administrative law - pierce law/administr… · web viewthe word “hearing” does not require...

Administrative Law - Pierce F2011

1. STRUCTURE OF AGENCIESa. Agencies: entities governed by the APA with substantial independent authority

i. Power: APA in conjunction with the organic statuteii. Independent Agencies: multi-member; staggered terms; bare majorities require; for cause

removal1. Removal of "for cause" is really not import: President offers them a choice [quit/fired]2. Public forum requirements, multi members more important

b. Decision-making Structurei. The choice determines whether the agency is viable

ii. Split Enforcement Model: Two separate agencies [quasi-criminal justice system]1. One makes the rules and investigates; no power to make adjudication decisions2. Argue that Due Process requires; but the slowness of decisions kills it

iii. APA Model: same agency makes the rules, investigates, prosecutes, and adjudicates1. Bureaucratic choice that allows mistakes for speed and efficiency2. Withrow v. Larkin [examining board for medical licenses under APA model]

Combination does not without more constitute a statutory or due process violationc. Bias And Prejudgment

i. APA and Due process require a neutral decision maker [fantasy]1. Pecuniary Bias: monetary interest [what about small towns; expert boards]2. View Point Bias: previously addressed issue as non-decision maker

a. Rehnquist in Laird - Under no reason should viewpoint bias be a reason ii. Std: Unalterably Opposed opinion (non-sense)

1. Ass'n of National Advertisers v. FTC [how much to restrict advertising on children television, FTC commissioner had made his views known] The commissioner was not shown to have an unalterably opposed opinion

iii. Real World Bias Rules - Nearly impossible to have no Bias in a decision1. Issues of Law, Policy, Legislative Fact

a. Impossible to disqualify a decision maker for expressing a viewi. Do you want a decision maker who has no opinion?

ii. Any other rule - how can a decision maker ever make decisions?2. Issues of Adjudicative facts

a. Facts specific to a case, but are not typically relevant to rule makingb. No case has ever disqualified a person from a rule making

3. Real World Adjudicationsa. If a person has expressed an opinion on adjudicative facts – unalterable

d. Ex parte Contacts i. Banned during Formal Adjunctions/Rulemaking

ii. APA silent for Informal Rulemaking 1. Ex parte contacts are expected and necessary to NOPR2. Rulemaking: more like congress (legislative) than the courts

a. Sierra Club v. Costle [EPA issued rule for emission of SO2 that would heavily effect the economy, jobs, etc. - met extensively with President; agencies; congressmen] Ex parte contacts were necessary to connect the agency process to the electoral process

b. Big decision effect the entire economy – don’t want experts do this3. Disclosure Rule: Failed attempt by DC Circ

a. HBO v. FCC [cable television regulations between over the air broadcasters and cable broadcasters - many ex parte contacts occurred] Ex parte contacts must be disclosed during rulemaking

i. Court was making up procedures for agencies [Vermont Yankee]b. ACT v. FCC [cabins HBO to rulemakings where two or more individuals are

competing for the same right under Sangamon Valley [due process]

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2. AGENCY ACTIONa. Formal Adjudication - Oral Hearings [§§554-558]

i. Required for an adjudication if: 1. Statutory Required due to “magic words” [or]

a. “On the record after opportunity for an agency hearing” [§554]2. CON Required [Due Process _ Mathews Factors]

ii. The word “Hearing” does not require an oral hearing – written hearing is sufficient1. Florida East Coast (1973) [ICC required to address chronic freight car shortage] Term

“Hearing” is ambiguous and in this context a written is sufficient [rule making]2. Dominion Energy v. Brayton (2006) [industrial firm using water for cooling, EPA issues

permits to plants to thermal pollute] It is reasonable for the agency to interpret a “hearing” requirement as written exchange of data and views [adjudications]

b. Informal Rulemakingi. Basic Types of Rules

1. Legislative Rules [N&C rules]a. Rules are indistinguishable from statutes – power granted through APA and

organic actsb. National Petroleum Refiners [FTC changed mind and passed the octane ratings]

Ambiguity in statute sufficient to allow agency to pass legislative rule2. Adjudicatory Rules

a. Issue generally applicable rules through case-by-case adjudications [Chenery]i. Purpose: Inability of agency to foresee consequences of general rules

ii. Limits: if statute clearly requires agency to issue a ruleb. Not bound by earlier court if provides a different and legally permissible basis

i. Chenery [violation of the SEC statute based on case law – court struck; SEC then determine same action on experience/ expertise] Subsequent agency reasoning was a permissible basis for previously struck SEC rule

ii. Features of Rulemaking1. Benefits

a. Higher quality: broader input, focus on policies; and forward-looking b. Fairness: broader participation rights, notice, and application to at same timec. Efficient and effective: binding effect, reduction in hearings and scope, clarityd. Political accountability: advanced notice, broader participation and transparent

