Actions of Agencies

Question 1

What are the elements of arbitrary and capricious review

Answer 1

1) adequate explanation and )2) rational relationship b/w explanation and the facts in the record

Question 2

Requirements of RM (sxn 553)

Answer 2

Notice
comment
publication and
openness to petitions

Question 3

When is N&C not necessary

Answer 3

Miilitary/foreign affairs
agency management to contracts personnel etc
Interpretive rules
policy statements
procedural rules - test = does the regulated entity change its behavior because of this change
good cause (rare) - b/c impracticable or contrary to public interest

Question 4

Remedy for violating RM

Answer 4

remand to agency

Question 5

When is something subject to formal vs informal RM

Answer 5

Has the magic words “on the record after opportunity for agency hearing”

Question 6

Can courts add requirements to FR or IR?

Answer 6

No - under Vermont Yankee - DC Ct imposed FR where not required - “absent constitutional constraints or extremely compelling circumstances”

Question 7

What is one additional requirement that court’s accept? An exception to Vermont yankee?

Answer 7

Data and methodology included in proposed RM (via Portland Cement)

Question 8

Under IR, what is notice?

Answer 8

In the federal register the notice of all the 553 things (time place manner the gist or text of the rule data and methodlolgy and statement of basis and purpose (see 553 on test)

Question 9

When is notice an issue for notice and comment?

Answer 9

The “logical outgrowth” test - would the party know “their interests are on the table” here (his version) - i.e. if PR=X and actual rule is NOT X, this is a logical outgrowth

Question 10

What is the remedy for a notice issue?

Answer 10

Reopen the N&C period

Question 11

What limits are the for ex parte contacts for FR vs IR?

Answer 11

For FR, zero ex parte contacts
For IR, no bar besides these three:
1) Agency’s own statute (i.e. what Congress allows)
2) Self-imposed limitations
3) Constitutional Due Process limitations seen in Asangamon Valley (RF change when psedoadjudicative and one of two cities had ex parte contacts)

Question 12

Rulemaking statutes generally applicable

Answer 12

NEPA (environmental impact)
RFA (small organizations)
PRA (paperwork)
EQ 12866 (>100Mil–recently doubled) has to be approved through OIRA

Question 13

Chevron test (to determine if the agency gets Chevron deference)

Answer 13

Step 0 - is this statute this agency’s to interpret (if not, then de novo)
Step 1 - is the statute ambiguous or contain a gap Congress intended agency to fill? (if not, then de novo; some justices use legislative history but controversial obviously)
Step 2 - is the agency’s interpretation reasonable? Y - then agency interp wins/ N - does not win under de novo

Note: ALWAYS raise major questions if discussing Chevron - just say “economically large impact then Congress needs to speak clearly”

Question 14

What are the stds of review and when do we use them?

Answer 14

Informal rulemaking or adjudication-
A&C - is it reasonable

Formal RM or formal adjudication -
Substantial evidence - is it reasonable but slightly more searching

Hybrid - see statute

Question 15

Examples of how to prove informal rule or informal adjudication was A&C

Answer 15

Reliance on factors Congress forbit
Left out crucial issue (by statute or logic)
Inadequate explanation
Just dumb

Question 16

Distinguish between adjudication vs rulemaking

Answer 16

Rulemaking is all parties and any facts; adjudication is this party and these facts

Question 17

What words make an agency have to go through FA instead of IA

Answer 17

“on the record after opportunity for an agency hearing”

Question 18

FA requirements

Answer 18

Notice to parties
What adj concerns
ALJ must preside

Question 19

What can/cannot ALJs do?

Answer 19

Can do anything, raise constitutional issues etc
Cannot invalidate organic statute AND must follow agencys interpretations/interpretive rules

Question 20

Benefit of FA vs IA

Answer 20

In FA there are no due process concerns

Question 21

What has the burden of proof in FA

Answer 21

The proponent (unless statute says otherwise)

Question 22

How are final orders submitted in adjudicatory proceedings

Answer 22

Either the ALJ directly OR the ALJ recommends to the head of the agency

Question 23

How is 556 (FA) “substantial evidence” different that the same term in 706

Answer 23

Under 556 the ALJ must find that there is “good quality of evidence” while under the SE std of review under 706 there must be ENOUGH evidence for a reasonable person – so quantitative in a way

Question 24

Can hearsay be used in admin courts

Answer 24

YES- no FRE, but still must be “substantial” so must be reliable

Question 25

Remedies for ex parte contacts (necc. found by art III ct)

Answer 25

First question - who?
If it was one of the parties - three options:
1. Just give notice to partys about adjudication
2. Vacate and remand
3. Show cause - improper communicator is given the burden to show cause why the tainted adjudication should not be altered to his detriment”

Question 26

What is the test if a court will vacate and remand because of 3P contacts

Answer 26

(1) the gravity of contacts
(2) whether they influenced the decision
(3) whether the improper communicator benefited
(4) whether adverse parties knew about it; and
(5) whether remand would serve a useful purpose.

