Citizens for Responsibility and Ethics in Washington v. Office of Administration (D.C. Cir. 2009)
What is an agency?
FOIA claim against executive-assistance agency.
We use the substantial independent authority test.
On one end we look at the ability to make law and responsibilities to provide things for congress/pres. On the other, we look for agencies who merely assist or advise.
National Petroleum Refiners Ass'n v. FTC (D.C. Cir. 1974)
Why Rulemaking?
Gas octane ratings on pumps.
Rulemaking makes agency action clearer, faster, and simpler. It helps to winnow down the issues for fact-procedures, and makes things more predictable for regulated entities.
Why Rulemaking?
Essentially, rulemaking is more efficient: less litigation, less relitigation, easier enforcement. It's also fairer: clearer notice, less disparate impact, and less inconsistency.
Heckler v. Campbell (J. Powell, 1983)
Why Rulemaking?
The SoHHS wants to use pre-published vocational guidelines to determined Disability Benefit Eligibility.
Even though the enabling statute imagines full hearings and individual determinations, the Agency is free to use rulemaking to narrow down the issues for litigation. The Claimants still have ample opportunity to present their side of the story.
Determining what jobs are available to whom is a 'general factual issue' determinable through rulemaking.
United States v. Florida East Coast Ry. Co. (J. Rehnquist, 1973)
APA Rulemaking
The ICC is supposed to set per-diem rates for railcars, but they're doing a terrible job.
Section 553 is required when a statute requires a hearing before a rule is promulgated. Section 556-7 formal rulemaking is ONLY required for statute which require that a hearing be, "on the record after opportunity for an agency hearing." (essentially never)
The Evolution of Informal Rulemaking
The court can't superimpose its own beliefs about the correct procedure to be applied in rulemakings because of it's own "notions of which procedures are 'best' or most likely to further some vague, undefined public good."
The Evolution of Informal Rulemaking: The Notice Element
Claim is that the Defendant failed to provide adequate notice for two rules it promulgated after a rulemaking, because the idea of these rules never came up and the plaintiff never had a chance to provide evidence etc.
Notice MUST COME from the Agency: irrelevant if the public had spoken to the issue.
We should apply the LOGICAL OUTGROWTH test. Here, the implemented rules are not really an outgrowth of the NoPR, and therefore, they must be set-aside and the rulemaking process restarted.
American Radio Relay League, Inc. v. FCC (D.C. Cir. 2008) (580)
The Evolution of Informal Rulemaking: The Notice Element
The hobbyists sue two communications orders for being deficient re: notice, because the studies upon which the rules relied for their justification were heavily redacted.
Studies that are informing an agency's decision- that the agency relies on- must be published during rulemaking to afford fair notice under the APA. (this is Portland Cement: that notice must provide the information that the agenct actually relied on) BUT: if redacted, must show ACTUAL PREJUDICE.
Not a YANKEE issue because we are looking at the APA's mandate of notice! (but see Kavanaugh's dissent: Yankee can't live with portland cement)
The Evolution of Informal Rulemaking: The 'Concise' Statement of Basis and Purpose
Plaintiffs allege that, while they violated rules re: the smoking of whitefish, they had to in order to make their product. They allege that there was no adequate statement of basis and purpose to support the new rules.
When looking at Statements of Basis and Purpose, we are looking for VENTILATION. Here, the gov't received opinions and suggestions about the putative alternatives that would not have grave effects. They NEVER MENTIONED those recommendations.
To make a whole business not feasible and not mention why in your basis and purpose, that's a step too far.
The Evolution of Informal Rulemaking: Ex-Parte Comms.
The Agency was participating in a rulemaking involving major industry corps. Apparently they met with those 'big players' in private.
If private conversations are part of the reason that the agency decided, then the procedures have been 'reduced to a sham'. Once rulemaking actually starts, the Agency Representatives should know that they can't speak to anyone from any party.
J. MacKinnon Dissent:
The rule here is just about a small number of parties competing over a very valuable commodity, so it's appropriate to ban ex-parte communication. Would NOT ban everywhere, though.
Action for Children's Television v. FCC (D.C. Cir. 1977) (598)
The Evolution of Informal Rulemaking: Ex-Parte Comms.
Held that Justice MacKinnon was really right in the HBO case: Ex-parte is only a major issue with "the resolution of conflicting claims to a valuable privilege." But for ordinary rulemaking, ex-parte communication is OK.
Sierra Club v. Costle (D.C. Cir. 1981) (603)
The Evolution of Informal Rulemaking: Ex-Parte Comms.
The regulated entity is objecting to the agency meeting with many political actors: the president and congress mostly.
Per Action for Children's Television, we can't ban post-comment meetings with regulated entities unless the HBO exception (this isn't). We can't really force docketing because of Yankee concerns. We CAN do is require a solid concise statement basis and purpose. If these ex-parte meetings don't make it so that the SBP is inadequate, then they don't need any kind of docketing etc at all. When congress is focusing their comments on the actual substance of the rule, ex-parte is OK.
Association of National Advertisers v. FTC (D.C. Cir. 1979) (613)
The Evolution of Informal Rulemaking: Impermissible Bias
R.E. is complaining that they are deprived of a fair rulemaking because agency participant is prejudiced against them.
"An agency member may be disqualified from such a proceeding only when there is a clear and convincing showing that he has an unalterably closed mind on matters critical to the disposition of the rulemaking." Note difference between rulemaking and adjudication standards.
Rulemaking necessarily IS about pre-determined ideas, that's why there's an NoPR in the first place: identification of an issue and need for a solution with some ideas floated.