2. Decides Class of Contested Issues: entire group of issues through a rule makinga. Benefits: Efficiency, accuracy and cost of decision making

i. But: Matters of degree – rulemaking will not helpb. Heckler v. Campbell [SSA uses a grid rule to determine disability] For those

within the grid (not soft tissue); highly effective rulec. Bowen v. Yuckert [SSA instituted prescribed a 5 step process for decision

making process requiring a finding of severe impairment]i. Rate of finding disability - significant drop

ii. Changed substantive standard or efficiency?3. Exceptions must be drawn extremely narrow

a. If the exception was easy; would swallow the rule and make adjudicatoryb. Yetman v. Garvey [FAA case with forced retirement at age 60 for commercial

airline pilots due to increased risk of sudden incapacitation]4. Retroactive Effects [Bowen v. Georgetown ]

a. N&C/§553 Rules: No retroactive effect unless congress has explicitly authorized i. Test: Cannot attach new consequences to past conduct

b. Adjudication Rules: can apply retroactively unless that result is unduly fairi. Acting like a court and applying a new rule to past facts

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ii. Incentive to not use the rule process to announce general rules of conductiii. N&C Rules: General Procedural Requirements

1. First : MUST have Power to issue rules & No magic words in statutea. Adjudicative/Interpretative Rules: Presumption of power

2. Procedure Requirements of Rules [§553]a. NOPR; comments; [AND] concise gen. statement of their basis and purposeb. Additional Procedures: must be through rule, statute, CON required

i. Vermont Yankee [Courts were requiring limited scope oral hearing to expand records for review on important issues] The oral hearing are not required by rule, statute, or CON, and are court imposed procedures

iv. NOPR1. Notice must adequately foreshadow final rule, [and]2. The final rule must be a logical outgrowth of the Notice and Comment Process

a. Matter of degree – proposed rule is nearly always different than final rulei. Shell v. EPA [rule mentioned regulating chemicals, but not in mixtures]

Did not foreshadow the scope of the final rule to residues/mixtures3. Disclosure Rule: Notice must refer to studies/ data sources agency will rely

a. DC Circ: questionable whether its CON under Vermont Yankeeb. Portland Cement [EPA regulating emissions of cement plants; does not reveal the

source of data in the NOPR] Insufficient notice since not available for commenti. New studies and data come out often -- when do you stop publishing?

c. American Radio Relay League v. FCC [rejecting an agency rule on notice for relying on study it did not identify in the NOPR] [questions under VY]

4. NOPRs are REALLY hard to issue: 5-10 years between notice and final rule being issued; agency heads last 22 months; 3-4 years to draft

v. Comments1. Critical Comments: must be addressed by the agency with huge basis and purpose

a. Requires: factual predicates, alternatives, consulting firms [huge cost]b. Nova Scotia Foods [fish case where the temperature; A&C for comments]

c. Six Exemptions from N&Ci. Subject matter [Military and Foreign Affairs; Gov Property and Benefits]; Good Cause [very

hard to meet - emergency for bodies piling up]; Rules of Procedure [Erie problems ]ii. Interpretative Rules and Policy Statements [litigated all the time]

1. Challenge: Procedural invalid legislative rule issued without N&Ca. Cannot Challenge: notice; basis; and no record for A&C

2. Interpretative Rules: clarify existing lawa. Legislative Rule if: Agency says its is legislative; rule is published [most are]

i. Enforcement action could not be brought w/o the rule1. Is the new rule required to bring the action? [Y – Leg]

ii. Rule amends a pre-existing legislative rule1. Amends Interpretative Rule: DC Cir calls it legislative2. Paralyzed Veterans - crap – prof trying to change

iii. American Mining Congress [Act authorizes MSHA to require mine operators to report; issue interpretative rule to define diagnosed]

3. Policy Statements: Ambiguous, non-binding statements that are hard to usea. Ambiguous Language: cannot give clear language

i. PG&E [regulating price of gas results in shortages – ambiguous lang] b. Not Legally Binding: regulates or agency

i. Must remain free to act; cannot limits its discretion w/ policyii. Young [unlawful to serve any adulterated food “we will not take action

below this level” – found to be binding] c. Practically Binding: following policy in a group of cases

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i. Appalachian Power [adhere to policy - its binding; but don’t - its A&C]d. Judicial Review Agency Action

i. Presumption of Reviewability: includes informal actions that have not record1. Overton Park [state wanted to put highway through a park] Requiring formal findings due

to ambiguity of the agency action – testimony (rejected in LTV)2. PBGC v. LTV [LTV defaulted and PBGC took over pensions] While testimony is not

required, the agency is require to give sufficient info for arbitrary and capricious reviewa. Prof: Makes no sense: Not a rule making; Not deprivation of liberty

ii. Formal Adjudications – Substantial Evidence1. Scope of Review: review Agency finding; NOT ALJ findings

a. Deferential STD: Reasonable mind might accept considering all the evidenceb. Uphold any finding of fact by an agency if substantial evidence [§706(2)(e)]

