Administrative Law Spring 2022

on the record after opportunity for agency hearing

Allegheny-Ludlum Steel, Florida East Coast Rail...found that "after hearing" was not sufficient to trigger formal procedure

# of people affected, whether specific parties are named, prospective applicability, democratic accountability, particularized impact

Tax increases on specific properties in Denver. Due to individualized nature, city must provide notice and opportunity to be heard (due process) to each affected party

Mass tax increase over all property in Denver. Mass legislative actions do not require individual due process, governmental prudential considerations.

Octane numbers. Language "rules and regulations for the purposes of carrying out the provisions of..." allowed for agency to RM. Liberal finding of RM authority, statute would need to explicitly prohibit it otherwise.

Public utility stock scheme. Agencies can adopt new prospective policies through individual ADJ. However, cannot create any liabilities for past actions (but here, defeating reliance interests are ok).

ADJ can have a prospective effect by announcing new policies. Can develop new interpretation of law/statute through an ADJ.

Affirming that agencies can use ADJ to announce a new policy. However, the agency cannot create liability for past actions taken in good faith.

ADJ's new policy cannot be implemented retroactively if it leads to manifest injustice. Two element test for when remedies cannot be imposed: 1) creates liability for past actions, 2) old policy was clear.

Unbiased tribunal, notice, opportunity to present reasons in opposition, call witnesses, know evidence against oneself, decision based exclusively on the record, right to have counsel, making of a record, public attendance, JR...in other words, trial-like procedures.

Extremely broad...includes not just freedom from bodily restraint but also concepts such as right to marry, worship freely, etc..."enjoy those privileges long recognized...as essential to the orderly pursuit of happiness by free men"

Under Goldberg, includes welfare. Under Roth, one must have a legitimate claim of entitlement to the thing. Under Kapps (2nd Cir.), that applying for benefits for the first time creates a property interest.

AFDC aid. Due process requires a hearing pre-termination. Welfare is property. Balancing private and government interests.

Requiring agencies with limited resources to conduct trial-like hearings pre-termination takes resources away from other recipients of the welfare.

New balancing test: private interest at stake, risk of erroneous deprivation, and government's interest. Here, found in favor of the government.

Hearings are to be conducted in an impartial manner.

FTC Chair was previously congressional staffer on issue, wrote a report about conclusion. Disqualifying because he had prejudged the same facts involving the same parties!

Agency heads are allowed to largely rely on the expertise of their staff.

Expert staff can analyze facts of a case but cannot add new ones.

Steadman v. SEC established that largely, the standard of proof at an agency hearing is the preponderance of the evidence. However, Woodby v. INS held that deportations require clear and convincing evidence. Exceptions exist based on interest at stake.

Universal Camera (2nd Cir): ALJ's decision is part of the record and must be given some independent weight. Allentown Broadcasting: weight given is more than de novo, but less than an appellate judge would give a trial court.

Testimony of doctors and Perales v. written reports of other doctors. Key that Perales did not request issuance of subpoena. Hearsay is admissible in agency hearings up to the point of relevance, can beat out live testimony.

In the ADJ context, live testimony without disclosure of the underlying data can serve as substantial evidence.

Airline pilot retirement at 60. RM under Bi-Metallic, no PDP issue. RM may have retrospective liability without violating DP.

1) APA 554(d)(1): may not consult on a fact in issue, unless on notice and opportunity for all. 2) 554(d): not responsible or under supervision of anyone engaged in performance of investigative/prosecutorial function. 3) 557(d)(a)(A): no interested person outside agency shall make an ex parte communication relevant to the merits.

"Disinterested observer" test. Presiding officer cannot prejudge or give the impression that a case has been prejudged.

A direct pecuniary interest of an agency can invalidate a decision (i.e. board members have direct pecuniary interest in outcome).

No :institutional bias" if money from fines goes to the agency budget.

A decision maker's personal knowledge of the facts is not always disqualifying (school disciplinarian).

ALJs are inferior officers. Not an issue for the SEC, because agency head just has to rubber stamp. But are OPM protections unconstitutional?

Important DC Circuit case. Says civil service statutes may implicitly repeal the rights of ALJs to sue under APA for decisional independence.