J. MacKinnon Dissent:
Even under the crazy strict test, the man in question should be disqualified. Too much 'judicial v. legislative.' It shouldn't be that even evidence of bias + prejudice still needs to overcome fence that is 'horse high, pig tight and bull strong'. We compare congressmen and admins. Not fair: congress-people elected, limited in term, and far more multiple, with all the legislative protection of the constitution.
Subject Matter Exception to Rulemaking Proceedings (624)
Exemptions from APA Rulemaking Procedures: [redacted]
(1) Military or foreign affairs functions (generally accepted, it's fine)
(2) Matter relating to agency management or personnel, or to public property, loans, grants, benefits or contracts.
Mack Trucks, Inc. v. Environmental Protection Agency (D.C. Cir. 2012) (626)
Exemptions from APA Rulemaking Procedures: Good Cause
Agency issues an IFR (interim final rule) allowing a specific R.E. to acquire emissions credits in order to avoid non-compliance prosecution under the Clean-air act, even though the R.E. had years to become complaint before the rule went into effect.
Good cause = acceptable when notice and comment are 'Impracticable, unnecessary or contrary to the public interest.' Good cause is for emergency situations. Note that this is not unnecessary 'just because changing numbers', not impractical because there would be damage to a corporation and they need to save it, and certainly not 'against public interest' because the public interest wouldn't be harmed. (note the public interest test is if notice itself would HARM public)
United States v. Johnson (5th Cir. 2011) (633)
Exemptions from APA Rulemaking Procedures: Good Cause (APA 553(b)(3)(B))
Plaintiff challenges agency action retroactively making a sex-offender required to register for a past offense.
The Agency did NOT have good cause to exempt from informal rulemaking. Heightened concern re: criminal imposition of rules. But: HARMLESS ERROR RULE: we must show if the lack of notice and comment prejudiced this particular plaintiff. Absence of prejudice must be CLEAR before harmless error can be held.
The interim rule publication was very specific, covered the arguments that this plaintiff wanted to make, and, on subsequent related rulemakings, the plaintiff declined to get involved.
Mendoza v. Perez (D.C. Cir. 2014) (643)
Exemptions from APA Rulemaking Procedures: Procedural Rule
Visa program lets certain employers hire undocumented people, if they are working jobs that Americans don't want. The agency released a 'TEGL' (training and employment guidance letter) which makes a profession eligible to undocumented employees, and plaintiffs are displaced from their jobs, argue that the TEGL are rulemaking.
Procedural rules are for internal organization and 'cannot be applied where the agency action trenches on substantial private rights and interests.' We are looking for if the rule EFFECTS A STUBSTANTIVE CHANGE IN LAW OR EXISTING POLICY.
American Mining Congress v. Mine Safety & Health Administration (D.C. Cir. 1993) (649)
Exemptions from APA Rulemaking Procedures: Interpretive R.
Rule says that 'diagnoses' must be reported. A letter is sent out that defines what a diagnosis will mean per the rule.
Interpretive rules = those to advise the public of what the agency thinks the statute, NOT INTENT TO EXERCISE LEGISLATIVE POWER. (We all agree that's not clear). Example cases:
First, where without the 'interp rule' there would be no basis for enforcement, it's a substantive rule.
Second, if the rule is published in the CFR it's probably substantive (not this one kind died, is now a tiny kernel of evidence).
Third: explicit invocation of legislative power.
Fourth, if a second rule repudiates or is irreconcilable with a legislative rule, the second rule must itself be legislative.
Pacific Gas & Electric Co. v. Federal Power Commission (D.C. Cir. 1974) (656)
Exemptions from APA Rulemaking Procedures: Policy Statement
Agency advises companies as to how they intend to rule on upcoming inevitable breaches by R.E.'s -> they suggest that one course of action is more favorable than another, but disclaim any conclusive guarantee.
A suitable statement of policy is like a 'press release' it presages future actually binding rules. When an agency is saying, 'we will fully flesh out the validity of this statement in an adjudication or later rulemaking' that's a policy statement. Policy statement, of course, less deference if challenged/relied upon in court.
WE LOOK FOR BINDING EFFECT.
The 'kicker' language from the statement: 'not finally determinative of the rights and duties of a given pipeline, its customers or ultimate consumers; it expressly envisions further proceedings.'
APA 553(b)(3)(A)
Except when notice or hearing is required by statute, this subsection does not apply—
(_)to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice
APA 553(b)(3)(B)
Except when notice or hearing is required by statute, this subsection does not apply—
(_) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
Community Nutrition Institute v. Young (D.C. Cir. 1987) (662)
Exemptions from APA Rulemaking Procedures: Policy Statement
Agency issues a statement, without rulemaking procedures, claiming that certain levels of toxins in food are 'unlawful'.
These are not policy statements. They have present binding effect, 'which food will be determined adulterated, an action may prohibit any detectable amount of substance.' Plus, the statement requires R.E.'s to seek EXCEPTIONS to the action levels. This cannot be consonant with PG&E.
It's not COMPLETELY determinative. A prosecution could not completely rely on the action level. But, there's really no way the Agency could prosecute someone above the level and win.
The 'Practically Binding Test' (665)
Exceptions from APA Rulemaking Procedures: Policy Statement
Courts get frustrated with agencies making very vague rules, then issuing exempt 'policy statements' to have really discretionary and basically binding effects on R.E.'s who don't get to be involved in the process: in comes this test.
"Whether the rule is applied by the agency in a way that indicates it is binding."
SEC v. Chenery Corp. ("Chenery II") (J. Murphy, 1947) (534)
Making 'Rules' Through Adjudication:
The agency is dealing with an R.E. who is acting against its wishes, but not really breaking any rules which on the books. The agency basically throws up its hands and says, 'you can't because we say so, even with no rule.'
The administration is free to create and enforce a rule in the first instance during an adjudication, in cases like these, where unforeseen exigencies would otherwise force it to act against the intent of the statute.