2. Types of Evidence: can be met purely with written reportsa. Subpoena writers: very limited by the ALJ standard [cost prohibitive]b. Richardson v. Perales [SSA - denial of benefits based on written notes (hearsay)

vs oral testimony] Admissibility of evidence does not factor into SE std3. SE/AC: There is no difference in substance between the standards [ADP – same facts]

iii. Informal Adjudications - Arbitrary and Capricious [APA 706(2)(A)]1. Pre-Abbott Std : no set of facts and no plausible reason for the rule [Box and Basket]

a. Still exist - Can be applied when a court reviews a rule with no record2. Abbott Standard: Must engage in reasoned decision making

a. N&C Required: rescission; amendment; AND issuance of rules i. Issuing: give factual predicate and reasoning

ii. Changing: statement of why new policy is better and why 1. Not required to prove the policy is actually better [Fox]

iii. Critical Comments: require long and detailed basis and purposeb. APA [rule required head rest to be installed in all cars after a certain date,

challenger wanted it retroactive] The weak arguments were not supported by the record and a plausible reason given by the agency

c. National Tire Dealers [branding tires, retreads found that the work was dangerous and would increase the price, and gave alternative] A&C since agency did not adequately respond to the studies challenging the rule

d. State Farm [passive restraints in automobiles - wanted REVOKE rule since everyone was using the auto seatbelt method instead of airbags - did not give a new separate factual basis] Did not sufficiently address viability of airbag alternative nor explain difference in factual predicate

e. Fox v. FCC [fleeting explicative used on TV - historically the FCC did not go after] Provided sufficient reasons why new policy was better

i. CT: agencies are not required to apply the CON canone. Rulemaking Ossification

i. Legislative Rules: agencies are pressed due to time and cost [not doing them anymore]1. Chenery [ADJ gen rules]; State Farm [long basis; 30% overturn]; Shell [foreshadow

notice - 10% failure]; Portland Cement [disclosure]; Georgetown [no retroactive affect]ii. Adjudication Rules individual fact patterns; lower impute; limited notice; questionable fairness

iii. Congress's Response: Regulatory Negotiation [Reg-neg] - get together and fight first [nope]iv. Courts Response: Remand without Vacation [Remand without Vacatur]

1. With Vacation: no rule and not retroactive2. W/O Vacation – rule remains and remanded on x A&C issue

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3. AGENCY INTERPRETATIONa. Basic Statutory Theories

i. Deferential view: is it warrant in the record and reasonable basis in law ii. Skidmore v. Swift [time spent on standby in fire hall working time, the courts decide and the

agency role to enforce] All types of decision are given deference1. Thoroughness of consideration and Validity of its reasoning; Consistency with earlier and

later pronouncements; [and] persuasiveness iii. De Novo Review: Agency interpretation are issues of law resolved through case-law

1. Hearst [newsboys try to form a union after supplier increase price of the papers – agency found the boys were not employees] Historical basis for the decision

iv. Dose Response: only know the high dosages; background and time frustrate lower range1. Benzene [Benzene has serious effects far above 10ppm; but we have no idea what the at

lower concentration - new standard as lowest detectable level] New standards can replace old standards if old standard creates a “significant risk”

b. Chevron Reasonablenessi. Chevron Two Step Test

1. Has congress directly spoken to the precise question at issue? [Y – legal question]2. Is the statute ambiguous? [Y - court must uphold any reasonable agency interpretation]

a. Ambiguity: policy decision delegated to executive [political accountability]b. Not Ambiguous: this is what the statute says; agency must follow c. Reasonable: reasoned decision making process [State Farm]d. Chevron v. NRDC [meaning of term “Source” in the Clean air act - agency made

decision to view source as bubble instead of individual pieces] Congress did not define source, its ambiguous, and the agency’s meaning is reasonable

3. Never Ambiguous: Traditional Tools of Statutory Construction [FN 9]: Dictionary; Legislative Hist; Statutory Purpose; Canons of Con

ii. Reality: Chevron did not change anything [continue to split 4-1-4]1. Rule Making Idea: start a NOPR to decide terms and court should uphold (never done)2. Rapanos [CWA confers jurisdiction over "waters of the US"; agency has made

interpretations of this meaning through case-by-case adjudications] a. Dissent: Congress did not define the term; it’s an ambiguous; and reasonableb. Scalia: interpretive tools show Congress overreached; agency outside the statute c. Kennedy (solo): need for a nexus (on his own boat)

iii. Scope: If Chevron does not apply Skidmore deference applies [Mead]1. Christensen [county policy where employers can force a employee to take their time -

Agency "opinion letter" that county does not defer – Skidmore applies] 2. Mead [customs service classifications decision through informal adjudication, service

applies tariff laws through the state done informally – skidmore applies]3. Brand X [agency interp #1 is court reviewed and upheld as reasonable, agency interp #2

is inconsistent with interpr #1 -- LCT held stare decisis] Prior term was ambiguous and reasonable interpretation under Chevron

Type** Chevron SkidmoreFormal Adjudications/Legislative Rules X [Christensen]Interpretative Rules/Policy States X [Mead]General Deference to Agencies Chevron >SkidmoreDeference to Agency’s Interpretations Ambiguous and reasonable - must Persuasive – not mandatoryAmount of Reasoning Reasoned Decision Making [State Farm] “Quality” of reasoningConsistency Not a factor unless unreasonable Lack of reduces quality/deferenceStare Decisis Not Ambiguous: Stare Decisis applies

Ambiguous: No stare decisis Stare Decisis applies

**Court is never clear which deference was applied

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c. Agency Rules i. Deference give to agency interpretation of its own legislative rule [Auer/Seminole Rock]

1. STD: uphold unless Plainly Erroneous or inconsistent with the regulationa. Plainly Erroneous - is that just unreasonable or "step 1 of Chevron"?

