
rulemaking authority
as confined to
establishing
procedures for
implementing
adjudication or other
agency
responsibilities.
NOTE- some courts will view
inferences that agency’s make
as factual- and thus subject to
substantial evidence, but
here, the court views it as part
of its reasoning- so it is part of
arbitrary & capricious
See also Dupont
12
Under current law, there is
little doubt, however, that a
general grant of authority
to implement statutory
provisions by regulation
includes authority to make
substantive rules, unless
the peculiar circumstances
of a given provision suggest
otherwise.
Implied authority-
Rulemaking- APA
constraints- retroactivity
APA limits rulemaking
authority by 2 means.
First, the rule must fit into
the APA’s definition of a
rule. The definition is
exceedingly broad,
however, a common
difficulty raised is the
retroactive effect of a rule
as conflicting with the
APA’s definition of a rule as
have a future effect. Thus,
a rule may only be
retroactive if the organic
statute grants express
retroactive rulemaking
authority.
Rulemaking-APAconstraints-retroactivity
v adjudication
Second, the APA allows the
decision to proceed by
rules to be challenged as
arbitrary & capricious
under § 706(2)(A). Given
that the decision to
proceed by rule is a
discretionary matter and
there are obvious policy
reasons to pursue a rule,
such as efficiency and
clarity, it is a difficult
challenge to prove
successfully that the choice
was arbitrary & capricious.
interpreting even a
more particularized
delegation of
rtulemakin authority
broadly as to uphold
the agency
rulemaking authority
Morton v Ruiz:
recognizing the
practical need to
make rules to fill any
gap left, implicitly or
explicitly, by
congress. (see
chevron)
Bowen v Georgetown
Univ Hospital
A general grant of rulemaking
authority does not include the
authority to promulgate rules
with retroactive application.
American Hospital v
LRB: rejecting the
challenge to NLRB
rulemaking because
adjudication better
suited to
individualized
consideration.
See also Bowen: Scalia
said that perhaps a
circumstance where
a regulation has
secondary
retroactive effects as
to upset reliance
13
Rulemaking- Rulemaking
petitions
Rulemaking- Rulemaking
Petition – Reviewability
§ 553(e) of the APA
requires an agency to give
an interested person the
right to petition for the
issuance, amendment, or
repeal of a rule.
Denial of a petition is
considered final agency
action for purposes of
reviewability. However, if
the agency merely refuses
to answer the petition,
there is no final agency
action. The D.C Circuit
court in
Telecommunications
Research and Action Ctr
fashioned an exception to
the finality requirement for
unreasonably delays in
agency response to a
petition
interests, then the
rule may be arbitrary
& capricious.
Massachusetts v EPA:
Mass. Brought an
action against the
EPA for not
promulgating rules
addressing climate
change. EPA argued
that it did not have
authority to do so,
and even if it did, it
was not the right
time t address it. EPA
didn’t explain
sufficiently why it
didin’t promulgate
the rule, thus
decision not to is
arbitrary &
capricious
Telecommunications
Research & Action
Center v FCC
When a rulemaking petition is
filed, the agency must offer
reasoned explanation for its
refusal to grant the petition.
Scalia, Thomas & Alito
dissent: The EPA did give
adequate reasons why they
didn’t want to make the rule,
and dissenters have no idea
what else the court can
possibly expect.
**SEE ALSO- Scalia thought
should have deferred to EPA’s
interpretation of air pollutant,
even though the EPA did not
exercise its authority to adopt
rules (so skidmore should
apply)
Whether review is available
(1) Time agencies take to
make decisions must be
governed by a rule of
reason
(2) Where congress has
provided a timetable or
other indication of the
speed with which it
expects the agency to
proceed in the enabling
statute, that statutory
scheme may supply
content for this rule of
reason
(3) Delays that might be
reasonable in the sphere
of economic regulation
are less tolerable when
human health and welfare
are at stake
(4) The court should consider
the effect of expediting
delayed action on agency
activities of a higher or
completing priority
(5) The court should also
take into account the
nature and extent of the
14
interests prejudiced by
delay
(6) The court need not find
any impropriety lurking
behind agency lassitude
in order to hold that
agency action is
unreasonably delayed
Rulemaking- Notice &
Comment RulemakingRequirements
Notice & Comment
§ 553(b) of the APA
provides several
requirements for notice &
comment rulemaking, if
such rulemaking is
triggered by the organic
statute. The agency must
provide general notice of
the proposed rulemaking
shall be published in the
federal register, unless for
some reason the
individuals have actual
notice because they were
personally served. The
notice must include (1) a
statement of the time,
place, and nature of a
public rulemaking
proceedings (2) reference
to the legal authority under
which the rule is proposed;
and (3) wither the terms or
substance of the proposed
rule or a description of the
subjects and issues
involved. Finally, once
notice is given, (c) the
agency shall give interested
persons an opportunity to
participate in the
rulemaking through
submission of written data,
views, or arguments with
or without opportunity for
oral presentation. After
consideration of the
relevant matter presented,
the agency shall
incorporate in the rules
adopted a concise general
statement of their basis and
purpose.
§ 553 does not apply to
Duquesne Light
Certain rulemaking
15
Rulemaking- Exceptions
non-legislative rules, such
as (b) (A) interpretive
rules, general statements of
policy, or rules of agency
organization, procedure, or
practice; or (B) when the
agency for good cause finds
(and incorporates the
finding and a brief
statement of reasons
therefore in the rules
issued) that notice and
public procedure thereon
are impracticable,
unnecessary, or contrary to
public interest
Rulemaking- Notice
§ 556(b) notice must be
sufficient to fairly apprise
interested persons f the
issues involved so that they
may represent responsive
data or arguments. This
includes providing
sufficient detail and
rationale for the rule to
permit interested parties to
comment. Thus, if
information relied on by
the agency is not provided
to the public, this violates
“notice”.