Note that is the creation of a rule-by-adjudication and then retroactive application.
J. Jackson Dissent:
'Law as a guide to conduct is reduced to the level of mere futility if it is unknown and unknowable'
Bowen v. Georgetown University Hospital (J. Kennedy, 1988) (546)
Making 'Rules' Through Adjudication: Retroactive Rules?
The agency tries to make a rule that would retroactively affect R.E.'s as if a prior rule had never been passed.
Re: RULEMAKING, "retroactivity is not favored in the law" and "courts should be reluctant to find such [retroactive] authority absent an express statutory grant."
Scalia Concurrence: The APA says rule = future effect. Adjudication = determination of what law was. Rulemaking = determination of what the law will be.
Motor Vehicle Manufacturers Ass'n of U.S., Inc. v. State Farm Mutual Auto. Insurance Co. (J. White, 1983) (676)
Rulemaking: Arbitrary and Capricious ("Hard Look") Review
There's a whole saga involving seatbelts- out, back in, out, etc. Prompted by political changes inside the Agency.
First: is creating a new law different from ridding the Agency of an old one? No: the direction of the movement is not relevant (but denial of petition to make rule is greater deference). The agency failed to consider modifying rule instead of wholesale rescission. No Yankee problem, we simply require full consideration per the APA.
Agencies don't need evidence to support their decisions, but they do need to adequately describe their reasoning. Must apply a reasoned analysis based on what they know- even if no evidence is determinative. Must examine the relevant data and articulate a satisfactory explanation for its action.
Rehnquist Dissent: Agree re: part 1 and airbags. Not agreed re: part II and automatic belts. The agency showed some evidence and relied on it, that's enough. Just rational connection, facts -> evidence.
APA 706(2)(A)
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(__)hold unlawful and set aside agency action, findings, and conclusions found to be—
(__)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
FCC v. Fox Television Stations, Inc. (J. Scalia, 2009) (687)
Rulemaking: Arbitrary and Capricious ("Hard Look") Review
Agency changes its mind and bans language formerly permitted. R.E. challenges re: A+C decision. There is NO evidence that an agency change in course is subjected to anything more than ordinary hard look. A court should not substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.
J. Breyer Dissenting:
The A+C standard isn't satisfied by 'it was a political decision' or 'we have a new policy preference.' To explain a change requires more than just explaining why new is OK, must explain why the change. (This seems like B.S., but remember the road example!) Here that change will harm certain parties, and maybe create formerly sleeping const. issues. They should explain why for each.
Rulemaking: Ossification and Responses:
A new rulemaking proceeding which involved a meeting by invited folks, unanimous agreement on a proposed rule, then notice and comment.
Massive failure.
Londoner v. Denver (J. Moody, 1908) (347)
Adjudication: When Due Process Applies: Adjudication v. Rulemaking
The city made improvements to a property and specifically debited certain tax accounts related to the abutting one property. Landowner unable to have hearing or comment.
In this case, because the law was narrow and specific to one/a few people, they had due process rights, including a right to some kind of argument and fact presentation.
Bi-Metallic Investment Co. v. State Board of Equalization (J. Holmes, 1915) (348)
Adjudication: When Due Process Applies: Adjudication v. Rulemaking
All prop in city has 40% increase in taxes. Petitioners sue to stay the increase and request a hearing re: due process and Londoner.
"When a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. . . Londoner v. Denver. . . [involved] a relatively small number of people. . . who were exceptionally affected. . . upon individual grounds."
Goldberg v. Kelly (J. Brennan, 1970) (355)
Adjudication: When Due Process Applies: Life Liberty or Property
No hearing for a welfare recipient before termination. Due process?
Yes. "The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.'" When welfare is discontinued, only a pre-termination evidentiary hearing provides the requisite due process. 'brutal need'. Must have an opportunity, also, to cross examine, and decisionmaker should state grounds.
J. Black, DISSENT:
This makes welfare recipients way harder to remove, and we assess that at least sometimes they need to be removed. This really harms people who need welfare but don't have now: the state will be way, way more careful about adding and removing folks from the rolls.
Board of Regents of State Colleges v. Roth (J. Stewart, 1972) (368)
Adjudication: When Due Process Applies: Life Liberty or Property
Professor hired for one year: no insinuation of continued employment after.
". . . all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprive of liberty when he simply is not rehired in one job but remains free as before to seek another."
A Property interest: more than an abstract need or desire for a thing, more than a unilateral expectation of it. Instead, a legitimate claim of entitlement to it. It's to protect those claims upon which people rely in their daily lives.
Liberty: to contract, engage in common occupations of life, acquire useful knowledge, marry, establish home and raise kids, to worship, generally enjoy privileges long recognized. (Note, the case specifically says, 'not just bodily autonomy' C.f. Kerry v. Din).
J. Douglas Dissent: This was a firing for speaking about racial issues. There IS a freedom of speech, and that speech is a property and liberty right subject to due process protection.
J. Marshall Dissent: Would go further to define liberty and property. Everyone who applies to a gov't job is entitled to it unless the gov't can prove that they have some reason to deny. Gov't must prove due process in selecting some and denying others.
Perry v. Sindermann (J. Stewart, 1972) (374)
Adjudication: When Due Process Applies: Life Liberty or Property
Professor fired for involvement in protest after four successive one-year contracts at state school. No 'tenure' program at the school, but handbook said everyone should feel like they have tenure with good behavior.
Does no tenure mean no DPC rights? Not in this case, because it's possible he relied on the handbook, which COULD have created a 'mutually explicit understanding' of future employment.
