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 § 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… 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. Adjudication §§ 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 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. Separation of Powers Independent agency: one that is not located within a department Independent establishment- one that is insulated from president because can only remove “for cause” 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
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 who must be appointed by the president and Whether the particular means chosen for the appointment of an inferior officer is proper Separation of powers- exeucitve power- Appointments clause Morrisson v Olson: Whether an Officer is principal v inferior turns on Whether tenure is limited Whether jurisdiction is limited Whether removable by an officer under the direct control of the president Whether the officer has limited duties Separation of powers- exeucitve power- Appointments clause Morrisson v Edmonds 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) Separation of powers- exeucitve power- Appointments clause 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 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 “court of law”, allowed to be vested with appointment authority of inferior officers pursuant to the constitution Separation of powers- Head of a department: Art. Free Enterprise Fund A department is a
exeucitve power- Appointments 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.” 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,” Separation of powers- exeucitve power- Supervise Executive interference- if the executive interferes to an extent that the agency is not relying on its expertise, the court canot defer) New York v Reily: finding that the EPA was not improperly relying on the opinion of the President’s Council on Competitiveness Separation of Powers - Removal Removal power is arguably one of the most important powers held by the President. 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) Separation of Powers - Removal Humphreys Executor: congress may restrict presidential removal powers when the official is 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 Allen v Barnhart: cautioning against harmless error because it may violate the reasons requirement. 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 legislative,
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. 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 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. Ethyl Corp v EPA: 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. 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 Reviewing Agencies Vermont Yankee (1978) Courts have no authority to order procedures beyond those required by statute or due process. Judicial Review- Substantial Evidence 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. Universal Camera Corp. v NLRB Substantial evidence is more than a mere scintilla and is such evidence as a reasonable mind might accept as adequate to support a conclusion. Judicial Review- substantial evidence While substantial evidence standard is applied to facts, parties challenging agency findings cannot simply 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 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 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 argue
an agency finds a fact that is at odds with the ALJ and it is based on a testimonial inference that the issue was not based on testimonial inference but rather derivative, i.e. shows judges may differ on which it is) 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. To determine whether deference is due: 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 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 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. 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. Step 1 of chevron permits rules of statutory construction such as reference to expressio tool and legislative history Judicial Review- Statutory Interpretation Step 2 – At step two, the court is extremely City of Chicago v Environmental Def. NOTE- this case leaves unclear whether if an agency
deferential. The court will only reverse the agency’s interpretation if it goes beyond the scope of whatever ambiguity the statute contained. 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 Judicial Review- Statutory Interpretation 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) 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 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. Skidmore v Swift & Co.: (less deferential, agency opponents want this) The weight of the agency’s judgment in a particular case will depend upon The thoroughness evident in its consideration The validity of its reasoning The consistency with earlier and later pronouncements All those factors which give it power to persuade, if lacking power to control Statutory Interpretation- What 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. Christensen v Harris County: DOL interpreted a statute in an opinion letter. 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 Statutory Interpretation- What test applies? 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 United States v Mead Corp.: where the customs office issued a ruling letter which provides guidance on the interptation or application of customs laws. Justice scalia dissent: very disappointed/upset that court is basically displacing chevron
The agency decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise Judicial Review- Arbitrary & capricious 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. 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 Judicial Review- Arbitrary & capricious 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. 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 Judicial Review- Arbitrary & capricious New England Health Care Employees v NLRB: Agency’s decision was arbitrary & capricious because failed to consider another option (state farm factors). 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 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). National Petroleum Refiners: construing general grants of rulemaking authority as confined to establishing procedures for implementing adjudication or other agency responsibilities. See also Dupont
interests, then the rule may be arbitrary & capricious. Rulemaking- Rulemaking petitions § 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. 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 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) Rulemaking- Rulemaking Petition – Reviewability 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 Telecommunications Research & Action Center v FCC Whether review is available Time agencies take to make decisions must be governed by a rule of reason 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 Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake The court should consider the effect of expediting delayed action on agency activities of a higher or completing priority The court should also take into account the nature and extent of the
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. agency, this weighs in favor of adding the information. Rulemaking- opportunity to comment § 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 Rulemaking- Statement of basis and purpose § 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. 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 REVIEW- some statutes will require the person to raise the issue in the commenting period to get judicial review) 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. Rulemaking- A different rule than the one proposed 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 Chocholate Mfrs. Assn v Block The test of whether new notice is required is whether the notice that was provided was sufficiently descriptive to provide interested parties
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. 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. Rulemaking- notice & comment Ex parte comm.. 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. 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. 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 agency- Agency advocate: this has no bearing whatsoever, only to the clear air act Contra-agency: these are the basic requirements- court referenced integrity of notice) Rulemaking & NEPA 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. Calvert Cliffs Coordinating Comm. V United States Atomic Energy Comm’n (p. 408) 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
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. Adjudication- Triggering APA 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. 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. Informal, non-APA Adjudication 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
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 Potential deprivation @ issue- reliance on benefit- delay between hearing and cut-off Most imp. 2 least imp.: personal liberty, parental rights, welfare benefits, basic utilities, disability insurance benefits, employment 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 Reliability & fairness of current procedure If add’l procedures doesn’t increase accuracy= not required The governments interest including the function involved, the fiscal and administrative burden that the additional or substitute procedural requirement would entail Cost alone not sufficient- but policy like efficiency, etc. Informal Agency Action- Informal Adjudication § 555(e) is the only informal agency adjudication requirement under the APA, which is to provide prompt notice Overton Park: the decision to build the highway was an “order”. Informal Agency Action- Non-legislative Rules § 553(a)(A) exempts rules from notice & comment procedures. These rules are America Hosp. Assn v Bowen Courts distinguishment is not clear. Instead, the court itself as viewed the various approaches as fuzzy, tenuous,
to determine whether it is exempt from notice and comment procedures. Informal Agency Rules- Rules of Agency practice & procdure 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 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. 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 Chao v Rothermel (3d cir. P 747) 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 Estate of Shapiro v Commissioner of The rule is binding if the rule prescribed