Rulemaking- NoticeAdditional Information
However, an agency may
use supplementary data,
unavailable during the
notice and comment
period,t hat expands on
and confirms information
contained the proposed
rulemaking and addresses
Company v EPA:
where public
hearings were
afforded at a state
level, the court was
willing to conclude
that such procedures
at a federal level
would be
unnecessary, thus
there was a good
cause exception to
these procedures.
But see
Environmental Def.
Fund Inc. v EPA:
denying the EPA’s
invocation of the
exception on the
basis that it had a
looming deadline.
Small Refiner Lead
phase Down Task
Force v EPA
Ober v. EPA: finding
that the reliance on
additional
information was
inappropriate.
requirements may be
exempted under the good
cause exception if they are
unnecessary and impractical.
For instance, if there is a state
hearing and the testimony
would be duplicative and the
statute doesn’t specifically
require a federal hearing,
then this may reflect
congressional intent to not
require one. However, this is
limited due process. If the
effect looks more like an
adjudication, then even if the
action is couched as a rule,
due process may require a
hearing. (argument will
usually fail, See South
Terminal Corp. v EPA)
The good cause exception is
narrowly construed and only
reluntantly countenanced.
The justifications for the
exception are not excape
clauses to be used on a whim.
Instead, the exception should
be limited to emergencies.
There are 3 primary purposes
of the notice requirement.
(1) Improves quality of
agency rulemaking by
ensuring that agency
regulations will be tested
by exposure to diverse
public comment
(2) Notice & opportunity to
be heard are essential to
fairness of the affected
parties
(3) The information enhances
the quality of judicial
review by providing
documents of objections
When information is solicited
by third parties, as opposed to
involving an internal
assessment, this weighs in
favor of adding the
information. Moreover, if the
additional information is
critical or relied on by the
16
Rulemaking- opportunity
to comment
Rulemaking- Statement
of basis and purpose
Rulemaking- A different
rule than the one
proposed
alleged deficiencies in the
pre-existing data, so long as
no prejudice is shown.
(Solite Corp. v. EPA).
However, if the information
relied upon is prejudicial,
then the agency must
extend the comment period
and add the information to
the record.
§ 553© of the APA requires
that agency allow
submission of written
comments, but allows the
decision of whether to
allow oral presentations at
a hearing to agency
discretion. The Court has
interpreted this as
requiring that the agency
respond to public
comments that are
significant, in the basis and
purpose tha accompanies
the final rule
§ 553© of the APA requires
that agencies incorporation
in the rules adopted a
concise and general
statement of their basis and
purpose. This statement
demonstrates whether the
agency considered and
responded to comments
received. The statement
must be sufficient to enable
a reviewing court to see
what major issues of policy
were ventilated by the
proceedings and why the
agency reacted to them as
it did.
The general rule is that an
agency must provide a new
notice and opportunity for
comment if the rule is not a
logical outgrowth of the
agency, this weighs in favor of
adding the information.
Northeast Maryland
Waste Disposal
Authority v EPA:
Industry petitioners
challenged an EPA
rule for failing to
articulate a rationale
for its decision.
Court found that the
EPA did not explain
its decision at all, and
was not one word
mentioned about
comments made by a
variety of individuals
(NOTE ABOUT
JUDICIAL REVIEWsome statutes will
require the person to
raise the issue in the
commenting period
to get judicial review)
Chocholate Mfrs.
Assn v Block
If a statement does not
expressly incorporate
anything or refer to
interpreted parties or the
courts to a specific document
containgin the agency
rationale, then the agency
decision will not satisfy
fundamental requirements.
However, the court has two
options. The court can either
vacate the rule and require
the agency to start the
process again, or the court
can remand to the agency to
do provide a reasoned
statement, but not vacate the
rule. For example, if it seems
as though the agency can
explain the rule. Moreover,
vacating the rule would be
exceedingly disruptive.
The test of whether new
notice is required is whether
the notice that was provided
was sufficiently descriptive to
provide interested parties
17
Rulemaking- notice &
comment Ex parte comm..
Rulemaking & NEPA
proposed rule, so that a
party was not on notice
that its interests were
affected. However, if the
rule is not substantially
different, then it would be
absurd to require an
agency, who is supposed to
rely on comments, to
change a rule if it does
learn something from the
comments.
While ex parte
communications are
prohibited under formal
rulemaking and
adjudications, they are not
prohibited in notice and
comment rulemaking. Still,
courts have demonstrated
concern that ex part
communications may
undermine the fairness of
the process, prevent the
testing of information
through public comment,
and prevent effective
judicial review. One well
established rule that was
the product of a D.C. Circuit
case, Sangamon Valley v.
United States, prohibits ex
parte communications
where the rulemaking
involves resolution of
conflicting private claims to
a valuable privilege.
Under the National
Environmental Policy Act,
every agency is required to
prepare an environmental
impact statement to
accompany major actions
with significant
environmental effects. This
statement forces agencies
to consider the potential
adverse environmental
consequences of their
actions.
with a fair opportunity to
comment and to participate in
the rulemaking. Thus, so long
as the rule fairly apprises the
public of the subjects and
issues, then it satisfies the
APA.
Sierra Club v Costle:
industry groups
sought to emit sulfur
dioxide @ a higher
level while env.
Groups wanted to be
free from emissions
at those levels.
Calvert Cliffs
Coordinating Comm.
V United States
Atomic Energy
Comm’n (p. 408)
Where agency action
resembles judicial action,
where it involves formal
rulemaking, adjudication, or
quasi adjudication among
conflicting private claims to a
valuable privilege, the
insulation of the decision
maker from ex parte contacts
is justified by basic notions of
due process to the parties
involved. Some oral
communication must be
summarized in the record to
preserve the integrity of the
rulemaking docket.