Paul v. Davis (J. Rehnquist, 1976) (378)
Adjudication: When Due Process Applies: Life Liberty or Property
Cops posted a notice that made it seem like the Plaintiff was a shoplifter. He requested a hearing and got none. Was his liberty right sufficiently diminished by his defamation to enable him to due process protections?
NO: Not every defamation impinges on a liberty interest. Instead, we need something else: revocation of ability to purchase liquor, or to gain employment.
The Stigma-Plus Test
Kerry v. Din (J. Scalia, 2015) (383)
Adjudication: When Due Process Applies: Life Liberty or Property
PLURALITY:
An immigrant wants to be able to have her husband move with her to the U.S. She asserts that procedural DPC rights were violated when she was denied a hearing.
Per [redacted]: property = what blackstone said about it in 1769 (free use enjoyment and disposal of acquisitions); liberty = power of LOCOMOTION, changing situation, moving to another place without PRISON. NO property or liberty right here.
But Loving said liberty right in marriage! They can still be married, just not in the same place together.
J. Kennedy Concurrence:
Don't dally in DPC protections, assume she had them, this was enough process. A facially legitimate and bona-fide explanation is enough, especially re: Taliban, as here, where national security comes into play.
J. Breyer Dissent:
Plurality relies on a dead rights v. privilege idea of PDP. This is a protected right, these rights are way more ethereal than this one in our case-law.
Some Kind of Hearing (J. Friendly)
Adjudication: When Due Process Applies: What Process is Due?
The consistent common ground is that a hearing is due before a due-process protected right is taken away. (Is there a point beneath which no hearing at all is due even when a protected right is taken? ('I purchased two under-wears from the government and was overcharged a few dollars).
What kind of hearing? Confrontation right? Goldberg went too far and it's no longer clear just what kind of a hearing is required.
Mathews v. Eldridge (J. Powell, 1976)
Adjudication: When Due Process Applies: What Process is Due?
A disability claimant lost his benefits without a hearing of the type afforded in Goldberg.
It was wrong to think that Goldberg protection applied to disability recipients as it does to welfare recipients. But yes, some kind of hearing is guaranteed.
How do we decide what process is due? The TEST:
(1) The private interest affected; (2) the odds that new procedure will reduce risk of erroneous deprivation; (3) governmental interest (cost of additional procedure).
The Bitter With the Sweet Model (J. Rehnquist's Baby)
Adjudication: When Due Process Applies: What Process is Due?
Rehnquist's idea was that when you are deprived of a right, if the right came with limitations when you received it, it defined the process when you had the right taken from you. The bitter with the sweet seemed like it might have some traction for a bit, but has died out.
Cleveland Board of Education v. Loudermill (J. White, 1985)
Adjudication: When Due Process Applies: What Process is Due?
Plaintiff fired for (apparently accidentally) wrongly reporting that he had not been convicted of a felony on his application to a state school position.
The bitter with the sweet model was loudly and clearly denounced: it 'misconceives' the constitutional guarantee. A gov't employee facing termination is entitled to a pre-termination hearing. But such hearing can be very brief, an 'initial check'.
The 'ROOT' for due process is that a person has the right to process before he is deprived of any significant property interest.
J. Rehnquist DISSENT:
The state limited the right with conferral, we should respect that.
Dominion Energy Brayton Point, LLC v. Johnson (1st Cir. 2006)
Adjudication: Statutes as Sources of Procedural Requirements:
This case is evaluating Seacoast: Seacoast = when a statute says, 'public hearing' it really means formal adjudication per APA 554, 556, and 557. But this agency doesn't provide a formal hearing with the term 'public hearing' in its statute.
Held: Chevron means that the agency is able to come to any reasonable conclusion about the statute. (see brand-x, no sign that the prior holding was re: the statute being unambiguous).
Congress' use of 'opportunity for public hearing' does not unambiguously mean formal judicial procedure.
Citizens to Preserve Overton Park, Inc. v. Volpe (J. Marshall, 1971)
Adjudication: Statutes as Sources of Procedural Requirements: Informal Adjudication:
Did the secretary violate statutory requirements by not making formal findings? No, but the litigation affidavits were insufficient to justify his decision. Some additional explanation is required.
Adjudication: Statutes as Sources of Procedural Requirements: Informal Adjudication:
The pension 'snip-snap' case. Is there tension between Overton Park and Vermont Yankee? No. Vermont means no additional procedures. Overton means that 'hard look' review requires an agency be able to provide its rationale from the time of the decision.
Adjudication: Permissible Decisionmaking Structures and Bias: Judicial Models: Split-Enforcement.
Wisconsin has a statute that allows a board of medical examiners to both investigate and adjudicate claims against doctors who violate professional standards.
Generally, one board investigating and adjudicating is not a constitutional violation. But this isn't concrete. Judges issue warrants and preside at preliminary hearings where they decide if a defendant should be held. Without more, no problem. But more could come.
Nash v. Bowen (2d. Cir. 1989) (452)
Adjudication: Permissible Decisionmaking Structures and Bias: Judicial Models v. Bureaucratic Models
The Social Security Admin. has been trying to curtail issues with their ALJ's, resulting in crazy delays, inefficiency,
Three programs at issue: peer review program, production goal program, and quality assurance system. Peer review is a review of 'dead cases' that are basically policy-exam fake appeals. They're OK. The Production Goal is OK so long as it's definitively JUST a goal. The Quality Assurance program is based on increasing quality.
It's OK to seek to increase quality and efficiency. But to seek to specifically reduce reversal rates is NOT ok. That's because reversal on appeal would only happen with denials - so it could indirectly encourage a specific outcome.
Schweiker v. McClure (J. Powell, 1982) (465)
Adjudication: Permissible Decisionmaking Structures and Bias: Public v. Private Adjudication
Part B of Medicare is administered by private contractors without a chance to appeal to a governmental organization. Constitutional concerns?