2. Penalty Cases: fair warning required to apply an interp of an ambiguous rule a. Fairness concerns: can only be penalized with reasonable notice/DP

3. Anti-Parroting : will not get deference if you parrot [copied statute]a. Matter of Degree – have not gone far enough in changing wordsb. Purpose: avoid judicial review and N&C processc. Gonzales v. Oregon [state allowed doctors to assist with suicide - agency interps

parroted rule to cover the dispensing of drugs] Auer deference is not due ii. Scalia who wants to overrule: no deference to interpretation of own rules [broad and ambiguous]

d. Deference Rates: Statutory Doctrinesi. Doctrine: Does not seem to matter - overall rate is 67-70% upheld of agency decisions

1. Auer: Outliner at SCOTUS (91%); but 76% at District Courtii. Procedures: only seems to matter if 1st time advancing position

iii. Relative Expertise: More deferential with agency they think knows a lot more than they doiv. Ideological beliefs: 30% of difference in voting is attributed to view points

1. Options: use a mixed panel on the circuit [whistleblower; but is it CON]v. DC Circuit is less deferential: repeat players; expertise; SCOTUS aspirations

e. Arguments in Interpreting [for the exam]i. Considers relationship between statute and agency action [strong – no Chevron/Skid]

1. Cannot act outside the boundaries of the statuteii. Considers relationship between available evidence and agency action; and

1. Evidence is always in conflictiii. Considers quality of agency’s reasoning [State Farm / Skid]iv. Result: Court loads their arguments

1. Even applying the less/more deferential std of Skid/Chev, would still uphold/over2. Manipulate Stare Decisis: Argue Cases upheld under Skidmore or Chevron

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4. REVIEW OF AGENCY DECISIONSa. Agency Action - Presumption Of Reviewability

i. Court Assumption that congress intended courts to review agency actions ii. CON review: available unless expressly precluded [avoidance canon]

1. Robison [conscientious object performs alternative service; applies for veterans benefits] The statute does not expressly forbid judicial review of CON questions

2. Webster [CIA director terminates a homosexual] While the decision is clearly committed to the CIA, the statute did not preclude review for CON question

iii. Statute Precludes Review [§701(a)(1)]1. Express Language: Statute clearly and unequivocally precludes review2. Structure and objectives of the statutory scheme

a. Confers explicit rights to A; limits same to B – implicitly limits B’s reviewb. Block [milk marketing act - minimum price that milk - limits rights of handlers

review of prices] Structure of act clearly limits review availale to handlers3. Legislative history and Nature of the administrative action involved

a. Statute must explicitly preclude review of N&C rulesb. Bowen [agency determine which services are paid; issues a rule stating they will

not cover a certain group] Barring individual review does not expressly preclude review of the agencies legislative rule

iv. Committed to Agency Discretion [§701(a)(2)]1. Court must have “law to apply” or some legal standard

a. Presumption has moved from never, to most of the timeb. Overton Park [highway through a state park; statute is silent as to reviewability]

Agency had to meet standard of “feasible and prudent” alternativesc. Lincoln v. Vigil [education of Native Americans – closed a program] Decision

to defund a program is committed to the agency unless Congress allows review2. Policy Questions are NOT reviewable without a clear grant from Congress

a. FHA Decisions [public housing program encourage developments to house poor people at reduced rates; agency increased rents] Rent increase not reviewable

i. 1st Circ: no clear standard to apply [implies you can change std]ii. 2nd Circ: law to apply, but Congress implicitly precludes review

b. Agency Inaction: Presumption of Unreviewabilityi. Statutes often have mandatory provisions; but lack resources

ii. Courts can force an agency to act if1. Statute protects private rights not public rights, [and]2. The statute couples "shall" with justiciable standard

a. Result: If the agency says there is an illegal activity - they have to investigateb. Dunlop [election victim; agency decides there was probably illegal tactics] The

illegal finding and mandatory language require an action or reasonsiii. Chaney Rule [Modern Rule]

1. Rebuttable presumption that agency decision not to act is unreviewablea. Agency’s allocation of resources is complicate – beyond keen of courtsb. Does not necessarily apply to:

i. Blanket unenforcement of rules or statutes, [and] ii. Agency decision not to engage in rule making to support a statute

c. Heckler v. Chaney [FDA to prosecute states using lethal injection; not following own policy] FDA decision was based on resource allocation and not reviewable

iv. Responses to Petitions for Rule Makings: Reviewable 1. No Resource Issue [Petitions infrequent]; legal issues and §553(e) requires explanation2. If rulemaking denied – really hard to overturn

a. AHPA v. Lyng [Congress bans soring and tells DOA to implement ban; DOA issue rule; study finds actions insufficient] Required to give reasoning for denial