(NOTE- this is a hybrid
statute, thus question of
whether it applies to agencyAgency advocate: this has no
bearing whatsoever, only to
the clear air act
Contra-agency: these are the
basic requirements- court
referenced integrity of notice)
NEPA has no substantive
force, instead, it is only
procedural requirements to
ensure that the agency in
reaching is decisions, will
have available, and will
carefully consider , detailed
information considering
environmental impact.
Rulemaking & Executive
Orders
18
Formal Rulemaking
§ 553© of the APA requires
the agency to follow §§
556-57 if the organic
statute requires the rule to
be made on the record after
an opportunity for a
hearing. These procedures
are relatively rare because
they are very cumbersome.
The agency must convene
an oral hearing at which
interested persons have the
right to testify and cross
examine witnesses.
Moreover, matters must be
based solely on information
on the record, thus
agencies are precluded
from engaging in ex parte
communications. Finally, it
must issue findings of fact
and conclusions of law to
support its decsions.
Moreover, § 557(d)(1)
prohibits ex parte
communications.
United States v
Florida East Coast Ry.
Co: (p 331): where
the organic statute
required a rule be
made “after a
hearing”; the court
did not find that it
triggered formal
rulemaking.
For formal rulemaking to be
triggered, the organic statute
must call for a rule to be made
“on the record after an
opportunity for a hearing.”
Adjudication- policy
making
Adjudication to make
policy may be preferred
over rulemaking because of
its flexibility, immediacy,
political insulation, and
obtaining oral testimony.
However, the party that is
subject to adjudication may
be placed at a disadvantage
by being singled out for
imposition of a new policy,
of which it had no prior
notice. Moreover, those
parties not being singled
out may object as well
because of their lack to
participate. These concerns
are especially true given
the agency incentive to
choose a small and poorly
finance defendant in its
first adjudication to
minimize obstacles. Of
NLRB v APW Prod
CO.( 433):
An adjudication does not
become a rulemaking simply
because the decision adopts a
broad rule that will apply in
future cases. As long as the
agency makes law like a court
would, instead of how a
legislature would, it is subject
to the procedures for
adjudication, not rulemaking.
19
course, the agency must
have the authority to
adjudicate in the organic
statute. Moreover, the APA
constrins the agency’s
ability to adjudicate in 3
ways. Firs, the adjudication
is not appropriate if it fits
the APA definition of a rule.
Second, an agency’s
decision to adopt policy
through adjudication
instead of rulemaking may
be challenged as arbitrary
and capricious under §
706(2)(A).
An agency’s decision to
proceed by adjudication
will more likely be found to
be arbitrary & capricious if
it violates fundamental
notions of fairness,
retroactivity and due
process.
Retroactivity is allowed if
the resulting advancement
of the statutory design
outweighs the unfairness
stemming from
retroactivity. (SEC v
Chenery)
(NOTE- this is for when the
action of the party occurred
prior to the decision of the
case rule the agency is
trying to establish)
NLRB v Guy Atkinson
Co.: The agency had
continuously taken
the view that it did
not have juridiction
over the particular
industry involved,
but then suddenly in
this case, it said it did
have jurisdiction
Retail, Wholesale &
Dept. Store v NLRB:
declining t apply the
new case to the
parties previous
actions. He had
conformed
immediately when
the new rule was
announced, and had
consistently
discussed with his
counsel to make sure
in compliance with
the law.
Where the practical effect of
the agency’s order that
changes policy is to cause
hardship to an individual, it is
inappropriate it is not in
proportion with the public
ends to be accomplished.
Whether the retroactive law
is unfair under the chenery
balancing test is an issue of
law for the courts with no
deference to agency decsion.
Among the considerations are
(1) Whether the particular
case is one of first
impression
(2) Whether the new rule
represents an abrupt
departure from well
established practice of
merely attempts to fill a
void in an unsettled area
of law
(3) The extent to which the
party against whom the
new rule is applied relied
on the former rule
(4) The degree of the burden
which a retroactive order
imposes on a party
(5) The statutory interest in
applying a new rule
despite the reliance of the
20
United Food &
Commercial Workers
v NLRB: the boards
new rule merely
clarifies an older rule.
Fundamental fairness
requires that similarly
situated people be afforded
similar treatment.
An Agency has discretion to
use adjudication to make a
future effect
party on the old standard.
The court has consistently
been willing to approve
retroactive application of
rulings that do not represent
an abrupt break with well
settled policy but merely
attempt to fill a void in an
unsettled law
Yick wo v Hopkins (p
447)
NLRB v Wyman
Gordon: In excelsior,
the board announced
that it would require
employers to furnish
a lit to the board
upon request, but did
not apply it to the
excelsior parties and
instead said it would
apply it in the future.
Plurality- The parties are
required to comply with the
agency’s order because it was
ordered in the present case.
Black, Brennan & Marshall
concur: A requirement may
still be prospectively applied,
even if not applied in that
particular case, so long as all
the requirements of
adjudication are satisfied.
Douglas dissent: An agency is
not adjudicating when it is
making a rule to fit future
cases
NLRB v Bell
Aerospace Co. Division
of Textron, Inc:
APA Adjudication-
Harlan dissent: Announcing a
rule and not applying it in the
present case is not APA
adjudication.
Agencies are not precluded
from announcing new
principles in an adjudicative
proceeding and the choice
between rulemaking and
adjudication lies in the first
instance within the agency’s
discretion.
APA Adjudication is
triggered by the organic
statutes reference to
adjudication to be
determined “on the record
after opportunity for an
agency hearing.”(or similar
language- not as rigid as
formal rulemaking
21
Adjudication- Triggering
APA
Informal, non-APA
Adjudication
triggers) § 554 has several
requirements, however the
organic statute may
supplement the APA
requirements. Agencies
must provide personal
notice of any hearing to the
affected parties including
the time, place, nature of
the hearing, and the
matters of fact and law
asserted. The agency must
also allow the parties to
submit consideration of
facts, arguments, offers of
settlement, proposals,
when time, the nature of the
proceeding, and the public
interest permit.