Due process demands impartiality. There's no reason for the carrier to care about the outcome of the cases, because of how it's set up. The burden rests on the party making the assertion.
Due process does not require appeal to a governmental body, when, as in this case, the appeals personnel are similarly capable when compared to the gov't body. (Second Mathews factor).
Universal Camera Corp. v. NLRB (J. Frankfurter, 1951) (473)
Adjudication: Judicial Review of Agency Adjudication: Judicial Review of Agency Fact-Finding
Agency fired an employee, and a dispute unfolded over what he was terminated for. The Hearing examiner found a justifiable reason for the termination, but the review board held otherwise. The statute= 'findings of facts = conclusive if supported by evidence.'
Substantial evidence = more than a mere scintilla, enough to survive a countervailing summary judgment motion. If it was ever OK to look only at supporting evidence, the APA bans that practice. Therefore, we must look at the overturned hearing examiner's testimony in evaluating the statutory 'substantial evidence' standard.
Adjudication: Judicial Review of Agency Adjudication: Judicial Review of Agency Fact-Finding
Medical documentary evidence is admittedly hearsay, and losing SS claimant sues.
Is hearsay substantial evidence? In this case, it is. Context specific. Five known physicians that wouldn't care to risk it all for the state. Documentary evidence was based on personal exam of the plaintiff. The Plaintiff got so many exams, must indicate some level of fairness innate to the system. The exams were all consistent. Did not take advantage of subpoena power. Medical reports specifically are susceptible to documentary-ization. The burden of denying hearsay would make agency struggle so hard.
ADAPSO v. Board of Governors of the Federal Reserve System (J. Scalia (D.D. cir.) 1984) (498)
Adjudication: Judicial Review of Agency Adjudication: Judicial Review of Agency informal Fact-Finding
706(2)(E) applies to formal rulemaking-> Substantial evidence.
706(2)(A) applies to informal rulemaking -> Arbitrary and capricious.
What is the difference in quantum between the standards? In application of the standards?
Each requires exactly the same factual support. The difference is that substantial evidence is based only on the closed record. Conversely, arb. and capricious review considers everything, prior decisions, etc.
*note: that conception of A-C is in tension with the fact that agencies have to publish and incorporate into the record everything they rely on. However, that requirement is based on the Portland Cement requirement that parties notice the things actually relied on, not the APA (by way of 553(c)).
Skidmore v. Swift & Co. (J. Jackson, 1944) (720)
Statutory Interpretation: The Pre-Chevron Approach
How defer to an administrators amicus opinion about the administration of his rules?
Based upon the factors in the eponymous test: (1) Thoroughness in its consideration; (2) validity of reasoning; (3) consistency with other pronouncements; and (4) all those other factors which give it power to persuade.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (J. Stevens, 1984) (729)
Statutory Interpretation: The Chevron Revolution:
Stationary source? Not clear from statute. Ambiguity = delegation of authority to agency to elucidate.
Here's how analyze under the original eponymous test: (1) Has Congress spoken to the point at issue? (2) Is the agency interpretation reasonable/permissible?
"When a challenge to an agency construction of a statutory provision fairly conceptualized, really centers on the wisdom of the agency's policy rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail."
Yellow Transportation, Inc. v. Michigan (J. O'Connor, 2002) (747)
Statutory Interpretation: The Chevron Revolution: Step One: How clear is clear?
There's an old transportation law that's being changed, because of the old-complexity, a lot of states had mutual agreements with other states that made registering a vehicle in one state waive the cost of registering in others. Now that we go to a single fee, how handle this?
The statute is ambiguous. The defendant's reasoning is reasonable, but not determinative. Unless determinative, not relevant under Chevron.
AT&T Corp. v. Iowa Utilities Board (J. Scalia, 1999) (807)
Statutory Interpretation: The Chevron Revolution: Step Two: What's left?
If congress doesn't give a conclusive meaning to the first part of the statute, then in step two, the court must, 'enfoce the clear limits that the [act] contains.' If a statute says, 'limit based on these necessary + Impair,' some limitation must follow, or the standards are pointless.
J. Souter Dissent: The standards could have been considered. Ordinary meaning of necessary and impair doesn't mean 'absolutely must have', and maybe that's what the agency thought.
United States v. Mead Corp. (J. Souter, 2001) (853)
Statutory Interpretation: The Chevron Revolution: The Mead Counter-revolution:
Agency pronouncements that aren't made with the force of law are not entitled to Chevron and instead undergo Mead analysis. How know if legal force? (1) Formal Process; (2) Precedentially binding; (3) Indication that congress intended to delegate such power.
The customs 'classification rulings' are like policy statements/ agency manuals/ enforcement guidelines. They get Skidmore. Beyond the Chevron pale.
J. Scalia, Dissenting
There's no good grounds for this test, because it's so loosey-goosey. It's going to confuse and create litigation like mad. Especially because even when determined, Skidmore itself is no help. This will lead to ossification: agencies have to observe court-made law on Mead issues: any case-by-case adjudication favoring agency is now bound forever.
National Cable & Telecomm. Ass'n v. Brand X Internet Services (J. Thomas, 2005) (874)
Statutory Interpretation: The Chevron Revolution: Chevron and Stare-Decisis
Stare does not control ordinary Step One analysis, unless the opinion being cited specifically declared that the statute was 'unambiguous'. This is not an agency overruling a court: it's a court making an interim speculative judgment about an interp. that the agency can then not accord with later: see federal court ruling later differed with by the state.
J. Stevens Concurrence
Agree with above, but above doesn't cover supreme court decisions.
J. Breyer Concurrence
Bone to pick with Scalia, not correct to say Mead requires any kind of formal process for Chevron deference.