Disagrees with Mahoney, says that ALJs do have cause of action to sue under APA. But anyway, quota policy for 500 ADJs a year is permissible and does not interfere with independence.

WAP. ALJ with below 80% productivity can be targeted, but very hard.

Paint by numbers disability matrix. Agency can use RM to resolve repetitive questions and classes of factual issues to make ALJ decisions more consistent. Needs to be a general issue applicable to all applicants (here, job numbers in national economy). Suggests escape clause is key. But see Quesada, American Hospital Association, which create presumption of agency ability to narrow.

Address alternatives and counterarguments. Under State Farm, explain the available evidence and offer a rational connection between the facts found and choices made.

Headrests. Established that a record in informal RM consists of the comments and rule's preamble. Agencies are expected to create a statement that will enable courts to see the major issues ID'd and why the agency reacted as such. Blurring out 706(2)(A) and (C).

Tire retreading. Agency response was inadequate in regard to how the rule addressed a reasonable risk and whether it was practicable, which were both required in the statute. Although industry comments may be biased, they still must be adequately addressed.

Hard look is love, hard look is life. Seatbelts. Rule rescission is also subject to the AC standard under hard look review. Agency failed to consider alternatives (namely requiring airbags in all cars), and the 5-4 majority says they also did not respond adequately to seatbelt arguments. Rational connection between the facts found and the choice made. Rehnquist was a little sad and thinks political turnover should be a reasonable basis for agency to reassess its programs.

Agencies must consider and adhere to factors mandated in statutes (here, driver health).

Further blending of AC and 706(2)(C), rule was AC because it violated the sub statute.

Finding action is unlawful but allowing to stay in place while agency redoes its process. Allied Signal lays out two major factors to consider: is the agency likely to come back and get same rule upheld? How disruptive or perverse would it be to invalidate a rule while agency comes up with a replacement?

Issue with RWV where agency did not fix for six years! Court issued writ of mandamus that they had to produce or else the rule would be vacated

Agency cannot produce new justifications for a rule after the agency hearing once it is under JR. Note that Wyman-Gordon suggests that an agency could clarify a previously made argument in order to avoid a "ping-pong game."

1) 553(b)(A): guidance documents (IR and PS). 2) 553(a)(1): military and foreign affairs. 3) 553(a)(2): rules on agency management. 4) 553(b)(a): rules on agency organization/procedure. 5) 553(b)(B): good cause--when NC is impracticable, unnecessary, or contrary to public interest.

No binding norms. Act like a press release, presaging an upcoming rulemaking or announcing the course which the agency intends to follow in future ADJs.

1) how mandatory the text of the document is 2) how binding the document is in practice based on agency action

Action levels for non-compliance and FDA seizure. Invalidated even though FDA was going to prove validity of action levels in every ADJ. Agency policy which binds prosecutorial discretion is an LR requiring NC.

Regional weather recalls. Under GE, all good: language was not mandatory and NHTSA had no record of treating it as binding. Near-universal compliance does not = binding if it is voluntary. Also, if a little official without RM authority doles it out, it's more likely to be PS.

Agency departures from policy guidance help prove it is a PS.

UKASE. The guidance was an LR because it read as completely mandatory for almost all of it--boilerplate language at the end is insufficient to make it nonbinding.

Even if it is a nonbinding document, consistently binding practice in the administration of ADJs suggests that it is a binding LR.

1) no adequate legal basis to act without the rule, 2) irreconcilable with a prior LR

Three factors on deciding whether it is an IR: 1) fairly encompassed within what it purports to interpret, 2) tightly drawn linguistically from actual language, 3) not distinct or additive. Also introduced one-bite but NVM.

Hoctor (7th Cir.) says that providing specific fence heights was an arbitrary rule that could not be IR because it specified a generality too much...but Central Texas Telephone (DC) said that agency may us IR to go to a specific duty/right.

Struck down the one-bite doctrine. Agency allowed to adjust its IR as long as it follows potential heightened Fox standard for rule change.

If a IFR actually lacked good cause when it was promulgated, but the rule has since gone through valid NC, the IFR has no effect on legitimacy of the real rule.