Formal adjudication is
much more common
because more organic
statutes incorporate the
necessary trigger language
than for rulemaking.
However, more recently
the trend has been away
from requiring formal
adjudication in cases in
which the organic statute
does not explicitly trigger
it. Under City of West
Chicago v US Nuclear
Regulatory Common (514),
the statute is not expressly
required to say “on the
record,” but if the organic
statute does not, then
congress must clearly
indicate its intent to trigger
the formal hearing
provisions of the APA.
The APA says very little
about informal
adjudications, thus they are
largely derived from other
sources of law. First, the
organic statute may specify
procedures that different
from those in the APA>
Second, agencies may
adopt their own
Chemical Waste
Management Inc. v
EPA
Courts will apply the chevron
test to an agency’s
interpretation of whether the
adjudication requires a
hearing on the record.
22
Informal Adjudication
Requirements
Formal Adjudication & ex
parte communication
procedures by regulations
and bound to adhere to
those procedures until they
change them by amending
or repealing them. Third,
the due process clause may
impose minimum
procedural requirements
when agency adjudication
derive affected parties of
protected property or
liberty interest.
555(e) requires prompt
notice of denial in whole or
in part of a written
application, petition, or
other request, which mut
be accompanied by a brief
statement of the grounds
for denial. Thus, only after
the fact notice of a decision
is required in an informal
adjudication, implying that
prior notice is not required.
This, however, is
constrained by due
process.
The agency has the power
to issue a subpoena
authorized by law,
pursuant to APA §
556©(2). The right to a
subpeana, however, is not
absolute.
Ex parte communications
are oral or written
communication not on the
public record with respect
to which reasonable orior
notice to all parties is not
given, but it shall not
include requests for status
reports on any matter or
proceeding. These types of
communications are
expressly prohibited in
formal adjudications,
pursuant to § 554(d). An
Drukker
Communications v
NLRB- if particularly
adversarial and
sanctions are
involved, likely that
they will allow
subpoeana, if non
adversarial as in SSA,
prob will go against
it.
PATCO:
Similar to a court of law, a
subpoeana may be denied if
its production would harm
the pblic interest.
An interested party, for
purposes of § 557 is someone
whose interest is greter than
the general public
23
Rules & effect on
Adjudication
Non-legislative rules &
Adjudication
employee making the
recommended decision or
initial decisions may not
(1) consult a person or
party on a fact in issue,
unless on notice and
opportunity for all parties
to participate or (2) be
responsible to or subject to
the supervision or
direction of an employee or
agent engaged in the
performance of
investigative or
prosecuting functions of an
agency. Moreover, § 557
places added restrictions
on ex parte
communications . However,
if ex parte communications
do occur, they must be
placed in the public record
and § 551(d)(1)(D)
authorizes the presiding
officer to dismiss or deny
the claim or interest of any
person who makes an ex
parte communication.
When an agency uses a
regulation to resolve an
issue, it prevents the
affected parties from
litigating the issue in an
agency adjudication.
However, this approach
may be inappropriate in
circumstances in which the
issues require
individualized decision. In
order to address this
concern, agencies typically
include a “safety valve” in
its regulations allowing a
waiver when particular
factual circumstances
warrant it.
Sykes v Apfel:
Where a party’s
facts/circumstances do not
match the regulation, the
agency may not rely on the
regulation. Moreover, while
ALJ’s are allowed to take
notice of commonly
acknowledged facts, it may
only be technical or scientific
facts that are within the
agency’s expertise. If an ALJ is
so qualified to take notice, he
must give the party notice
that he plans to do so,
Allen v Barnhardt:
Agency wanted to
rely on SSR, which is
an interpretive rule
non-legislative
Where an agency wants to
rely on a non-legislative rule,
it must be crystal clear that
the ruling is probative as to
the issue. Moreover, when an
agency is going to rely on a
24
non-legislative rule, advanced
notice should be given.
Adjudication & Due
process
The Due Process clause of
the Fifth & Fourteenth
Amendment bar the federal
government from depriving
any person of life, liberty,
or property, without due
process of law.” Thus, at a
minimum, due process
requires notice and
opportunity to be heard by
an unbiased
decisionmaker. First, the
court must determine
whether the agency has
made the kind of decision
that triggers procedural
due process safeguards. If it
is a classic rulemaking,
then no problem, unless
should have proceeded by
an adjudication (longer v
bimetallic). Second,
whether the person
alleging that his or her due
process rights have been
violated has an interest
that is protected by the due
process clause.
(entitlement). Finally, was
the process afforded by the
government sufficient to
provide the full and fair
opportunity to protect that
interest?
(Step 2 ) Due process
protects property and
liberty. Although the
traditional approach was to
distinguish a right vs a
privilege, the court has
expanded its notion of
property. A person must
clearly have more than an
abstract need or desire for
the benefit, thus, he must
have more than a unilateral
expectation of it.
(Step 3). Whether the
process afforded by the
government was sufficient
Goldberg:
recognizing financial
aid as an entitlement.
Legislature can specifically
preclude application of due
process by declining to create
an entitlement to a
government benefit.
Mathews v Elridge
(1) The private interest that
will be affected by the
official action
25
to provide full and fair
opportunity to protect the
interest requires a 3 factor
test. The effect of the test is
that where the importance
of the interest times the
increased accuracy is
greater than the cost of
additional procedures, due
process requires additional
procedures. Otheriwse, due
process does not require
the additional procedures
Informal Agency ActionInformal Adjudication
Informal Agency ActionNon-legislative Rules
§ 555(e) is the only
informal agency
adjudication requirement
under the APA, which is to
provide prompt notice
§ 553(a)(A) exempts nonlegislative rules from notice
& comment procedures.