Question 27

What are the limitations on ex parte contacts for informal adjudications

Answer 27

In APA? NONE -
But there are due process concerns -

For there to be a due process clause issue, the court first will make sure its (1) new and (2) material

Note: there will be this tension between wehther something is “duplicative” or a “powerful recitation”

Question 28

What are the requirements to show a due process violation in informal adjudications

Answer 28

A) The normal way –>

1) individualized decisionmaking (challenging your houses assessment vs challenging the millage rate)
+
2) liberty or property interest at risk
a) money
b) physical bodily restraint
c) property interest, including “any entitlement or legitimate non unilateral expectation of guaranteed benefit”
d) stigma (plus) - stigma plus a definitive gov’t action
–> IF YES - then Mathews test
OR

B) No neutral decisionmaker - (a) not financially or personally involved in the case (b) prejudging matters of law is not a dueprocess problem, but prejudgement of facts IS

Question 29

How do we determine what process is due if there is a Due Process violation

Answer 29

Mathews v Eldridge test -

B vs IP
Burden to the government of increased process
-weighed against-

Interest at stake for people in plaintiff’s position AND
The probability of erroneous deprivation

Question 30

Mathews v Eldridge test that are helpful

Answer 30

Goldberg v Kelley - pretermination hearing necc for gov’t benefits COMPARED TO Mathews where SSA not necc. because most people have enough money that this isnt an issue + other gov’t programs

Question 31

What std of review does an ALJ decision get?

Answer 31

Depends whether it is a Fact question (SE std - so (1) reasonable + (2) adequate explanation) vs a Legal question (de novo)

Question 32

What is the remedy for an improper ALJ decision

Answer 32

Overton Park - remand because ZERO fact-finding

Question 33

What kind of deference does ALJ get?

Answer 33

Depends on if its a factual issue (derivative inferences 0 deference) vs (testimonial inferences - great weight given to ALJ)

VS

Legal issue - where you get Hearst deference (not this is just q’s of law + formal adj - because ALJ)

Question 34

Can standards be promulgated with retroactive effect?

Answer 34

Yes - if express authority to do this is given and if it passes the test:
(1) extent that std is new and so it upsets reliance interests
(2) weighed against the agencies interest in imposing it retroactively

Question 35

Are some parties with standing still not allowed a proceeding?

Answer 35

YES - if facts are so clear you don’t get one

Question 36

What kind of deference does an agency get if it is interpreting its own vague rule?

Answer 36

GE deference

Question 37

How does a party bring a lack-of-notice complaint?

Answer 37

Two elements, but the third is important:
1) No actual notice - no similar adjudications or preenforcement notice or publications
2)Must meet the “fairly obvious” standard - so within range or possibilities
3) Must be both substantial AND retrospective

Question 38

What are the types of nonlegislative rules and whats the benefit/detriment of an NLR

Answer 38

Interpretive rules and policy statements AND - the rules dont require N&C so faster (although FOIA does require publication) BUT it does not bind the agency itself (IR’s do bind ALJs but there is no duty we are saying)

Question 39

Can an agency be estopped from moving against you?

Answer 39

Rare for informal advice, you need “reasonable detrimental reliance” is the test but this is hard to show when its the gov’t – especially where there is money at issue (constitutional issues there because the spending clause) and easier in some states

Question 40

What is the Deference Chart

Answer 40

What is being interpreted?
Applied to: Statute Agency’s Leg. rule
Inf/form r | Chevron | X
Form adj | Hearst | GE
Inf adj | Force of law? Chevron | GE
| No force of law? Skidr* | GE
Nonleg R | Walton** – i.e. centrality test |GE*
* Remember Gonzales – as Scalia warned, the agency may just try to move to the second column and get GE deference by just parroting the statute and then interpreting that! That’s what happened in Gonzales, and the court said NO that gets Skidmore too
**Walton case – remember the court interpreting “disability” as both “impairment” and “inability.” Interpretive rules don’t have the force of law because they don’t. So wouldn’t you think Skidmore? You’d be wrong– court says this gets Chevron because even though it did not have the FOL it applies this test: