Admin Law Spring 2022 FC

Whole or part of an agency statement of general or particular applicability and future effect

Product of adjudication, anything other than a rule including licensing, with specific applicability to a certain party or entity

553(b), 556, 557

553

554, 556, 557

555(e)

rulemaking/legislative, adjudication/judicial, investigations/executive

subject matter exceptions-553(a), certain types of rules-553(b)(A), and good cause-553(b)(B)

Military or foreign affairs or matters concerning agency management and personnel, public property/loans/grants/benefits/contracts

interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice;

Combined Procedural Rule Test (AHA, Air Transport, JEM Broadcasting):
Rule not procedural if:
1) Substantially alters the rights of parties
a) Impact on right cannot be incidental (AHA)
b) Right must be so significant/sufficiently grave (JEM)
2) Encodes a substantive value judgement
a) Likely to substantially alter party behavior
b) Affects primary conduct as defined in enabling statute (Air Transport Dissent)

1) changes method of presentation, not substantive interests
2) Doesn't substantially alter the party's substantive rights

1) Changes method of presentation not substantive interests
2) Doesn't affect substantive matters far too important to be withdrawn from public deliberation

1) Changes method of presentation, not substantive interests
2) Substantive effects not sufficiently grave to warrant rule making
a) Burden on individual outweighed by efficiency interests of agency
*Also discusses "hard look" rules which fall within procedural rules

· Asks court to balance the interest of the public in a rule making proceeding versus the efficiency interest of the agency
o **If the interests are close, notice and comment procedure should be preferred (narrowly construed)

When an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest

Formal rulemaking required only where magic language or equivalent of a "hearing" and "on the record" exist in the statute (Allegheny-Ludlum Steel Corp. and Florida East Coast Railway Co.); hearing can be paper hearing and informal rulemaking will be default

Found in 553(b)-published in the federal register, statement of time/place/nature of rulemaking proceedings, legal authority for proposed rule, terms and substance of proposed rule (remember N&C exceptions)
Notice of proposed rulemaking must "fairly appraise interested persons" of the issues in the rulemaking (United Steelworkers)

Apply Logical Outgrowth Test (Chocolate Manufacturer):
· Materially alters the issues involved in the rulemaking OR
· Substantially departs from the terms of substance of the proposed rule
o *Balances*
§ Inconvenience to agency with rights of regulated entities to notice that there interest were at stake

Oral or written communication not on the record...but shall not include requests for status reports

No, it is prohibited for two reasons:
1) interested parties should know what information an agency is relying on to promulgate rule AND
2) interested party should be able to respond so they can impact the outcome of the rule

Ex parte communications are permissible before notes and comments period has ended. Once notes and comments period has ended, EXPC are implicitly prohibited

1) it frustrates judicial review by not maintaining a record,
2) it creates a serious concern as to the fairness of the process, and
3) inhibits the advocacy process to better inform comments and the rule itself because interested parties can't properly challenge the rule because they don't have access to all the information (Home Box Office)

DPC can prohibit EXPC even during informal rulemaking when it conflicts with a claim to a valuable privilege (Sangamon Valley Television)

Yes, If enabling statute imposes additional requirements for EXPC, Sierra Club

Apply D.C. Federation Test:
1) The content of the pressure upon the secretary is designed to force them to decide factors not made relevant by Congress in the applicable statute
2) The Secretary's determination must be affected by those extraneous consideration so that the agency succumbs to the improper Congressional pressure

Rule of Reason Test (Telecommunications Research and Actions Center-gives us 6 factors, but 4 we focus on to determine if agency delay is reasonable)
1. Whether Congress had provided a timetable (if the answer to this is no, agency delay is likely reasonable because Congress did not give a deadline)
2. Whether delay would affect human health or welfare
3. Whether expediting action would interfere with higher agency priorities
4. What are the nature and extent of interests prejudiced by delay

Arbitrary and capricious-to satisfy this standard, the agency must adequately explain the facts and policies with some evidentiary basis on the record that it relied on during rulemaking by showing a rational connection between facts found and choice made (State Farm)

Step 1-Whether congress has clearly spoken on the issue (text, legislative history, context)
-If Congress has clearly spoken on the precise question at issue, courts can decide right here, if not, move to step 2
Step 2-Determine whether agency's interpretation is reasonable
-Is interpretation based on permissible construction?