J. Scalia Dissent
Court continues to 'improv' on administrative law. This is an unconstitutional ruling. Major appealability concerns (true) requirements for dictum. No need to go this far, either could have just overturned the circuit decision on point (true?)
Statutory Interpretation: Agency Interpretations of Agency Regulations
Eponymous deference means that agencies interpretations of their own rules are controlling, unless 'plainly erroneous or inconsistent with the regulation.' We need more than a 'post-hoc rationalization,' but without evidence that the ruling isn't from fair and considered judgment, it's OK. "A rule requiring the Secretary to construe his own regulations narrowly would make little sense, because he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute."
Statutory Interpretation: Agency Interpretations of Agency Regulations
Plurality:
Auer is alive, but sometimes appropriate and sometimes not. The real idea is that, if you don't know, ask the writer + we prefer agencies rule they know better. (lots of justifications for Auer)
Majority:
Limit Auer in some specific ways. Not when: (1) statute not actually ambiguous; (must check all traditional tools) (2) Reading must actually be reasonably within the bounds of ambiguity; (3) Must still consider if 'authoritative' or 'official position'; (Mead-esque) (made by agency, using tools of authoritative policymaking); (4) must implicate expertise; (5) must reflect fair and considered judgment (not off the cuff litigation position, or an ex-post justification).
Stare cuts against overruling Auer outright. Congress can change the law here (dissent contests).
J. Roberts Concurrence
Kagan and Gorsuch closer than they think. Note not touching anything outside of agency-agency
J. Gorsuch Concurrence
Auer is destroyed anyways. Why not just use Skidmore? Courts should be liberated to rule of their own conception. We should be allowed to determine 'best and fairest' reading and 'say what the law is.'
J. Kavanaugh Concurrence
True that Auer should die. But under the Maj's test, applying the rules of statutory construction will reach a best conclusion anyways. Agency-agency only, no Chevron here.
Reviewability: Preclusion: Express Preclusion:
Objector wants vet. benefits. Statute = 'decisions of Admin. on law or fact are final.'
The fact conclusions specific to this plaintiff are not reviewable. The constitutional questions are: those don't go to the issue between plaintiff and admin, but between congress and the law. We can review that over the preclusion.
Block v. Community Nutrition Institute (J. O'Connor, 1984) (948)
Reviewability: Preclusion: Implied Preclusion:
Plaintiff sues, not mentioned by the statute, thereby claims not precluded. The omission of mention of the plaintiff's class is evidence that he's precluded, because of the detailed procedure for everyone else. The practical effects of letting him sue would be very bad. So we don't allow, in this case.
We resolve doubts towards allowing review, but not in a situation like this.
Citizens to Preserve Overton Park, Inc. v. Volpe (J. Marshall, 1971) (960)
Reviewability: Committed to Agency Discretion:
Committed to discretion = no law to apply. Here we can judge if there were feasible alternatives: Congress wanted the administrator to 'think twice' about building on parkland, and that's enough.
Webster v. Doe (J. Rehnquist, 1988) (970)
Reviewability: Committed to Agency Discretion:
Statute: Can terminate employees when 'deemed necessary.' Can't review that under 706(2)(a): There's no law to apply unless we, what, cross-examine the director? The deem kills our chance to review.
However, constitutional claims can stay in court. 'Must be clear to preclude constitutional claims' see Robison.
J. Scalia Dissenting
'No law to Review' is not the entire test. Also includes: political question, sovereign immunity and prudential limitations. We should look for 'disruptive practical consequences' etc. We can review the firing: what about evidence of nepotism or simple vindictiveness?
Lincoln v. Vigil (J. Souter, 1993) (977)
Reviewability: Committed to Agency Discretion:
Lump sum without direction = committed to agency discretion. Note that lump sum allocation = like prosecution decision. Fact specific, sensitive to policy. Could obviously change if expenditure outside statutory aims.
Note, severing out due process claim, yet again.
Reviewability: Committed to Agency Discretion:
FDA has to enforce known violations under its statute? (No!) Refusal to enforce: fact and policy specific. We lack agency and political understanding. An agency can't realistically investigate everything.
Non-enforcement = presumption of immunity. Rebuttable by substance in statute. Violation here creates 'liability to be proceeded against' certainly not a sign of mandatory review. 'Shall be imprisoned or fined for violation' that's just normal language we can accept. "nothing herein should require prosecution of minor infractions." Negative implication does not hold up. (statute is re: already investigated and considered, not pre-investigation)
American Horse Protection Ass'n, Inc. v. Lyng (D.C. Cir., 1987)
Reviewability: Committed to Agency Discretion:
To avoid hosting a rulemaking session is much more reviewable. Why? legal issues instead of fact ones. Must provide reasons for declining. Much rarer circumstance less practical damage. But review is to overturn 'only in the rarest and most compelling circumstances.'
Reviewability: The Timing of Judicial Review: Finality:
To avoid harming endangered species, the Fish and Wildlife Service must issue a biological opinion to any agency which is taking action which might harm the environment. Found that the biological opinion is final.
Two Conditions to Finality: (1) Must make the consummation of agency decision-making process (not tentative or interlocutory); (2) Must be one by which rights or obligations have been determined; one from which legal consequences will flow.
United States Army Corps. of Engineers v. Hawkes Co., Inc. (C.J. Roberts, 2016) (1013)
Reviewability: The Timing of Judicial Review: Finality:
Clean water 'waters' jurisdictional determination reviewed.
Affirmed 'Bennett Conditions'. Opportunity to revise does not defeat condition #1. Formal finding of fact binding on other agencies = sufficiently binding for #2. (note there is an PRELIMINARY and APPROVED Determination, and this is APPROVED).