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5. TIMING OF REVIEWa. Look to Procedural Posture: Reviewable if Final, Ripe, and Exhausted administrative remedies

i. Basic Question: Review at this time and in this posture?ii. Avoidance Canon: President is not an agency [not subject to APA] – subject to statute/CON

b. Final Decisionsi. Agency must completed with decision making process with a Legally bind effect

1. Franklin v. Mass [Commerce implementing census process; sends report to the president for final approval] Commerce decision required presidential stamp to become final

a. Congress Reversed: decisions of Dept. of Com. are subject to judicial review2. Dalton v. Specter [base relocation/ closure, secretary suggests, all or nothing approval by

President, Congress must act to prevent] Agency decision had no legal consequencesii. Final Agency Decisions

1. Change in Legal Status: culmination of the process with legal consequencesa. Bennett v. Spear [Endanger species act, farmers want review of Biological

Opinion that made an endangered species determination] Opinion changed the legal status of the water discharge and were final

i. Report changed in legal status of the water2. Influence/indirect effects: not sufficient for finality

a. EPA report 2 nd hand-smoke [non-binding report classified as A carcinogen – used by activities to pressure state legislatures]

3. Status in Proceedingsa. FIFRA issues [Registration of pesticides, show pesticide benefits outweigh cost

to register, cancellation requires opposite – allow suspension for imminent harm]i. Initiate/not initiate proceeding [not reviewable]

1. Result of proceedings: Yes – No [Reviewable]ii. Inaction in response to petition to cancel [Final/Chaney??]

iii. Suspend ending outcome of cancellation proceeding? 1. Imminent harm finding [final??] – this is going take 3-5 years

iv. Inaction in response to petition to suspend [final??]c. Ripeness

i. Historically: challenge only in enforcement proceedings1. Record from the enforcement; only used bad case; limited review and huge risk

ii. Abbott World: Three Part Test1. Presumption of Review: Congress must intend to preclude pre-enforcement review2. Appropriate for judicial resolution at this time and in this context? Need more info?

a. Procedural questions: always appropriate [N&C; basis and purpose]b. Big Exception: Does not apply to tax rules issued by IRS and Treasury Dept

3. Would petitioner suffer hardship if review is deferred? [i.e. horns of dilemma]a. DC Circ: immaterial prong – always reviewable by this point

4. Abbott Laboratories [FDA issued rule requiring drug makers to include the generic name every time mention brand name] Congress did not preclude review prior to enforcement

5. Toilet Goods [free access rule -FDA confers on themselves the right of free access with a penalty of "may revoke certification"] We require an actual enforcement, and is not ripe

iii. Temporal Limits1. Congress has limited legal challenges to rules for 30 days from ripeness2. Procedural: ripe when the rule was issued 3. Substantive: ripe upon enforcement.

a. Adamo Wrecking [disallowing challenge to emission standards on demo of building for failing to meet congressional time frame]

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iv. Result of Abbott1. Pre-enforcement review became common and even required2. Courts demanded a “record” [notice, comments, and statement of basis and purpose]3. Courts applied a demanding version of the A&C test;4. Major rulemakings now take 5-10 years;5. 30% of rules are rejected as A&C, 10% are rejected based on inadequate notice

v. Modifications to Abbott1. Benefit Eligibility: no Abbott review unless explicit in statute [Catholic Social]2. Alternative Route: provision of alternate route implied preclusion [Thunder Basin]3. Other Routes: presumption strongest when no other means [Illinois Council]

d. Exhaustion of Remediesi. Prudential Doctrine:

1. Judges give deference agencies due to: Expertise; Develop and resolve factual issues; autonomy; efficiency; Deter parties from sandbagging [i.e. bypassing agencies to courts]

a. Minor Reasons: Admin remedies no longer available; Hardship in criminal 2. McKart [designated as sole surviving son, mistakenly re-classified as draft-able] Allowed

in court since no fact finding and others not likely to be as dumb3. McGee [sough a conscientious objector classification and then failed to appeal his denial]

Factual questions concerning CO and collateral effects of sandbaggingii. Non-Mandatory Requirements: person does not have to exhaust

1. Darby [hearing examiner debarred Darby, rule stating that person subject to a debarred order can appeal the decision to the secretary] The debarment was a final action and the statute contained permissive wording allowing judicial review

iii. Statutory Duty to Exhaust 1. Judge Made Exhaustion doctrine - can be trumped at any time by statute

a. McCarthy v. Madigan [prisoners required to exhaust remedies prior to going to court for damages] Allow review since admin cannot award damages

b. Woodford v. Ngo [must exhaust all "available" administrative remedies; limited time period] Cannot excuse failure to exhaust if statutorily required

e. Agency Delayi. APA §706(1) - court can compel an agency to act if unreasonably delayed

1. Enormous problem with no clear solution - There are not enough resources a. Statutory Deadlines: FOIA requires 20 days; OSHA has 0% compliance