Substantial evidence (Consolidated Edison-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion)

Arbitrary and Capricious
(State Farm-"rational connection between the facts found and choice made")
Will be a no for the ageny action under this standard if one the following occurs:
-Non-statutory factors were used by agency
-Entirely failed to consider important aspect of the problem
-Explanation is so counter to evidence OR so implausible it can't result from difference in view OR product of agency expertise

(Chevron-two step analysis)
Step 1-Whether congress has clearly spoken on the issue-meaning has congress spoken directly to question at issue/analyze the language of the statute-the plain meaning from K-Mart and the legislative purpose, history, and context from Dole
· if after the step 1 analysis, we only move to step two if the language is ambiguous;
Step 2-Determine whether agency's interpretation is reasonable (meaning is interpretation based on permissible construction)

Chevron deference (Chevron-two step analysis)
Step 1-Whether congress has clearly spoken on the issue-meaning has congress spoken directly to question at issue/analyze the language of the statute-the plain meaning from K-Mart and the legislative purpose, history, and context from Dole
· if after the step 1 analysis, we only move to step two if the language is ambiguous;
Step 2-Determine whether agency's interpretation is reasonable (meaning is interpretation based on permissible construction)

If magic language of "on the record" is present (City of West Chicago), If we do not have clear language stating congressional intent, something like conduct a public hearing, we would apply Chevron deference (Chemical Waste Management)

Notice inadequate where a case wasn't decided on matters of fact and law asserted because litigants and regulated entities could not have understood the issues at hand (National Labor Relations Board)

Adequate notice for litigants and regulated entities to understand the issue at hand and respond accordingly where all evidence for the old theory was relevant to the new theory, the commission just used a narrower theory, not a different standard (Southwest Sunsites)

To constitute a notice problem under 553(b), the regulated entity has to lack not only knowledge for the claims against it, but that their lack of knowledge prejudiced their ability to mount an adequate defense (knowledge + prejudice) (Companos and Sons)

Yes, under modern approach. No under traditional. § 556(d) only excludes irrelevant, immaterial, or unduly repetitious evidence

Yes, Hearsay can form the sole basis of a decision in some situations in which the hearsay is relatively "reliable, probative, and substantial" (Richardson-doctor's report met that standard, plus petitioner had no right to cross examine)

No, hearsay medical reports that came in after hearing don't provide sufficient notice because no reasonable opportunity to respond to the reports (Wallace)

No, for formal adjudication, ex parte communications are prohibited but not informal

-an ALJ may not consult a person or party on a fact in issue (seem to be able to communicate with someone within the agency on law)
-ALJ may not be responsible to or subject to the supervision of an employee engaged in investigative or prosecuting function for an agency
-Exceptions: initial licenses, validity or application of rates, practices of public utilities and carriers, and agency heads

Initial licenses, validity or application of rates, practices of public utlities and carriers, and agency heads

· Apply the PATCO Factor Test:
o The gravity of the ex parte communication
o Whether the contacts may have influenced the agency's ultimate decision
o Whether party making the improper contacts benefitted from the agency's ultimate decision
o Whether the contents of the communications were unknown to opposing parties
o Who therefore had the opportunity to respond
o Whether the vacation of the agency's decision and remand for new proceedings would serve as a useful purpose
o *Basically, the principal concerns of the court are integrity of the process and fairness of the result*

-Whether the EXPC communications so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstance-Apply the Stone Ex Parte Communication Test
1-Does the employee have a property interest sufficient to trigger their due process right?
2-What is the scope of the protection-consider whether the ex parte communication introduced new or cumulative evidence to the decision maker (if cumulative, already had information so it is ok-also ok if the information is immaterial)
3-Whether the other side knew of the error and had time to respond
4-Was the ex parte communication the type that would lead to unique pressure on the decision maker

DPC requires the government to hold some type of hearing before it deprives an individual of "life, liberty, or property" based on the resolution of disputed factual issues pertaining to that person

1-Does the DPC apply?
2-If we determined a hearing is required under DPC, what amount of process is required?
3-Is there a neutral decisionmaker involved in the process?