Agency can't argue, 'break the statute and see what happens before review' if the results are going to be very expensive/criminal, etc. Same with specialty permitting, etc. (Note that a PERMIT doesn't change the underlying determination, so not relevant.)
Abbott Laboratories v. Gardner (J. Harlan, 1967) (1020)
Reviewability: The Timing of Judicial Review: Ripeness:
A bunch of things go into the Ripeness review: we want to review decisions that are formalized and have concrete effects. We look half at fitness of review and half at hardship if withheld. Here the penalties if violating rule allow a pre-enforcement dispute to be ripe.
Purely legal questions more likely to be ripe. We check for 'direct and immediate' impact. "where the legal issue presented is fit for judicial resolution, where a regulation requires an immediate and significant change in plaintiff's conduct. . . with serious penalties. . . access to the courts. . . must be permitted, absent a statutory bar."
'But this is a health issue, what do we do to protect health during litigation?' No one sought a stay! And it can enforce during litigation.
Contra: CNI v. Block re: expressio unius and judicial review: Must examine the entire statute, accord Block.
McCarthy v. Madigan (J. Blackmun, 1992) (1054)
Reviewability: The Timing of Judicial Review: Duty to Exhaust:
Internal prison review system: exhaustion not required.
Exhaustion: protects administrative authority, promotes judicial efficiency. But here, result sought not offered, and process to reach result very dangerous to claim without much gain, so exhaustion not required.
J. Rehnquist: Concurrence:
There's a carve-out clause for the timing issue, so that should not defeat remedy of exhaustion. However, agreed that because the administrative procedure doesn't result in the reward sought, no exhaustion necessary.
Association of Data Processing Service Organizations v. Camp (J. Douglas, 1970) (1079)
Reviewability: Standing:
Data processing by banks authorized.
First part: is it a case or controversy? Second part: Zone of interest? No need for the party seeking standing to be mentioned: the point of the statute has to be to protect/affect them, and that's the case here.
Limiting competition may mean a competitor has standing.
Reviewability: Standing: Constitutional Standing:
Constitutional Standing Test: (1) Injury in fact (concrete and particularized interest, and actual or imminent harm); (2) Causal connection between the injury and the conduct; (3) Redressability: likely and no speculative that can be redressed.
Standing easy when plaintiff themselves is an object of agency action. Much more required when someone else is being regulated. Standing is not: 'an ingenious academic exercise in the conceivable'. Congress CANNOT grant standing under Article 3.
Procedural failure + Citizen suits do not work to confer standing.
J. Kennedy Concurrence:
Would limit environmental standing re: injury less than the court does. Congress can create standing, but has to identify injury it seeks to vindicate and relate it to the people it's conferring standing on.
J. Stevens: Concurrence:
Disagrees re: article 3 standing, but would concur on statutory interpretation grounds. Visitation of habitat + future plans to return should confer standing. Imminence = likelihood, not the literal timing.
J. Blackmun: Dissenting:
'slash and burn through environmental standing': geographic formalism over reasonable function of standing.
National Credit Union Administration v. First National Bank & Trust Co. (J. Thomas, 1991) (1140)
Reviewability: Standing: Statutory Standing & Zone of Interest
(Note prudential and statutory standing sort of overlap: zone of interests analysis, semantic game). We do not check for congressional intent to benefit. We look for if an interest is one of those arguably to be protected. We don't care what congress had in mind.
J. O'Connor Dissenting:
This kind of just destroys the whole inquiry, because it's so broad. Would read for some intent by congress.
Reviewability: Standing: Statutory Standing & Zone of Interest
Casino-land-grant suit. Applies the 'arguably to be protected' test, but also holds that the test "forecloses suit only when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assume that congress intended to permit the suit." Not meant to be demanding, meant to make action presumptively reviewable.
Panama Refining Co. v. Ryan (C.J. Hughes, 1935) (30)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: The Nondelegation Doctrine
The official recognition of nondelegation doctrine. The fact that a law gave the executive the power to do something, and only vaguely alluded to how to reach the goals listed means that congress insufficiently limited its own grant of power. Too Legislative in nature. It's just 'power' not when or why specifically.
J. Cardozo, Dissenting
The statute itself is a very narrow delegation- only interstate transport, only gas, only stored product. Further, the declared policies of the act by congress help channel the suitable use of the power. "Discretion is not unconfined and vagrant. It is canalized within the banks that keep it from overflowing."
Industrial Union Dept., AFL-CIO v. American Petroleum Institute (The Benzene Case) (J. Stevens, 1980) (44)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: The Nondelegation Doctrine
(note: 4 person judgment, 'an opinion)
The [dangerous chemical] case. 2 Statutes: #1 secretary must do what's "reasonably" necessary for "safe" employment places. #2 For toxic material, must set standard to adequately assure health.
There is justification to reduce toxic chemical to level 10. But below, not enough justification under the court's reading of the statute. If Gov't really thinks the rule can just be what the Sec. believes is healthy not based on quantifiable data, well not it's not, because that might be unconstitutional. Nondelegation avoidance.
J. Rehnquist Concurrence:
Everyone has a different take on this case. That's itself evidence of the fact that this kind of thing should not be delegated. This, alone, would be uncanalized delegation power. Feasibility not enough of a standard. Functions of nondelegation: Congress chooses; intelligible principle given; courts have a record.
J. Marshall Dissent:
Basically presages chevron.
Whitman v. American Trucking Ass'ns, Inc. (J. Scalia, 2001) (56)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: A New Non-Delegation Doctrine?
"We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute." Agency self-denial has no bearing on delegation questions. Requisite is enough of an intelligible principle.
J. Thomas Concurrence:
I hate delegation because I am from 1776, we should change, whatever.
