Admin Law Flashcards
Standard of Review for Specific Agency Actions
Not to promulgate: deferential; promulgate: deferential; arb and cap; rescind: deferential; arb. and cap.
What makes something arb. and cap?
Failure to explain itself
4 Factor Test for Article 3 Challenges (Schor)
(1) Extent to which judiciary retains Article III powers, (2) extent to which non-Article III body exercises Article III powers, (3) origins and importance of the right to be adjudicated, (4) Congress’s reasons for departing from Article III reqs.
President Removal Powers
Implied removal power from appointment power and decision of 1789; not every justice or scholar agrees with 1789. He can remove within the executive branch but cannot remove officials performing quasi-legislative or quasi-judicial functions
Free Enterprise Fund v. PCAOB
Multi-layered for-cause protection from removal by the President when acting in an executive function is unconstitutional. Agency removal must abide by the accountability framework when acting in an executory function
Delegation to other branches
Legislative power: apply intelligible principle limitation; Adjudicative: If non-Article III Court, apply 4 factor Schor test
Presidential Control of Agencies
Power to Appoint; power to remove; presidential overreach–is pres. act constitutional? Apply Jackson concurrence.
Nondelegation doctrine
The non-delegation doctrine is a principle in administrative law that Congress cannot delegate its legislative powers to other entities. There must be an intelligible principle.
Intelligible Principle canned sentence
If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to exercise delegated authority is directed to conform, such legislative action is not a forbidden delegation of legislative power.
Intelligible Principle Test
Prevents a whim but affords discretion. Look at the actual text/language of the statue, sentence in context, the legislative history, preamble and the goals listed.
Delegation safeguards
Judicial review to ensure that the agency is sticking ot its intelligible principle, and APA and enabling statutes limit how an agency can do something and subejcts them to judicial review
Difference between Art. III court and non-Art. III court?
Art. III court has life tenure and salary protection. Non-Art. III court does not.
Traditional Test for unconst. delegation to non-art. III court
Formalist approach relied a lot on the public/private rights distinction. Publi right was indiviaul v. government and private right was individual v. individual. Adjudicated by an Art III court, unless non-Art. II court only engages in fact-finding
Standing
Article III of the Constitution limits judicial power to cases and controversies. The Standing Doctrine identifies those disputes which may be appropriately resolved through the judicial process. To establish standing, the plaintiff must show: (1) an injury in fact, meaning particularized and actual or imminent; (2) that there is a causal connection between the injury and the conduct complained of; and (3) that a favorable decision will likely redress the injury.
How to Fail Arbitrary and Cap. standard
agency relied on factors that Congress did not want the agency to consider, the agency failed to consider a part of the problem, the explanation given was counter to the evidence, the explanation was so implausible that it cannot be attributed to agency expertise
Mathews Balancing
The private interest of the individual, risk of erroneous deprivation by procedures used and probable value of additional safeguards, government’s interest in financial and administrative efficiency
Rulemaking v. Adjudication
Rulemaking: forward-looking to open class. Adjudication: backward and named persons
Procedural due process steps
- was there a government action? (step 0-Londoner and Bi-Metallic) 2. deprivation of protected liberty or property interest? 3. What process is due? apply Mathews Balancing
Values of Due Process
Accuracy, fit, dignity/equality
Due process minimum
notice and opportunity to be heard
notice for due process?
nature of legal issues, time and place, nature of the hearing
How does Court decide whether intelligible principle exists?
actual text, sentence in context, legislative history, goals listed in preamble, look at how statutes have been interpreted
Delegation safeguards
judicial review that ensures sticking with intelligible principle, and APA/enabling statutes that limit how agency can do something
Unconstitutional legislative veto
Const. requires bicameral approval of legislative bills and presenment of any order, resolution, or vote to President for veto
Who appoints principal officer?
Appointments clause expressly requires that principal officers be appointed by the President and approved by the Senate
Who appoints inferior officer?
Appointments Clause recognizes that inferior offiers may be appointed by the President, Courts of Law, or Heads of Departments
Distinguishing officer types
Inferior: official’s work is subject to close supervision, officer removable at will, by an officer who has been appointed by the President with the Senate’s consent.
An official with limited duties, narrow jurisdiction, and a tenure that ends when duties are discharged, also inferior?