1-Was there a state action?
2-Was the potential deprivation made on the basis of individualized decision making?
3-Is the interest in question protected?

1-# of persons affected
2-Extent of impact on each person
3-Factual basis for determining the impact on each person (specific adjudicative facts-Londoner v. general legislative facts-Bi-Metallic)

Where an agency rule applies to one individual or a relatively small number of people, the DPC requires the individual has a hearing (Londoner-small number of people challenging tax assessment particular to each individual and their land was required to have a hearing) whereas if the agency rule applies to a large number of people, DPC does not require that each person have an opportunity to be heard regarding the rule's adoption (Bi-Metallic-No hearing required where across the board assessment was made via an order raising taxes on all taxable property in Denver; the remedy would be political process)

In Londoner, the small group of people were going to have to pay for a street to be paved on each of their properties (involving money and taking part of their land), Bi-Metallic the small increase of taxes across all taxable properties in a county (different because small cost and no taking of land)

a. In Londoner, specific facts about each property was disputed which further suggests a hearing is required because hearing processes are necessary for the accurate resolution of disputes concerning adjudicative facts like who did what, where, when, why, how, and with what motive or intent, as opposed to Bi-Metallic where no specific facts were disputed just broad and general facts related to problems involving all taxpayers of Denver
b. Basically, if there is a dispute about facts that have to be found on individual grounds must be resolved through trial procedure, but a dispute on a question of policy doesn't need to be resolved through trial like procedure

Is it a property interest-1. legitimate claim of entitlement to it as defined by existing rules or understandings stemming from sources such as state law (contracts law, property law, statutory law) i.e. valid employment contract
Is it a liberty interest:
-freedom from bodily restraint or injury
-potential liberty interest a privilege long recognized as essential to the orderly pursuit of happiness by free men
-right to engage in a common calling or profession
-stigma and/or adverse impact on job opportunities

a. Government action must harm a person's reputation AND
b. Subject the individual to some other disability such as the loss of a job or ability to purchase alcohol (Paul)

Test: Matthews v. Eldridge (three part balancing test):
1-private interest that will be affected
2-risk of erroneous deprivation of such interest and value of additional procedures
3-government's interest (efficiency/cost/admininstrability)

1) adjudicator has a pecuniary interest in the outcome, 2) adjudicator was target of criticism or personal abuse from party deciding on, 3) adjudicator has already decided the facts, or 4) where a party did not get to address decision maker

Substantial evidence (Consolidated Edison-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion)

Chevron deference (Chevron-two step analysis)
Step 1-Whether congress has clearly spoken on the issue-meaning has congress spoken directly to question at issue/analyze the language of the statute-the plain meaning from K-Mart and the legislative purpose, history, and context from Dole
· if after the step 1 analysis, we only move to step two if the language is ambiguous;
Step 2-Determine whether agency's interpretation is reasonable (meaning is interpretation based on permissible construction)

Arbitrary and Capricious
(Overton Park-"whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgement")

Skidmore Deference-"Power to Persuade" (-The agency action gets respect to the point that the agency interpretation has the power to persuade the court but will not receive chevron deference. The weight judgement in a particular case will depend upon
· the thoroughness evident in the agency's consideration,
· the validity of the agency's reasoning,
· the agency's consistency with earlier and later pronouncements,
and all those factors which give it power to persuade)