2. Standard: Unreasonable a. Reasonableness of resource allocation (But see Cheney)b. Court: give some sort of deadline, missed, and lower quality

ii. Options: Reduce procedures, reduce agencies, reduce agency actions, increase staff 1. Discrete and Mandatory Acts – Not Programs [Norton]

iii. Primary Jurisdiction1. Court has jurisdiction – requires agency’s interpretation

a. Process: Identify and Issue, defer case and send to agencyb. Reasons: national solution; expertise; clarity of the issue; effects of delay

2. Does not Really happena. Very frequent request for amici briefs on the issuesb. Don’t want to refer to the agency as primary jurisdiction due to agency delay

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6. STANDING: IS IT REVIEWABLEa. Injury in fact

i. Concrete and particularized injury [e.g. Economic; physical; aesthetic]1. Richardson [wanted disclosure of the CIA's budget] Interest too abstract and speculative 2. Schlessinger [office in two branches; congress held reserve commissions ]

ii. Generally not general rights unless created by statute1. Akins v. FEC [decided APAC was not a political action committee] Statutory right to the

info that was interfered by agency [right was explicitly in the statute]iii. Geographic/Temporal Proximity: physical close to the injury; and some type of time limit

1. National Wildlife Federation [challenge an entire program of the DOI] Insufficient proximity to the alleged injury

2. Ecosystem, animal, and professional nexus are a laughable [Defenders]iv. Procedural Injury: must show a substantive interest at stake; not that you will win [Defenders]

b. Causation and Redressi. Speculative or indirect causal do not count; must be highly particularized to specific persons

1. Allen v. Wright [black children challenged adequacy of IRS enforcing tax benefits to segregated schools] No proof that deductions directly caused parents behavior

2. Simon [hospitals give services to poor people; did not show specific person/hosipital]3. Linda R. [father no child support - no evidence he would not chose jail] 4. Defenders of Wildlife [agency wants to make two large loans] no redress since agencies

might not comply; happen anyway; take care c. Public Rights [Scalia's Crusade: take care clause permits only the president to enforce]

i. MemOrgs: 1 member w/ standing; interest consistent with orgs purpose; remedy not require indiv 1. Sierra Club [wilderness in CA for Disney World - interest in preserving not an injury]

ii. Revised Injury1. Changed Behavior: show a specific person who changed behavior on reasonable fear

a. Actual injury not required; illegal discharge is a reasonable fear2. Sovereign Injury: state’s sovereign is injured

a. Massachusetts v. EPA [EPA refuse to being rulemaking to regulate emissions of CO2 from new cars] Global warming has harmed the sovereign interest of MA

b. Summers v. Earth Island Institute [national parks being destroy; no state apart] Lacked standing even though millions of members use the national parks

iii. Revised Causation/Redress1. Voluntary Cessation

a. Completed Stopped BEFORE complaint: Steel Co applies and mootb. Violating WHEN filled: voluntary cessation does not moot [Laidlaw]

2. Civil penalties: congress discretion to choose remedy; Deterrent and redress injury3. Legal Fees - derivative fee if you have standing, not sufficient for standing

a. Steel Co [regulatee complies by time of trial] b. Laidlaw [plant discharges into a river, people used to use river and no longer do

b/c of the discharge; plants stops before trial]d. Statutory Standing

i. Zone of Interest: Within the "zone of interest" to be protected or regulated by the statute1. Liberal Application: would the interest of the statute be furthered

a. ADP v. Camp [statute says banks can only engage in the business of banking, agency allow banks to sell excess capacity in data processing services]

b. Clarke [not a demanding test, no need specific intent of congress]c. NCUA [credit unions limited services; law designed to protect depositors]

2. Strict Application: Specifically protected by specific provisiona. Air Courier Conference [ends post office monopoly of international mail,

disallowed union challenge since not considered when statute drafted]

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7. CONSTITUTIONAL LIMITS OF AGENCIESa. Due Process: individual is deprived of “life, liberty, or property w/o due process of law”

i. Defining Individual vs. Group1. Nature of disputed facts [adjudicative v. legislative]2. Individualized determination on contested adjudicative facts requires a hearing3. General contested policy decisions based on legislative facts do not require a hearing

a. Londoner v. Denver [improves area, increases the taxes due to improvement on individuals] Cannot take an interest away from a specific individual

b. Bi-Metallic v. State Board [increased rate of property tax for the entire Denver area] Political process protects the rights of groups

ii. Life/Liberty Interests1. Incarceration; No adverse consequences as a result of exercising a CON right2. Reputation Injuries: "Stigma + Test"

a. Simultaneous stigma with a deprivation of a tangible thingb. Constantineau [village circulate a list of known alcoholics; deprive reputation] c. Paul v. Davis [police circulate name of shoplifters; not deprived of tangible]

iii. Property Interest Interests1. Tenured Employment: property right

a. Roth [teacher not renewed after 1 year on year-to-year contract] Unilateral expectation insufficient for a property interest

b. Perry v. Sindermann [university says no tenure policy - "unwritten" tenure policy] An implied contract resulting in a property interest in the job

c. Contracts v. Property Rights: why protecting K CON when there are damages2. Contingent Entitlements: Property Rights

a. Contingent entitlements are protected – but through Mathewsi. Goldberg v. Kelly [welfare case; office withdraws them following an

agency investigation, oral hearing allowed] Statute granting entitlements on fixed criteria is a property right protected by Due Process