These rules are
a.
Potential
deprivation @
issue- reliance on
benefit- delay
between postdepriv hearing
and cut-off
b. Most imp. 2 least
imp.: personal
liberty, parental
rights, welfare
benefits, basic
utilities, disability
insurance
benefits,
employment
(2) The risk of an erroneous
deprivation of such
interest through the
procedures used, and the
probably value, if any, of
additional or substitute
procedural safeguards
a. Reliability &
fairness of
current
procedure
b. If add’l
procedures
doesn’t increase
accuracy= not
required
(3) The governments interest
including the function
involved, the fiscal and
administrative burden
that the additional or
substitute procedural
requirement would entail
a. Cost alone not
sufficient- but
policy like
efficiency, etc.
Overton Park: the
decision to build the
highway was an
“order”.
America Hosp. Assn v
Bowen
Courts distinguishment is not
clear. Instead, the court itself
as viewed the various
approaches as fuzzy, tenuous,
26
Information Agency
Action- Non-legislative
Rules- Interpretive rules
interpretative rules,
general statements of
policy, or rules of agency
organization, procedure or
practice. The rationale for
dispending with an
opportunity to comment is
that these kinds of rules do
not affect the public in
ways that make it
necessary to provide a
right of public participation
in their adoption. These
rules are still required to
be published in the federal
register, pursuant to § 552
and an unpublished rule
cannot be enforced against
a party unless they had
actual notice. Although an
agency’s characterization
of a non-legislative rule is
relevant, it is not
determinant. Rather,
courts have developed a
variety of tests to
distinguish a nonlegislative, from a
legislative rule.
Interpretive rules are a
statement issued by an
agency to advise the public
of the agency’s
construction of the statutes
and rules which it
administers. These rules
are attractive to agencies
because although the rule
itself is not binding, the
underlying statute it is
interpreting is binding.
blurred, and baffling
Miller v California (p
744)
An interpretive rule merely
explains, but does not add to
the substantive law that
already exists in the form of a
statute or legislative rule,
whereas legislative rules
impose obligations. (thussimply “remind/explain”
Ballesteros v
Ashcroft (id)
An interpretive rule must be
derivable from the statute
that it implements by a
process fairly to be describes
as interpretive. Thus if the
agency is using statutory
construction tools, the rule is
likely to be regarded as
interpretive. If on the other
hand, the reasoning is policy
based, then the rule is likely a
27
American Mining
Cong. V Mine Safety
(id)
Informal Agency ActionNonlegislative rulesPolicy statement
When a rule is
interpretative rather than
legislative, it is invalid for
not using notice and
comment procedures.
American Medical
Association v US
A policy statement is issued
by an agency to advise the
public prospectively of the
manner in which the
agency proposes to
exercise a discretionary
power. It does not purpose
to be an existing duty,
rather just an
announcement to adopt a
new duty in the future
adjudication/rulemaking.
Courts usually focus on
whether the rule is binding
on the parties or the agency
Cement Kiln
Recycling Coal v EA
(DC Cir)
legislative one.
If the answer to any of the
following questions is yes,
then it is a legislative rule
(1) Whether in the
absence of the rule at
issue there would not
be an adequate
legislative basis for
enforcement action or
other agency action to
confer benefits or
ensure the
performance of duties
(2) Whether the agency
has published the rule
in the Code of Federal
Regulation
(3) Whether the agency
has explicitly invoked
its general legislative
authority (Part of
mead test)
(4) Whether the rule
effectively amends a
prior legislative rule
In order to determine
whether a rule is legislative or
interpretive, one must look
beyond the source of power
to promulgate the rule.
Instead, the court must look
@ whether the language is
clarifying the underlying
statutory language or if
itsimposing additional duties.
Court must examine whether
the agency action binds
private parties or the agency
itself with the force of law.
Thus, if the action either
appears on its face to be
binding, r is applied by the
agency in a way that indivates
it is binding, it may be
binding!
(See also- listing/delisting
endangered species= rules
not statement)
28
Informal Agency ActionNonlegislative RulesRules of Agency practice
& procdure
to determine whether it is
exempt from notice and
comment procedures.
To ensure that agencies
retain latitude in
organizing their internal
operations, § 553 of the
APA exempts rules of
agency practice and
procedure from notice &
comment procedures.
Unlike police statements
and interpretative rules,
however, these rules may
have binding effects,
particularly when they
provide procedural
benefits for affected
parties.
Batterton v Marshall
Procedural rules cover agency
actions that do not
themselves alter the rights or
interests of parties, although
it may alter the manner in
which parties present
themselves or their
viewpoints to the agency.
Thus, if a rule has a
substantial impact on the
conduct outside the
proceeding itself, it is not
non-legislative
American Hosp. Ass’n
v Bowen (DC CIR)
Value judgment test: Even
unambiguously procedural
measures affect parties to
some degree. Thus, the court’s
approach is shifted from
asking wehether there is a
substantial impact to whether
the agency action also
encodes a substantive value
judgment or puts a stamp of
approval or disapproval on a
given type of behavior
Rules that embody a
judgement about what
mechanics and processes are
most efficient are procedural.
Thus, exemptions
demonstrate instances were
interests promoted by public
participation in rulemaking
are outweighed by
countervailing considerations
of effectiveness, efficiency,
expedition and reduction in
expense
Whether the rule alters
existing standards, or places
additional burdens. If it does
not determine substantive
rights, but rather outline a
plan, t is procedural
The rule is binding if
(1) the rule prescribed
But see JEM
broadcasting (DC
CIR) overruling the
value judgment test :
denied JEMS
argument that FCC’s
rule to deny any
application with
missing information
without opportunity
to cure a effect.