J. Stevens Concurrence:
We should just stop lying: this is a delegation of legislative power. What's the big problem? The 'all' clause doesn't expressly limit delegation. With an intelligible principle, it's not inherently unconstitutional.
Gundy v. United States (J. Kagan, 2019) (66)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: Renewed Interest in Replacing the Intelligible Principle Standard:
(Note: four person opinion, joined by Alito) The sex offender registration case.
Because of Reynolds, the court held that the A.G. was tasked only with implementing a scheme as quickly as 'feasible' and that's easily constitutional. Other guides that have passed: 'public interest'; 'fair and equitable'; 'requisite to protect public health'.
Justice Alito Concurrence
Agree it's time to change intelligible principle. But it would be 'freakish' to single out this issue.
Justice Gorsuch Dissent
This delegation would give the A.G. unfettered discretion to 'write his own code' of law. The code doesn't require registration within a 'certain' time at all. Can't delegate exclusively legislative powers. Delegation would shortcut all the lawmaking protection of the constitution. Acceptable reasons to delegate: Express Contingency; Fill in blanks; Non-legislative responsibility.
Privatization (90)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: Privatization:
Courts generally quite permissive of the scheme of privatizing rulemaking.
U.S. Dept. of Agriculture v. Murry (J. Douglas, 1973) (104)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: If 'Intelligible Principle' is Bad are Specific Instructions Good?
There's a major kerfuffle over the food-stamp rich kid quandary. The Congressional attempt to fix ruins it. Court holds no due-process here because the law is so poorly devised.
J. Marshall Concurrence
'A hearing would have fixed'
J. Rehnquist Dissent
We shouldn't strike down laws because they're merely imperfect.
Les v. Reilly (9th Cir., 1992) (109)
Congress and Agencies: The Constitutionality of Delegating Policymaking Authority: If 'Intelligible Principle' is Bad are Specific Instructions Good?
The Delaney clause stinks. We all agree. But we cannot fix it because it's Congress' law. They would have to fix it for us.
Pillsbury Co v. Federal Trade Commission (5th Cir. 1966) (154)
Congress and Agencies: Limits on Constitutional Power: Due Process:
Congress was so invested and asked such probing questions of an Administrator that he felt afterwards that he had to recuse. Congress can overreach into adjudication such that due process requires the order produced to be invalidated.
Immigration & Naturalization Service v. Chadha (J. Burger, 1983) (161)
Congress and Agencies: The Procedures Required to Legislate: The Legislative Veto:
The legislative veto is held unconstitutional, because it constitutes legislation that skirts around all the procedural protections of the const: namely bicameralism and presentment. If a house of congress can act alone, it's expressly mentioned that it may do so.
J. White Dissent:
The legislative veto is really useful, and everywhere. It's a functionalist argument.
Presidential Control of Agencies: Tools Presidents use to Control Agencies
Buckley v. Valeo (Per Curiam, 1976) (188)
Presidential Control of Agencies: The Power to Appoint: Who is an Officer?
The strange appointment plan Election board: 2 selected from house alone, 2 by pres on advice of senate, 2 of president only. Officers = 'significant authority under the law'. All officers get appointments clause: these didn't.
These non-officers can do investigative work, like a congressional committee does. But, they cannot do any of the executive/legislative/judicial stuff. That's for officers only.
Lucia v. SEC (J. Kagan, 2018) (199)
Presidential Control of Agencies: The Power to Appoint: Who is an Officer?
The test is Buckley Authority + Continuing office. Here, enough for Buckley: power to conduct trial, let in and keep out evidence, provide for depositions and subpoenas- it's enough. Doesn't matter that SEC ALJ's make no final decisions on law.
J. Thomas Concurrence
True that an officer here. The founders thought anyone with ongoing statutory duty is an officer, regardless of the importance of the duty.
J. Sotomayor, Dissent
In order to pass Buckley, must have the ability to make FINAL, BINDING determinations. In the case that this one relies on, held that the ALJ was sometimes an officer while adjudicating with final auth, but sometimes NOT. This officer is always not!
Presidential Control of Agencies: The Power to Appoint: Inferior or Principal Officer?
Why is the special prosecutor inferior? (1) Removable; (2) Limited SCOPE of Duties; (3) Limited Jurisdiction; (4) Limited Timing.
What about Humphrey's and 'purely executive?' Well sure, but this is a 'good cause' removal. The real test is: "does it interfere with president's authority?
J. Scalia Dissent
SUBORDINATION TEST: this person isn't really removable or subordinate to anyone. And they have the full 'oomph' of the executive branch (maybe a bit more). How is that inferior?
With part 2 of the holding, there are 'no longer any lines' It's not clear what makes a 'pure executive' and it's certainly not clear what would be considered unconst. burden on the president's power.
Myers v. United States (J. Taft, 1926) (260)
Presidential Control of Agencies: The Power to Appoint: the power to Remove:
Congress cannot limit the removal of principal executive officers, but can, because of the vesting clause, limit the removal of inferior ones.
Humphrey's Executor v. United States (J. Sutherland, 1935) (270)
Presidential Control of Agencies: The Power to Appoint: the power to Remove:
The president cannot remove the principal officers which head independent agencies. This is not a purely executive situation: quasi legislative and judicial powers.
Free Enterprise Fund v. PCAOB (J. Roberts, 2010) (281)
Presidential Control of Agencies: The Power to Appoint: the power to Remove:
Double for cause removal protection not allowed. Here it's SEC-> Other board. Not 'cajoler-in-chief!'
J. Breyer Dissent:
N+P argument. Plus this for cause doesn't really change anything. Pres signed this without a signing statement, and as crazy popular in the congress. No one else cares. Plus, no president has ever been so 'deprived' as to attempt to fight the for-cause limits. The functionalist view.
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