553(b)(a) exception RE agency organization and procedure. Procedural rules cannot alter rights, but if they alter the presentation made by parties it is ok (putting the label meeting industry out of business).

Promulgate rule, used when you think it won't be controversial. Goes into effect without NC unless there are adverse comments within a set time.

Like Little Sisters of the Poor. Need rule now, but will still conduct NC to increase legitimacy and make permanent.

Former is the whitefish case, latter just affirms the same concept for the DC circuit. Any scientific studies used as the basis of the rule must be made available to the public for meaningful comment. Conceptually, not doing so violates 553(c) requirement for participation in NC.

The record should constrain the agency's decision-making...decide within the record.

Logical outgrowth test. Encourages consensus-building prior to the issuance of the NPRM.

Cannot limit the subjects people can comment on or institute an unreasonably short period for comment.

Can accept comments after close of official comment period. Only an issue if they are 1) of central importance to RM AND 2) were submitted so close to issuance of rule that others could not respond

Agencies only have to respond to the significant comments

Agencies can use outside consultants to summarize and evaluate comments for rule promulgation

Response to liberal DC Circuit judges requiring oral hearings and cross-X on important environmental rules. Case said agencies cannot be required to follow procedures that are not in APA, sub statute, or agency rule

JR exception for statutory preclusion

JR exception for committed to agency discretion, no law to apply

Right of review when harmed by agency action

Agency action made reviewable by statute and final agency action for which there is no adequate remedy is subject to JR

A. AC, B. unconstitutional, C. contrary to sub statute, D. violating agency procedures, E. set aside FORMAL action for lack of substantial evidence, F. (rare) set aside action for being unwarranted by facts

Thorough, in-depth review is appropriate. 702 and 704 provide presumption of JR. Clear and convincing evidence standard under 701(a)(1). Also creates no law to apply, narrow conception of 701(a)(2). Also a presumption against discovery.

Documents which fall under the due process privilege are not part of the administrative record at all and do not need to be logged in a privilege log.

Test for deliberative process privilege. Whether it is so candid that public disclosure will stifle honest comms, whether it is recommendatory or a draft, whether it is deliberative (pre-decisional and deliberative).

DPP does not apply to factual information, only the opinion/recommendations in a report.

Remand is appropriate rather than approval of discovery unless there is a showing of bad faith (this is rare--Tummino is an example, required whistleblowers on the agency).

Agency does not need to show that a new policy is better than the previous one to survive AC. It must show awareness that it is changing and provide reasons for new one (Scalia plurality). Kennedy's controlling concurrence notes there would be a higher standard if you're reversing fact-finding or upsetting reliance interests.

DC decision that the "core requirement" an agency must meet when changing course is to provide a reasoned explanation for action and display awareness that it is changing position.

Formal ADJ setting---invalidated because the Commissioners were called into Congress and questioned directly on case. This violates PDP because interference was on decisional processes while the case was pending before it.

DC circuit case which says that as long as the Congressional pressure is not applied to the agency decisionmakers, it does not invalidate decision.

Congressman Natcher, bridge for a subway. Violation of 706(2)(A) and (c) because agency decided based on a reason that was not permitted under the sub statute.

Almost impossible to get interference doctrine into a RM case. Pressure here was "regrettable" but too intangible and hypothetical to vacate the RM.

An exclusive record may require disclosure of ex parte contacts. Once an NPRM is out, agency officials should refuse ex parte contacts, or enter them in the record when they do happen for comment (limited in Actions for Children's TV).

Ex parte contacts are not restricted in informal RM for general policymaking as long as it doesn't involve competing claims to valuable privilege.

No ex parte contacts are allowed when the RM addresses competing claims to a valuable resource.

Seven meetings with lobbyists were cool because they were documented in record and followed Children's TV (requirement of documenting came from CAA). One with decision makers is ok because it was a mistake. Meeting with the president was alright because intra-executive contacts are allowed, plus a consideration that president only offered his interpretations of the record. Byrd meeting fine as well, because no showing that there was active pressure. This pressure would need to 1) be designed to force agency to act on factors outside statute and 2) actually affect the agency's decision.