1. Dissent – privileges; higher cost; reduce access to those in needb. Due Process Due looks to [Mathews Factors]:

i. Importance of interest at stake; ii. Risk of Error; [AND]

iii. Cost of added proceduresc. Mathews v. Eldridge [social security benefits, office withdraws them following

an agency investigation, oral hearing allowed after benefits ended] Oral hearing is not required for the SSB

i. Difference: level of need; doctors can write; more objective [all degree]ii. Unstated: compliance $; studies support dissent; value of oral

d. Hamdi [enemy combatant/US Citizen owed due process] 3. Bitter Sweet by Rehnquist [not the law]: accept the benefit of the statute, you must accept

the procedures outlined in statute [Arnett (plurality)]a. Loudermill [rejected by 8 justices - Ct defines the process, not the Legislature]

b. Non-Delegation Doctrine [ART I]i. All legislative power shall be vested in the Congress; but agencies make policy decisions

1. Delegate policy with an intelligible principle; or leg power is to enact statutes2. Purpose of the doctrine: congress to avoid making unpopular decisions

ii. Struck Only 2 cases1. Panama Refining / Schecter Poultry ["hot oil and sick chicken" ] [court holds unCON

provision of the New Deal allowing boards to set prices] a. Giving private parties power to regulate with clear conflicts

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iii. Congress is Ambiguous1. Chevron applies; congress is seeding discretion to the president

a. Whitman [EPA to set air quality standards for no threshold PM] Valid delegation even though background likely near limit

i. DC Cir: wanted a made up std and apply [SCOTUS does not agree]2. Definable limits: limited duration of rights and difficulty in passing statute

a. Amalgamated Meatcutters [Congress gives power to president to control all wages and prices as long as he does act grossly inequitable] valid delegation

b. Mistretta [congress can delegate to an independent agency power to issue sentencing guidelines that bind courts]

iv. Congress is Precise1. Detailed instructions for how to apply language does not work

a. DOA v. Murry [DOA denied food stamps to a single grandmother with 12 minor dependents and income of $58 a month] unCON violation of irrebuttable presumption doctrine - must be necessarily or universally true to pass muster

i. Weird result: if this really applied, whip out every number in the code2. Delaney Clauses [4 exist]

a. No food or color additive can be approved if induce cancer in man or animalsi. 1958: 4 known carcinogens and all killed lots of animals and people

ii. Today: about half of all substances tested induce cancer in animalsb. Reform the FDA tried:

i. Exempt de minimis risk - rejected by the courtii. Refusing to certify all modern measurement devices – absurd

iii. Public Citizen [try to get EPA to remove from the market all pesticides since there use results in detectable level of pesticides; massively increase the incidence of cancer since fresh food prices skyrocket]

1. EPA has the clause amended - the Delaney Clause irrelevantc. Agency Adjudication: ART III

i. Judicial power shall be vested in 1 supreme court and such inferior courts [agency -/ inferior cts]ii. Character of the Right

1. Public Rights: Congress is the source of the right, not at common law2. Private Law Disputes: Disputes with a common law predecessor

a. Uncon for agencies to adjudicate private law disputei. Northern Pipeline [private claims in bankruptcy cases] UNCON

adjudication by an agency of private rights disputeb. Exception: plenary review allows agencies to adjudicate private rights

i. Crowell v. Benson [workers comp; tort brought in agency allowed] 3. Statutory or Rule Based Removal

a. Whether valid reason to move the class out of Art III Courtsi. Narrow class of disputes; requiring justifications

ii. Union Carbide [ANDA – allowing me too apps] Congress has given sufficient justification for removing the private dispute to the agency

b. Agency Rules: congressional silence and justificationi. CFTC v. Schor [argue that D owes P money for violating CFTC rule, D

counterclaims for the debt owed; both are originally tried in CFTC] The agency has the power to adjudicate the common law counter claim

ii. Reasoning: Same facts; Consistency; estoppel; narrow; implicit consentiii. 7th Amendment Protection

1. Granfinanciera v. Nordberg [7th amendment case right to a jury trial] unCON to take away the jury trial if part of common law remedy in 1789, not equity

iv. Reality: Bankruptcy [formal test]; Administrative Case [liberal, easy test]

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8. CONGRESSIONAL CONTROL OF AGENCIESa. Methods of Influence

i. Statues: APA; FOIA; NEPA (environment impact studies); DQA (high quality dataii. Litigating authority: Most go to the DOJ to bring suit or SG for SCOTUS

iii. Confirmation Process: Senates ability to block parties to run agenciesiv. Oversight Hearing: Embarrassing the agency headsv. Casework: What members of congress spend their time doing

b. Limits on Influencei. Adjudications: cannot participate in process [DP]

1. Pillsbury [FTC is conducting a formal adjudication, during adjudication calls in the head of the FTC and attacks the commissioner; Disqualified trial and commissioners]

c. Limited TO Legislative Poweri. Congress must act through bicameralism and presentation