Chao v Rothermel (3d
cir. P 747)
Estate of Shapiro v
Commissioner of
29
Internal Revenue
Service
commissioner invited
reliance on a
procedural rule.
However, not abuse
of discretion in
prohibiting to file.
Informal Agency ActionEstopping Agencies
Estoppel is an equitable
doctrine based on one
party’s adverse reliance on
the misrepresentation of
another. Estopping
agencies, however, raises
issues of soverign
immunity and separation of
powers, given that the
judiciary is essentially
infringing on legislative
exclusive power to write
the law. Neverthelss, a
party may estop an agency
in an extreme
circumstance. There are
three essential elements a
party must prove. First, the
party must show that the
agency misrepresented
itself. This must rise to the
level of affirmative
misconduct. Second, the
party must show that
reliance is reasonable. If
the guidance or advice is
inconsistent with the
statute or regulation, the
party cannot establish
reasonability. A party’s
reliance is more likely to be
reasonable if (1) the
government agents had
authority to engage in the
substantive rules- not
interpretive
(2) the agency promulgated
the rules pursuant to a
statutory grant of
authority and in
conformance with the
procedural requirements
imposed by congress
a. even if the rule is
procedural and
doesn’t require
authority, the rule
maker may have
abused his
discretion and
invited reliance
on it.
Fredericks v CIR:
where told taxpayer
that didn’t have the
form to extend
statute of limitations,
then they found it
and didn’t tell him
and he thought they
no longer had
authority to look in.
Additionally, a new
interest rate would
have applied
30
Informal Agency ActionReliance /Due process
Informal Agency ActionConsistency –Equal
Protection
acts or omissions @ issue.
If the agent did not have
authority, even if the party
believed he did, reliance
cannot be established. (2)
The agent’s reliance is
more reasonable if the
misrepresentation is one of
fact and not law (Can
always advise counsel on
law). (3) If the government
beenfited from its
misrepresentation. This is
more an issue of fairness.
Finally, the party must
show that he suffered a
detriment. The detriment
must be in comparison to
the party’s underlying legal
obligation i.e. whether
worse off from before. Even
if a party manages to prove
the elements, there is a per
se bar against estoppel if its
consequences would be to
require monetary
payments to a party that
are not authorized by
statute, as it would violate
the appropriations clause.
Reliance on non-legislative
rules are generally not
considered reaosonable
because they are not
binding. However, a party
can potentially argue that
failure to provide notice
violates the party’s due
process requiements. While
this is not the best
argument, it has succeeded
before.
A party has two possible
arguments
(1) Change in position
violates equal
protection if
similarly situated
people were
treated more fairly
under agency’s
previous position
PEEKO: an
individual’s reliance
on an agency position
which the agency
later disavowed
violated party’s due
process. This is a
criminal case,
however, so unclear
whether it would be
extended to civil.
When the government tries to
repudiate reliance it has
provided, it may deprive a
person of notice of what the
law is, thus violating due
process requirements.
31
(bad arg.- rational
basis review)
(2) Resulting
inconsistency
amounts to
arbitrary &
capricious
rulemaking. This
will turn on
whether the agency
provides adequate
reasons for
changing its
position
Informal Agency ActionEntrenchment
Avaiability of Judicial
Review- Preclusion
In some cases, an agency
interpretation of a
legislative regulation
becomes so entrenched
over times as parties rely
on it, that the
interpretation has
essentially become part of
the rule itself.
Alaska American
Hunters (DC CIR)
In these cases, if the agency
wants to change its position,
it has to do so the way it
would normally adopt a
legislative rule, i.e. notice &
comment rulemaking.
(criticism: lacks the force of
law by definition so people
know cannot rely on it, kind
of ridiculous to require an
amendment of a rule that
doesn’t amend what your
actually amending, because
its not even in the rule!)
Judicial review under the
APA is generally available,
however, two provisions
provide for exceptions of
judicial review. APA
judicial review provisions
do not apply, pursuant to §
701(1), where the statute
precludes judicial review,
or (2) where agency action
is committed to agency
discretion by law. There is
a general presumption that
review is available. This is
because the constitution
vests the entire judicial
process in the courts of the
US and because a particular
preclusion provision may
violate an individuals due
process. Moreover, the
introductory language of
32
the APA, § 702, and § 704
all weigh heavily in favor of
a finding that here is
judicial review. Courts vary
on how to properly rebut
the presumption that the
statute intends to allow
review. Regardless of the
test, the party must point to
congressional intent by
drawing on the language,
structure, history,
purposes, etc.
Abbot Labs v Gardner
Block v Community
Even if judicial review is
expressly available under
the statute, a court may
find that the delegation to
the agency’s discretion is so
broad, that it precludes
review. Historically, courts
have interpreted this very
narrowly, as evidenced in
Overton Park. Moreover,
just because something the
agency has discretion, does
not mean it will meet this
exception, otherwise, it
would make moot the point
of setting aside agency
action for being an abuse of
discretion! Issues that are
traditionally committed to
agency discretion for
purposes of the exception,
are (1) an agency’s decision
to not enforce/prosecution
NLRB v United Food:
decision not to
prosecute after a
settlement was not
reviewable.
Moreover, it is not
final because still
allows judicial review
if the employee
breaches the
settlement
agreement.
APA presumption in favor of
review may be rebutted by
clear and convincing evidence
of congressional intent to
restrict access to courts.
Moreover, just because a
statute makes parts
unreviewable, does mean to
whole is unreviewable.
In order to rebut the
presumption in favor of
review, a party must show
that congressional intent to
preclude review is fairly
discernible in the statutory
scheme.