Pretext, pretext. Pretextual reasons should be deleted--if nothing less, automatically AC. Judge ordered completion of AR after Secretary wrote memo saying he had asked DOJ to ask him to include citizenship question. This led to understanding that the whole reasoning (better enforcement of the VRA) was pretextual and thus the agency had provided no reasoning.

Agency interpretations are not controlling, but do constitute a body of experience and judgement to which the court should look to for guidance based on the "power to persuade"

Is the sub statute ambiguous? If yes, then is the agency's interpretation based on a permissible construction of the statute?

Chevron deference is only available when Congress delegates the authority to make rules carrying the force of law. Formal ADJ, NC RM, and formal RM always get Chevron. Informal ADJ and guidance depends--Mead factors include text, precedential status, not subject to override, elaborateness of procedure, centralized decision-making.

Turns away from Mead by confirmed that guidance documents may get Chevron deference. Used totally different factors, including interstitial nature of the question, related expertise, important of question, complexity of the statute, and period of time considered.

Chevron deference is not available if the agency is not the one with primary authority over a jointly administered statute.

Cigarettes defined as a drug by FDA. But court uses major question doctrine to deny deference--no way Congress wanted agency to decide questions with this great economic/political significance with Chevron deference.

More major question doctrine. IRS gets no deference over Obamacare exchange subsidies, Court reviews de novo.

Agency interpretation of its own jurisdiction is Chevron-eligible.

Agencies receive deference in interpreting the procedures an agency must follow pursuant to the sub statute.

Agencies do not have to obey judicial interpretations from the past.

Agency interpretations of their own regulations are controlling unless plainly erroneous/inconsistent with the regulation. Concern over how this allows agencies to issue vague LRs and use Auer to specify.

Auer deference barely holds on. Says that it applies when the interpretations are the agency's authoritative position. Also needs to be fair and considered judgement. Agencies usually lose Auer if they are re-interpreting something they already interpreted. Anti-parroting: no deference if the agency's rule simply parrots the sub statute.

D.C. circuit case saying that substantial evidence under 706(2)(E) and AC are the same standard.

An informal ADJ must be supported by substantial evidence or else it would be AC. Light fixture on runway case.

Breyer suggesting difference between AC and SE is "subtle."

(1) is when a statute precludes JR, (2) is when action is committed to agency discretion by law

Conscientious objector--sub statute precluded JR of the VA providing benefits. Court allows challenge under 706(2)(B) because a constitutional claim requires heightened showing of Congressional intent to preclude (which might be unconstitutional anyway).

Preclusion may be unconstitutional when a statute precludes habeas claims.

may be unconstitutional for Congress to preclude purely legal claims that an agency violated a statute.

Partial preclusion is permissible. D could get review of whether the rule violated was an "emission standard," the statutory claim, but cannot get JR of whether they complied with appropriate procedures, AC, or 706(2)(E). Court seemed to be moved a bit by fact that this was criminal case.

Milk cartel, consumers implicitly precluded. OK...where granting JR would disrupt a statutory scheme, court will read implied preclusion into it.

Expressly offering some JR does not necessarily imply withholding it in other circumstances. As long as you are not messing up statutory scheme, not being mentioned does not = implied preclusion.

CIA LBGT employee fired. Important that statute included terms like the director could "deem" termination necessary. No law to apply when statutes are drawn broadly. However, constitutional claims are allowable.

Lump sum appropriations do not provide law to apply.

If the agency creates specific rules that give texture to broad statute, it can create its own law to apply.

Law to apply can also be created by a "settled course of ADJ" that is very consistent.

Presumption against JR can be rebutted, particularly is statute includes objective triggers and mandatory language. Narrow because the statute included both triggers and language. See 555(b) and 555(e) for agency needing to provide an explanation hen it refuses to enforce.

Death row inmates wanting FDA to take enforcement action because execution drugs were not approved for use as such. FDA rejected petition in 555(e) letter with grounds. JR precluded by 701(a)(2)--general rebuttable presumption against JR for agency inaction. Notes of interest: 1) guidance probably cannot ever supply law to apply to rebut. 2) If agency's only reasoning is their reading of a statute, 701(a)(2) does not apply.

Agency had created law to apply (Miami Nation analogue for nonenforcement) by creating agency regulations with standards.