Testimonial (HOW/WHY you testify I don't find you credible-adverse credibility decision) v. derivative inferences (contradictions in testimony, logical gaps, issues with evidence)

When agencies use their discretion to choose adjudication instead of rulemaking it is reviewed with the abuse of discretion standard with a balancing test (Chenery and Bell Aerospace)
-Balances the reasons for agency's decision with the difficulty of fashioning a rule that would apply to many different situations
-Balances the reason for agency's decision with any adverse consequences to agency
-Problem of new liability for reliance on existing rule
-Are there any fines or damages

Not an abuse of discretion when the agency satisfies the following factors from Retail Wholesale Test:
-Case of first impression
-New rule abrupt departure from old rule versus agency filling a void in the rule
-Extent to which defendant relied on old rule
-Burden on defendant
-Statutory interest/legislative interest in applying the new rule despite defendant's reliance on old standard (defendant's reliance on old standard

-A statement that prospectively advises the public the manner in which the agency will use their discretionary power
-It announces that agency intends to adopt a new duty in some future adjudication or rulemaking, but is not binding on public until it goes through rulemaking as a legislative rule

Apply Bowen's binding effects test:
1. Has present effect,
2. Restricts agency decisionmaker's freedom to exercise discretion, AND
3. Agency so characterizes the rule as not determinative, but a factor
*NOTE: If the rule has a present effect, it is NOT a valid policy statement, but a legislative rule*

-A statement issued by an agency to provide public agencies interpretation, construction of statute it administers

we apply the Intent to Exercise Test-combination test from Davilla and American Mining:
1. Agency's characterization
-Agency invoked legislative authority form its mandate
-Agency published in CFR
2. Creates new law, rights, duties- most important
-Is there an adequate basis in the absence of the rule for enforcement action
+If the answer is yes then the rule is more like a non-legislative rule because relying more on a legislative rule to promulgate this
-Does it amend prior legislative rule
+If yes then not an interpretive rule because only legislative rules can amend prior rule

-Agency's characterization
+Given minimum level of deference
-Creates new law, rights, or duties

-Agency invoked legislative authority from its mandate
-Agency published in CFR
-Adequate basis in the absence of the rule for enforcement action, AND
-Amends prior legislative rule

Under Heckler, three elements:
1-Misrepresentation of fact
2-Detrimental reliance
3-Reasonable reliance

Mead mess or other deferential standard (Congressional Intent to Delegate Analysis)
Three options for deference-no deference, Chevron, Skidmore
1) Some/no deference if Congress did not intend to delegate (Brown/Williamson)
2) Chevron deference when acting with the force of law (Force of Law Test from Mead) and uses formal procedures (Christensen- opinion letter-functions like a non-legislative rule-interpretive rule)
3) Chevron deference may apply to agency decision if Barnhart factors suggest Congress so intended it:
-Interstitial nature of legal question
-Relevance of agency's expertise
-Importance of question to administration of statute
-Complexity of the scheme
-Careful consideration agency has given the question over a longer period of time
4) All other decisions should get Skidmore deference

-FORCE OF LAW: when agencies use formal procedures those procedures will have the force of law all else should receive skidmore deference. Mead and Christenson define such formal procedures as:
o Formal rulemaking
o Formal adjudication
o Informal rulemaking

Chevron deference may apply to agency decision if Barnhart factors suggest Congress so intended it:
o Interstitial nature of legal question (is the agency filling gaps in a rule-if yes, more deference; if not, less deference)
o Relevance of agency's expertise (did the agency bring to bear their expertise in rulemaking-if yes, more deference; if not less deference)
o Importance of question to administration of statute (the greater the importance of the agency's view of the statute-the greater importance the agency gives statute, the more deference it gets; the less important, less deference)
o Complexity of the scheme (more complex the scheme, the higher the deference; the less, the lower the deference)
o Careful consideration agency has given the question over a longer period of time (longer the agency has considered the question, the more deference; the shorter the time, less deference)