NOTE- the more important
the interest @ stake, argue
not committed to agency
action
33
Judicial Review limitsstanding – constitutional
requirements
(2) an agency’s refusal to
grant reconsideration of an
action because of a
(material?!?!?!!) error (3)
allocations of lump sum
appropriations (4)
Pragmatic considerations
determined by the court.
These pragmatic
considerations include
nature of agency action (i.e
not prosecute), the need for
unreviewable discretion,
judicial competence to
review the decisions, the
extent to which review
would interfere with the
agency, the nature and
importance of the
individual interest in
review, amount of
expertise required (Barlow
v Collins), and comparing
with other language in the
statute (new york racing
association- compare
discretion granted in one
provision with others).
Article III § 2 of the
constitution limits judicial
power to cases and
controversies. Thus,
judicial input can only be
exercised when there exists
concrete disputes between
adverse parties that can be
resolved through the
application of law, whereby
a party will have
“standing.” There are three
essential requirements to
establish standing. First,
plaintiff must allege that he
has suffered an injury in
fact. Second, that the injury
in fact was caused by the
agency action. Finally, that
courts may redress the
injury in fact. These
obligations are
jurisdictional, thus the
action can be dismissed at
34
Judicial Review limitsStanding- Injury in fact
any time.
An injury in fact is an
invasion of a legally
protected interest, which is
concrete and
particularized, and actual
or imminent and not
conjectural or hypothetical.
Historically, the courts
tended to determine
whether plaintiff’s had
standing, inquiring
whether the action violated
a legal right possessed by
the plaintiff, i.e. those rights
granted by the constitution,
statutes, or common law.
However, this legal rights
test eventually changed
given the amount of public
rights groups challenging
agency actions.
Sierra Club v Morton
The legal rights test is no
longer applicable. Instead,
standing may be granted if
individual members of a
group have suffered aesthetic,
environmental, or
recreational injury.
NOTE: this was dicta- P’s did
not have standing in this case
b/c merely had ideological
interest.
Standing- procedural
violations
Standing- Informational
violation
Standing for a procedural
violation is only granted
when the agency’s
procedural violation could
impair a separate concrete
interest. The right to have
the executive observe
procedures is insufficient.
Thus, plaintiff must show
that they would have
standing to challenge the
substantive outcome.
Informational injuries may
be sufficient to confer
standing.
Defenders of Wildlife
Federal Election
Commission v Akins:
court concluded that
a group of voters had
standing to challenge
FEC’s decision that a
An informational injury that
directly related to the
exercise of voting is concrete.
35
Standing- Environmental
Injury
Standing – Risk of future
injury
In an environmental injury
action, plaintiff must show
geographic and temporal
nexus.
A plaintiff may still have
standing even though there
is only a risk of the injury
occurring. Increases in risk
can qualify as congnizable
injury in fact. Plaintiffs
must demonstrate a
“substantial probability”
that injury will occur.
lobbying group was
exempt from
statutory reporting
requirements.
Lujan v National
Wildlife- georgraphic
nexus required- site
specific activities that
diminish member
enjoyment
Lujan v Defenders of
Wildlife: must show
that aqency activities
were going to occur
@ an established
date, or regularly
occur. Not enough to
show that you’ve
gone in the past
Defenders of Wildlife
But see Public
Citizens Inc v
National Highway
afrty Admin: D.C Cir.
Cautioned against
using statisticians.
But see Mass. V EPA:
allowing standing
because of the
increased risk that
coastal properties
would be flooded if
didn’t regulate
But see Summers v
Earth Island Ist.: not
allowing standing
based on statistical
probability that a few
members would
happen to stumble on
a parcel of land
affected by action
But see Monsana v
Environmental and health
injuries are often purely
probabilistic.
Concurring opinion: would
not apply this test @ all if
court were not required to do
so by stare decisis.
Scalia: recognition of standing
on these grounds would make
a mockery of the standing
requirement. Must alleged
concrete, particularized injury
36
Standing- Causation redressability/procedural
StandingCausation/redressability
in equal protection
Standing- Judicial
prudential limits
A person who has been
accorded a procedural right
o affect his concrete
interests can assert that
right without meeting all
the normal standards for
redressability and
immediacy. Thus, the
plaintiff need not show that
following different
procedures would
necessarily have changed
the outcome or that an
order to follow more
procedures would cause
the agency to change its
decision
In cases involving equal
protection violation, the
supreme curt has held that
disappointed applicants
need not prove that their
applications would have
been successful, reasoning
that the injury in fact giving
rise to standing is a denial
of equal consideration
In addition to the
constitutional limits on
review, judges have
developed prudential limits
as well, however, because
they are judge-made, they
may be waived by statute.
There are 3 limitations.
First, a litigant cannot raise
another persons legal
rights. There is an
exception, however, for
association standing. If the
association standing.
Moreover, courts have
expanded it to allow
Geerston Seed Farms:
a farmer complained
of potential
contamination of
alfalfa due to genetic
engineering
regulation- good
enough risk, can
qualify
Defenders of Wildlife
Note- courts will allow
standing to NEPA violations,
i.e. didn’t to the EIS., because
argument is that maybe they
wouldn’t have done the action
after contemplating the
effects.
Allen v Wright
37
Standing- Judicial
Prudential Limits- zone of
interest
Standing- Separation of
poers principles
Judicial Review- Timing
of review
litigant who has suffered a
concrete interest. Second,
the court will not address
grievances more
appropriately addressed in
the representative
branches and Third,
plaintiff’s complaint must
fall within the zone of
interest.
Are the interests sought
arguably within the zone of
interests t be protected or
regulated by the statute or
constitutional guarantee in
question. (Association of
Data Processing v Camp).
This test is not meant to be
especially demanding .
The court has invoked
separation of power
principles in three distinct
ways in standing cases.