Follow-up to that Chaney note. A 706(a)(2) discretion question requires prudential, not only legal, arguments to decline enforcement.

Not a Chaney protected case because DA grants affirmative benefits. Then says DAPA was really a LR and needed NC because they assumed that it would be granted in a binding way (assumption that it would be administered similarly to DACA). Also went further to find that it violated the INA and thus also 706(2)(c).

Rescission of the DACA memo was AC. Had to challenge under (2)(a) because they wanted procedure of DACA as a memo to stand. Lower courts say there is an International Union exception to Chaney here because DHS's only rationale for rescinding DACA was that it was unlawful--Court will be the judge of that! But SCOTUS finds otherwise--says that DACA is not simply a non-enforcement policy. ADJs for DA are affirmative acts of approval. Court holds that since the rescission memo relied totally on DAPA 5th Circuit opinion, and 5th Cir was really only ruling on unlawful grants of benefits with DA, the 5th didn't really review legality of granting DA. DHS did not adequately explain why it did not just decouple benefits instead of deporting all DHS eligible folks.

JR for an action unlawfully withheld or unreasonably delayed (makes it easier to challenge RM inaction).

Refusals to promulgate RM are JR, but review is "extremely limited" and "highly deferential." Reads the CAA to say that when agency makes a judgement that X endangers public health, EPA must prescribe a rule for X...but further, that agency must make a judgement when requested.

Courts can compel action under 706(1) if action is 1) discrete and 2) required by law. In this case, use of land use plans to protect land and keep it in wilderness state. Discrete: means a rule, order, or license/sanction/relief (land use plan passes). Required by law: the plans are broad and aspirational , so it is not required by law.

Finality, ripeness, exhaustion

Consummation of agency's decision-making process, determines rights/obligations (be an action from which legal consequences will flow), no other remedy in court

WOTUS. Consummation because the judicial determinations aren't revisited (if it goes to permitting, Roberts sees that as new process). Legal consequences: denial of safe harbor of a negative WOTUS JD. No other adequate remedy: risk of penalties is so high as to make alternates inadequate, and permitting option is too slow as well.

Defense Base Closure. It is consummation, but no legal consequences because President could decide not to close any bases. Also, presidential action is required to give the final effect, and his action is not subject to JR under the APA.

Legitimate PS an never be final, so never subject to pre-enforcement review: IRs can be final/reviewable

1) fitness of the issue (which includes finality and whether it is a purely legal issue), 2) hardship to the parties of withholding JR (cost of compliance and cost of defiance).

If a rule merely limits your eligibility for a benefit, pre-enforcement review is unripe. Instead, apply for the benefit and then challenge when denied.

Pre-enforcement challenges by unregulated parties concerning a regulated resource. If you are seeking regulation, hardship prong is 1) practical harm to plaintiff's interest, 2) legal obstacles to later challenges, and 3) whether plaintiffs will be forced to alter behavior.

McKart: agency does not have expertise on constructing statutory phrase "surviving son," so exhaustion requirement waived. McGee: Court refuses to excuse failure to exhaust because conscientious objector question was complex set of facts the Board had particular expertise on.

Unless otherwise required by agency rule, APA 704 allows a challenge to go to court without appealing to superior agency authority. Agency needs to require exhaustion. Additionally, agency must stay the effectiveness of decision during internal appeals.

Requirement of issue exhaustion only exists in an adversarial agency proceeding.

Prospective exhaustion: if there is still opportunity for the agency to hear your argument, you should do so before JR (barring exceptions).

Exhaustion doctrine does not bar JR for a "key assumption" underlying rule.

If the rule is actively being enforced against you and you're challenging enforcement, you can challenge the rule in any way.

In gaps left by APA (aka can't sue President because he's not an agency under Franklin), judge-made federal equity survives. Gives cause of action to sue president's subordinates.

Injury in fact, causation, redressability

Injury to an aesthetic or recreational interest counts toward standing. Generalized public interest not enough to show injury in fact

Habitats of endangered species in foreign countries. Affidavits from members of group establishing that they have general desire to go see the animals again are not sufficient to establish standing. If sub statute gives a private person right to have agency follow certain procedures, then it can soften standing requirements. I.e. violation of NC does not require showing that doing NC would've ended in a different result. Cannot have a lawsuit to vindicate general interest in legal government action.