1. Legislative Veto: outside the legislative powera. Chadha [INS had decided deport a person and AG change it, and congress made

resolution to overrule the AG; 200 statutes had legislative vetos, allowing a single chamber of congress to veto a legislative rule]

b. Congressional Review Act of 1996i. Veto consistent with bicameralism and presentment

ii. Temporal delay: every rule to congress and 60 legislative days of delay2. Appropriations: must go through bicameralism

a. Cannot use an agent to circumvent the processb. Bowsher v. Synar [statute required CBO and OMB to make projects to send to

the CG, whos final projection binds Pres.] CG is an agent of congress since congress initiates removal proceedings

ii. Congress CANNOT appoint officers – only consent 1. Buckley v. Valeo [FEC selection of 8 members, 2 Pres, 2 Senate, 2 House -- 1 from

house and senate that have no vote] Congress cannot appoint officers2. FEC v. NRA [president nominates all 6, but no more than bare majority; 2 non-voting

mem] Non-voting members infringes on the appointment power 9. EXECUTIVE CONTROL OF AGENCIES

a. Executive Power: Jackson Tripartite Analysisi. Delegated by Congress, his power is “at its utmost;”

ii. A statutory vacuum, his power is “uncertain;” 1. Generally: President can do anything to defend the persons and property of the US2. In re Neagle [president assigned a body guard to a SCOTUS justice]

iii. Contrary to will of Congress, his power is “most dubious.” 1. Youngstown [steel mills seized; president had sought power before but not granted]

a. Effect – president’s don’t ask congress for the power 2. Pres cannot Directly Overrule agencies: done informally, low visibility

b. Appointment Poweri. Sources: Vesting, opinion writing, take care, commander in chief, unitary executive

ii. Officer of the US: 1. Appt through confirmation process [Pres & Senate]2. Characteristic: issue legally binding rules; final decisions; bring cases to court3. Reassigning officer: do not go through confirmation [Edmonds coast guard judges]

iii. Inferior Officer: 1. No Confirmation – Congress can confer on Pres; Head of Dept; Court of Law2. Requirement: Must have someone between you and president

a. Morrison v. Olson [IC - appointed by a 3 judge court/removed AG for cause] IO due to duration/scope/no policy/ DOJ policies; and can be removed by the AG

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iv. Employees1. No Confirmation – anyone can appoint2. Civil rights Commission: investigate and issue reports persons are employees3. ALJs: employees of the commission they serve

a. ALJ are Appointed: Competitive exam (adds 10 points to all exams - dispositive) OPM sends list of top 3 to an agency needing an ALJ

b. Landry No final determins since agency can substitute its opinion for the ALJ v. Courts of Law vs. Departments

1. Freytag v. COIR [arguing over judges on the tax court] Special judges can be appointment by the chief judge, but full disagreement why

a. Regular Judges: Officers - Final Decisions with deference; no direct removalb. Special Judges: inferior Officers to the regular judges

i. No power to make final decisions; APPT/removal by chief judge; c. Court of law [x5] : no appointment process; department is cabinet onlyd. Executive Agency [x4]: No life tenure; not ARTIII; chief is a head

vi. Recess Appointment Power1. Appoints during a congressional recess – last until end of following term

c. Removal Poweri. Executive has always had it even though not in text; questions of how much congress can limit

ii. Broad Grant: congress cannot have a role limiting the power1. Myers [postmaster is removed by the president, statute gives steps through congress]

Congress cannot interfere with the President’s removal poweriii. Functional Justification:

1. Congress can expressly/implicitly qualify removal if plausible justificationa. Judge Like: Congress can shield since we do not want either party to influenceb. Reasoning: cannot be own judge; congress not part of the process; total control of

one case is not central to the executive; no policy power, remove through AGc. Humphrey's Executor [statute gave fixed years, and President cannot remove

FTC commissioner with cause] Congress express insulate officer with for caused. Weiner [persons seeking to obtain damages from WWII, creates a claims tribunal

outside; statute was silent on removal – implied for cause] e. Morrison v. Olson [independent counsel case, finding them inferior officers that

could be appointed by a court of law] CON to limit the removal of inferior officers to “for cause” if you leave power outside reach of congress

2. Cannot create an agency with double insulation from president [PCAOB – two for cause]d. Executive Orders

i. Cannot Trump Statutes: President’s attempt to control agencies1. Reagan EO 12,291 [OIRA review agency actions before they become final - delay]

a. Important limitation: major rules issued by executive branch agenciesi. Does Not Include: Adjudications [due process] Minor Rules

b. Courts stay out of it: not unreasonable; involves allocating resources [Chenay]c. Cost Benefit Analysis: do it; but cannot use it??d. OIRA can require other data to be considered

i. Portland Cement: data must be available to the public2. Reagan EO 12, 498 [agencies must issue agendas of pending and planned rulemakings]

a. Results: DIR has better control of agency; notice to lawyers3. Clinton EO 12,866 [Time Limits except in extraordinary circumstances; transparency

requirements; applies 12,498 to independent agencies through directive]4. Bush 43 : Removes the VP from the his prior role in OIRA; applies to all guidance docs

ii. Ad Hoc Jawboning – at least 18 white house offices jawbone behind close doors

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