Ad Law Cases

gives right for "any interested person the right to petition for issuance, amendment, or repeals of a rule"

gives court authority to compel agency action "unlawfully withheld or unreasonably delayed"

defines agency action to include failure to act. Applies to what judiciary can review under 701(b)(2)

timing of agency in petition for rule making govered by rule of reason: 1. congress provided timetable 2. economic delays more tolerable than health and welfare ones 3. effect of expediting delayed action on activities of higher/competing priority 4. nature and extent of interests prejudiced by delay 5. impropriety not necessary to find unreasonable delay. Illegal telephone charges refund issue. No action taken for five years. Court only maintained jurisdiction

not regulating motor vehicle admissions. Found to be inappropriate to deny petition for rule making because based decision on incorrect legal assessment of statute. BUT remand for better explanation only

finding that for the purposes of the agency/efficiency, doing an individualized assessment of railroad charges is better. Factual issue not legal one

exception from notice and comment for rules of agency organization, procedure, or practice

1. substantive effect on rights and interests of parties 2. effects sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA, strict "hard look" application rules found to be procedural

applied different test for procedural than JEM, Medicare PRO program not fully covered by regs. Found to not have new requirement for the hospital so procedural

good cause exception to notice and comment

issued as interim final rule but weird because Thomas suggests notice and comment not necessary in specific order

LIMITED due process requirements for no ex parte contacts during informal rule making if "conflicting claims to a valuable privilege", channel allocation

for decision to be overturned based on congressional pressure need 1. pressure designed to force decision maker to decide upon factors not relevant to statute 2. decision must have been affected by those considerations

have to complete environmental impact statement before undertaking action

have to create reg flex analysis if going to have significant econ impact on substantial number of small businesses, orgs, or governments. Need to seriously consider how could do in less burdensome way

have to engage in N&C prior to imposing recording keeping requirements on 10 or more person. Necessary, not duplicative, take into small entities, plain language, use IT to reduce burden. MUST SEND TO OIRA

have to prepare statement assessing effect of regulation that would include "mandate" in costs of over $100 mill annually on state, local, or tribal govs/private sector. Must identify reasonable number of alternatives and why are not sufficient

need to issue guidelines to ensure and maximize the "quality," "objectivity," "utility," and integrity of information disseminated have process where receive corrected information and report yearly about this to OMB.

required to assess cost and benefits of "significant action" controlled by OIRA

any "final disposition...of an agency in a matter other than rule making but including licensing"

required notice for formal adjudication=time, place, and manner of hearing. Legal authority. Matters of facts and law asserted by who is bringing the proceeding. If defendant, usually required to reply w/ issues controverted in fact or law

allows intervention "as far as orderly conduct of public business permits"

gives ALJs the same ability as federal judges in trial without a jury

unclear if ALJs are still protected by Merit Protection System

prohibits agency employee engaged in investigation or prosecution of case from participating/advising ALJ's decision except as witness/counsel

agency head/member not prevent from talking to ALJ like prohibited to some

before ALJ makes recommendation etc. parties have opportunity to submit proposed findings and conclusions with supporting reasons

agencies can decide whether ALJs will decide the case or just merely make recommended decision

allowance to challenge agency's decision for lack of proper procedures

applies only to formal agency action. Have to be based on substantial evidence

when considering substantial evidence, look at both what supports agency and does not

rejection of ALJ's credibility finding because tainted by improper conduct during proceeding

sexual harassment case. No statement or evidence ignored so cannot reject credibility determination

prohibition of ex parte contacts during formal proceedings

ex parte communications will only cause action to be reconsidered if "irrevocably tainted so as to make ultimate judgement of agency unfair, either to innocent party or to the public interest"

arbitrary and capricious standard for review of agency action

have to give "adequate reasons" for your adjudication decisions

injury in fact if "reasonable" fear of water pollution kept from being able to swim/fish

substantial risk that you will be injured means have to take protection actions that raise cost, which constitute an injury

injury not imminently/certainly impending, can be surveilled in other ways besides this legislation

could survive motion to dismiss that they were harmed by the 2 for 1 regulation standard but ultimately too many possibilities to really show harm

not enough to show that animal lovers and may go to see these animals in the future. Need to show future travel plans now

no showing that actions of defendants caused plaintiffs injuries OR that remedy they are asking for would solve that injury

limits juridical review if: 1. statute precludes review 2. agency action is committed to discretion by law

strong presumption against implied statutory preclusion of judicial review, does not matter that statute provides specific process in some cases, "clear and convincing evidence"

not enough for statutory preclusion that Act expressly provided for judicial review of admin orders imposing financial penalties but no other compliance orders

implied preclusion of judicial review found because complex structure that would be ruined if review allowed

small exception for review even if statutorily precluded if agency action is ultra vires. Has to be "plainly" beyond agency's authority

gives the idea of if "there is no law to apply" courts cannot review

lethal injection drugs, FDA. Reasons for unsuitability of judicial review=balancing of factors within agency expertise, non-enforcement generally not harming liberty or property interest. non-enforcement typically not subject to review without more specifications from Congress

employment statute when applied to gay person fired. Found to be so much deference given to agency that the court cannot do anything. BUT maybe constitutional challenge?

spending decisions found unreviewable

need "specific" agency action to challenge. Not just whole program. BLM land withdrawal review program

has to be discrete action that is mandatory for agency to take, not keeping ATVs off of closed land

requires actions to be final before they are reviewable

final agency action= one "by which rights or obligations have been determined or from which legal consequences will flow"

advisory opinions not aimed at that specific actor and relying on different facts are not final agency action

final agency action when decision is denying waiver to specific parties based on their facts and no adequate alternative to judicial review

only going to require exhaustion if statute or agency rule mandates it

example of common law exception to exhaustion being applied. Admin procedures cannot give him what he wants

finality is about agency and its action. Exhaustion is focused on the litigants and theirs

even if issue is purely legal is more factual development would help them answer it, it is not ripe. Not being able to price contracts perfectly is not hardship

harm is too speculative if agency could exercise this power against you but no showing that they will

need to satisfy ripeness requirements in order to get pre-enforcement review

weird language where jurisdiction to hear case found to be "virtually unflagging"

1. classified info 2. internal agency personnel rules/practices 3. information exempted by statute 4. private commercial or trade secret info 5. inter-agency/intra-agency privileged communications(predecisional) 6. personnel etc. which constitute clear unwarranted invasion of privacy 7. info complied for law enforcement purposes 8. info related to reports for or by agencies involved in regulating financial institutions 9. geological info concerning wells

two categories for private commercial info submitted to agency: required and voluntary. For both need to consider the gov and private interest

for voluntarily submitted info, only have to show that it is not customarily made available to the public

if required to submit have to show 1. customarily treated as private 2. Gov has made assurances of confidentiality

FOIA exemption categories do not require gov to keep info secret. But if violates Trade Secrets Act, can get review under APA because legal wrong

limited FACA provision of committee "utilized" by President not to apply to ABA

if someone does not have a vote, they are not a member of a committee even if they participate

finding that this was a FACA. shows it is trap for unwary.

shows how easy it is to work around the Sunshine Act because need least quorum of members and must involve deliberations that determine or result in conduct or disposition of official agency business