The agency action gets respect to the point that the agency interpretation has the power to persuade the court but will not receive chevron deference. The weight judgement in a particular case will depend upon
-the thoroughness evident in the agency's consideration,
-the validity of the agency's reasoning,
-the agency's consistency with earlier and later pronouncements,
-and all those factors which give it power to persuade
(i.e. opinion letters, policy statements, agency manuals, and enforcement guidelines)

Mead Mess/Congressional Intent to Delegate Analysis

Congress can delegate its legislative authority to an agency if there is an intelligible principle (Whitman)

To determine if there is an intelligible principle, the court looks to the text of the statute in question (then, we turn to plain meaning, legislative history, and context)
-Here, the important text is requisite to protect public health (from Whitman)
-Generally, courts look at legislative history
-Constitutional because an intelligible principle exist and the agency is doing its function under Article 2 Executive Branch of power because the agency is executing the will of congress

Yes, but if not delegated properly could violate Article III Section 1 and/or Seventh Amendment (preserves the right to a jury trial for common law disputes)

o Military courts
o Territorial courts
o tribunals for adjudicating "public rights"

Judicial power cannot be given to agencies and disputes between two parties should be resolved by Article III UNLESS it falls under the public right exception when there is a dispute between two private persons on a civil claim (Stern)

presentment and bicameralism

1-is there standing
2-jurisdiction (one sentence)
3-plaintiff must have a final agency decision pursuant to 704 (one sentence)
4-plaintiff must have exhausted their administrative remedies (one sentence)
5-Plaintiff must have CoA (one sentence)
6-Plaintiff's case satisfies ripeness (one sentence)
7-SOR

Court lacks the jurisdiction or power to review when 1) Congress explicitly OR implicitly states there is no mechanism for judicial review OR this agency action is a discretionary action that was committed with the agency's discretion by law (Heckler)

1-injury in fact
2-causation
3-redressability

-Injury must be concrete, particularized, AND actual OR imminent-past harm+future harm+future intent to return (Ex. Have to show past injury and future intent to return, not just a want to return but an imminent plan like purchased airline tickets and took off of work, not just someday I would like to see this animal again, *imminence refers to the timing of the injury, not the timing to return)

The injury must be fairly traceable to the government (In class exercise: the argument is the animal rights group would say, to meet statutory requirement, you must prohibit individualized cages, and by not prohibiting such individualized cages, the agency through that regulation is causing the injury)

If the court hears the case and decides in the plaintiff's favor then the outcome will fix the harm done to the plaintiff (In class exercise: argument would be redressability here because likelihood of compliance if agency was mandated to create a new regulation for zoo enclosures)

1-one of the members of the association would have to have standing (injury in fact, causation, redressability)
2-lawsuit relates to the purposes of the organization
3-claim is for declaratory or injunctive relief

New Test: Is there Congressional intent fairly discernable in the statutory scheme that Congress intended to preclude judicial review? (Block)
-
Replaced old test: Is there clear and convincing evidence that Congress intended to preclude judicial review? (Abbott Labs)

If not, the agency action was made pursuant to the agency's discretion and we apply the no law to apply test *SOR would be abuse of discretion* (Test is from Heckler/Overton Park)
-o Under 701(a)(2), agency actions committed to agency discretion creating a presumption that these kinds of decisions (enforcement decision in Heckler) are not reviewable. BUT this test provides us with three factors to determine whether there should be judicial review:
§ Difficult to review because agency's decision involves complicated balancing of multiple factors
§ Doesn't involve individual's liberty or property
§ Judicial second-guessing of matters entrusted to executive

1-Difficult to review because agency's decision involves complicated balancing of multiple factors
2-Doesn't involve individual's liberty or property
3-Judicial second-guessing of matters entrusted to executive

1-Does the potential agency fall within the APA's definition of agency as laid out in Section 551
2-Once we determine the APA applies, does the APA apply to the agency action involved in the problem based on the kind of agency action?
3-Assuming APA applies to part or all of the action. how does it interact with other laws in the problem?