First, the court has used
standing to restrict the
jurisdiction of the federal
courts to cases or
controversies under Article
III. Second, it has invoked
standing rules and other
justiciability doctrines to
preclude the federal courts
from resolving disputes it
deems better suited t the
political process so that the
courts will not intrude into
areas committed by the
constitution to other
branches of government.
Third, some justices use
standing as a tool to
prevent congressional
overreaching by
constricting the courts to
aid in its battles with the
executive branch.
The issues raised by the
timing doctrine involve
balancing the need to hold
agencies accountable and
the need to avoid improper
judicial interference with
Clark v Serurities Ind.
Assn (p 1111)
Thus, if a court finds that
Congress intended that a
particular class of plaintiffs be
relief upon to challenge
agency disregrd if the law, a
member of that class will
satisfy the zone of interest
test
Ticor Tittle Insurance
v federal trade
1 judge thought action was
not final, another thought it
was not ripe, and 3 others
believed didn’t exhaust
remedies
38
Judicial Review- TimingFinality
the exercise of decision
making authority that has
been properly delegated by
congress to agencies. In
order to avoid such
interference, four doctrines
of timing apply: finality,
exhaustion, ripeness and
primary jurisdiction. As a
practical matter, however,
a given case will often
represent multiple timing
issues, and the matters
overlap.
Finality prevents court
interference in ongoing
agency activities. The court
in standard oil said the test
for finality depends on (1)
whether the action is a
defintive statement of the
agency’s position, or (2)
whether the action has
direct and immediate legal
force requiring immediate
compliance by regulated
entitles. The court has gone
on to announce other tests,
however, none has
overruled the other, thus
they all may apply.
Franklin v.
Massachusetts
Bennet v Spar
To determine whether an
agency action is final, the
court must examine
(1) whether its impact is
sufficiently direct and
immediate and has a
direct effect on day to
day business.
(2) Whether the agency
action is only the
ruling of a
subordinate official or
tentative
(3) whether the agency
has completed its
decision making
process and
(4) whether the result of
that process is one
that will directly
effect the parties
(1) The action must mark
the consummation of
the agency’s decisionmaking process- it
must not be merely
tentative or
interlocutory
(2) EITHER the action
must be one by which
rights or obligations
have been
determined or which
from legal
consequences will
follow/direct and
immediate effect
39
Exhaustion
While exhaustion and
finality are very similar,
exhaustion differs in that it
focuses on the plaitntiff’s
conduct rather than the
agencies. § 704 of the APA
has been interpreted by
courts as requiring a
person to exhaust
administrative remedies,
but only in two
circumstances. First, when
expressly required by
statute. Second, when an
agency requires it by rule
AND provides for an
automatic stay of the
agency action pending
appeal. There are three
versions of exhaustion.
First, a plaintiff must file a
claim firectly with agency,
and thus cannot bypass the
agency. Second, even if you
file a claim with the agency,
you must follow through
with the entire set of
available procedures.
Finally, there is issue
exhaustion which is the
notion that litigants may be
barred n raising certain
issues in court that it did
not raise with the agency
(this is more in adversarial
context- about surprising
the opponent). Exhaustion
protects the authority of
agencies to administer
regulatory programs
especially when the action
under review involved
exercise of discretionary
power. It also promotes
judicial efficiency by
allowing agencies to
correct their own errors
and avoid judicial
intervention and provide
useful record, particularly
in complex technical cases.
To determine whether an
Daby v Cisneros:
interpreting § 704overruling common
law
40
Judicial Review- TimingExhaustion exceptions
Judicial Review- Ripeness
issue is precluded, the
court must balance the
interest of the individual in
attaning prompt access to
federal court against the
institutional interests.
(McCarthy v Madigan)
There are three exceptions,
however, to the exhaustion
requirement. First, when
the resulting delay would
prejudice the plaintiff’s
ability to obtain judicial
relief at a later time such as
when delay would cause
irreparable harm (Bowen v
City of NY). Second, if the
agency would lack the
authority to resolve the
issue or grant the relief
requested, such as when
the plaintiff challenges the
constitutionality of the
statute under which the
agency operates. Third, if
an administrative remedy
may be inadequatewhere
the administrative body is
shown to be biased or has
otherwise predetermined
the issue before it such that
requiring exhaustion would
be futile. It is not clear
however whether these
exceptions would be
applicable under the APA,
or only when the APA does
not apply.
Ripeness overlaps with
finality because an agency
decision that is not final
will not be ripe for review.
Ripeness issues will
typically arise in contexts
other than pre enforcement
review, such as when a
litigant challenges an
agencys planning
document after adoption
but prior to application in a
factual context. The court
in Abbot labs created a 2
Ohio Forestry v
Sierra Club Test
Whether an issue is ripe
(1) Whether delayed review
would cause hardship to
the plaintiffs (like 2d
factor in abbot labs)
(2) Whether judicial
intervention would
inappropriately interfere
with further
administrative action
(3) Whether the courts would
benefit from further
factual development of
the issues presents (like
41
Primary Jurisdiction
part test. First, si the issue
fit for a judicial decision.
Typically if the nature of
the claim is purely legal,
this will weigh in favor of
review. Second, would
hardship result to the
plaintiff if the court
withholds review?
Typically a court would
focus on whether there is a
legal duty imposed
requiring plaintiff to alter
his primary conduct. If the
only option is to violate the
regulation or comply with
something that is wrong.
Primary Jurisdiction
permits a court to stay or
dismiss an action properly
before it in order to allow a
federal agency to address
it. The relevant
considerations are (1)
whether the question at
issue is within the
experience of the judges or
involves technical or policy
considerations peculiarly
within the agency’s
expertise (2) whether the
question is particularly
within the agency’s
discretion
(3) Whether there is
substantial danger
of inconsistent
rulings and
(4) Whether a prior
application to the
agency has been
made
first abbot labs)
42