Water pollution. Association standing test: at least one member with their own right to sue, suit is relevant to group purpose, and suit doesn't require individual participation. Perceived damages to the river sufficient to serve as basis for injury. Causation/redressability met by the civil penalties, which have a deterrent effect. On mootness, voluntary cessation only moots when it is absolutely clear that conduct will not occur again.

State of Mass has Article III standing. Injury in fact met because MA owns coastal land, and a slight correction to global warming is sufficient for C/R. Special solicitude for states.

Texas has standing because they were giving out drivers licenses to all those granted DA, which cost the state money. Obama DOJ argues that this is the state creating a right for itself, but 5th Cir decides that since TX hadn't adopted this scheme in response to DACA and the magnitude was relevant, TX does have standing.

SORNA and registration of pre-act sex offenders. Split decision. Liberals read SORNA under intelligible principle doctrine, decide that AG was only deciding how to apply SORNA to pre-act offenders RE timing. Gorsuch thinks intelligible principle is idiotic, asks more fundamental questions: is executive only doing factual findings? Does it set forth criteria executive must consider? Did Congress make the policy judgements? Neil thinks not.

Officers = exercise significant authority pursuant to the laws of the United States.

An inferior officer = one whose work is "directed and supervised at some level by others who were appointed by presidential nomination with advice and consent of the Senate." Herein, Coast Guard Court of Crim Appeals. Note: if you are below an Article III court, you are not inferior.

A limiting of Myers. Congress can create for-cause firing requirements for quasi-legislative and quasi-judicial officers. It is only purely executive officers, like in Myers, that the President needs to be able to remove at will. Quasi-legislative because filling in and administering the details embodied by the general standard of the sub state (here, case-by-case ADJ).

Protection from removal, multiple heads, staggered terms, party balance, independent litigatory authority, bypassing OMB

Courts can infer for-cause firing requirements. Fixed term + silence on removal + ADJ functions = for cause.

Legality of the IC. Removal was constitutional under a functional test. Does the constraint interfere with the exercise of the President's executive power and Take Care Clause duties? Good that IC only has investigative/prosecutorial functions, limited jc, short duration of office, and ultimately supervised by AG.

SEC Commissioners are head of a department, multi-agency heads may be responsible for appointments when delegated by Congress. More importantly, double for-cause removal protections are unconstitutional breach of separation of powers. Roberts says that this does not affect ALJs because they only perform ADJ functions and sometimes possess purely recommendatory powers...oof.

Single CFPB head. Had tenure protection, removal protection in sub, independent lit authority, budget independence. Tenure protection is unconstitutional. You do not get removal protection for officers unless: 1) principal officer within holding of Humphrey (the independent agency features). 2) you're an inferior officer within holding of Morrison. Narrowing down Morrison test to just the inferior officers!

1) if authorized by statute, good if constitutional. If neither authorized nor contrary, P needs inherent constitutional authority. If contrary, P needs inherent constitutional authority and statute must be unconstitutional.

Telling Post Office not to pay claim in violation of statute. President cannot use inherent authority to tell executive officer to violate the law/abrogate duty prescribed by Congress.

Take Care Clause can support inherent executive authority to take action. Marshall assigning bodyguard to the Justice.

Under Neagle, if POTUS is allowed to review rules than he can delegate it to OMB. Memo believes EO is a modest proposal: only occurs to extent permitted by statute, OMB has no authority to actually block a rule, and rule applies only to executive agencies.

DC Circuit dodging question of whether OMB is lawful, instead strikes down the rule as inconsistent with sub statute.

OMB review cannot prevent an agency from adhering to a statutory deadline for RM.

Under 1(a)/(b), requires CBA but opens it up to non-monetary factors such as environ, public health and safety, distributive impacts, etc. CMA only required for significant regulatory actions under 3(f), aka annual effect of $100 million or more, adversely affects economy, inconsistent with other agency action, materially alters the agency's budgetary impacts, raises novel legal or policy issues. Section 10 says that EO does not create any right or benefit enforceable at law or equity--you can't make OIRA review happen!