Buckley v. Valeo
FEC officers are principal because of broad executive power to sanction and regulate political campaigns
Lucia
ALJs are principal officers subject to Appointments Clause to be classified as an officer rather than an employee, a person needs to have a “continuing” position established by law, and must exercise significant authority pursuant to eh laws of the United States
Removal of purely executive individuals
President can remove officer at will pursuant to “faithfully” execute const. clause and no statute can infringe on that. If statute imposes restriction but does not unduly trammel on Pres. “faithfully” duties, then no const. violation (Morrison)
Removal of individuals who are not purely executive
President CAN’T remove, Congress can limit Presidential removal to something like for good cause UNLESS there is a double layer
Double layer of removal not allowed
- non-purely exec agency plus a subsidiary board underneath that agency that is only removed for good cause (Free Enterprise)
Meyers v. United States
Postmaster is purely executive and was chosen by the President as subordinate to execute laws
Humphrey’s Exec
FTC was a quai-legislative and quasi-judicial agency that was designed to be insulated from partisan politics and therefore the Pres cannot remove them at will
Morrison v. Olson
Unduly trammel test–do limitations in removal unduly trammel on presidential power to execute and take care?
Free Enterprise
Double layer of good cause removal is unconstiutional
Youngstown Jackson lowest ebb
President acts against the will of Congress; his Const. powers have to outweigh the Const. powers of Congress. Courts can allow this by disabling powers from Congress; heavy scrutiny by court.
Youngstown Jackson medium ebb
President acts in absence of a congressional grant or denial of authority; concurrent authority. Any actual test of power is based on imperatives of event and the court analyzes; imperatives of the situation dictate
Youngstown strongest ebb
President acts with the express or implied authorization of Congress; power at a max. Not absolutely sustained, but usually will not be reversed by court. If it is unconstitutional, it is because no one in the federal government can do it
Two classes that are exempt from judicial review under the APA
701(a): statutes that preclude judicial review and agency action committed to agency discretion by law
Londoner
Where a legislature delegates authority to assess taxes, due process requires that before the taxes become irrevocably fized, the taxpayer has notice and opportunity to be heard
Bi-Metallic
Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption
Substantive Rule
Force of law
APA 553
Informal rulemaking, sleek like jaguar, notice, comment, final rule, publication–“concise general statement of the rule’s basis and purpose”
Features of a rulemaking
prospective, produces a rule, general applicability, consistency over flexibility
Features of an adjudication
trial type proceeding, produces orders, specific application, flexibility over consistency, ad-hockery
Can an adjudication overturn a rule?
yes, but when it does application is only prospective
APA 556 and 557
Formal rulemaking, slow and more like a court case, notice in the form of publication in the fed. reg and then hearing on the recond, in front of an ALJ
556/557 hearing
On the record, in front of an ALJ, oral argument not required if no party would be prejudiced, parties may submit arguments, ALJ typically issues recommendation or tentative decision, agency ,ay by general rule or in specific cases make its own decision based upon the certified record befor the ALK, ALJ’s decision may be appealed to the agency
Vermont Yankee
Hybrid rule making, statute or agency policy may impose greater than 553 procedures, but courts cannot add procedures beyond minimum in APA. no monday morning QBing
Non-legislative rules
interpretive rules and general statements of policy (exempt from N&C rulemaking)
Interpretive rule
issued by an agency to advise the public of A’s construction of the statutes and rules which it administers; legal effect test from MSHA
Legal effect test (MSHA)
in the absence of the rule, no adequate legislative basis for enforcement action, published in CFR, agency explicitly invokes its leg authority, rule effectively amends a prior legislative rule
General statements of policy
Gen policy is neither the product of a RM or Adj, but rather presages an upcoming RM or announces a course of action the A intends to follow in future adj, not established binding norm
Magic words for formal rulemaking
“When rules are required by statute to be made on the record after opportunity for an agency hearing” (strictly construed, only when the statute’s language is explicit and unambiguous.
Limitations on rulemaking
ultra viers, bias, ex parte contacts, undue influence
When is a rule final?
Bennett 2 prong: action marks the consummation of the agency’s decision-making process and the action is one by which “rights or obligations have been determine” or from which legal consequences will flow
JR of fact finding
Reviewing court must consider the record as a whole, and may defer to the agency’s findings of fact only if those findings are supported by substantial evidence
What is substantial evidence?
Enough relevant evidence that a reasonable mind might accept it as adequate to support a conclusion but again must consider whole record, including contrary evidence
3 ways to attack agency action
attack reasoning as arb and cap, attack enabling statute as unconst, the agency misread enabling statute and therefore violated it; avoidance canon
4 factors that are arb. and cap
reliance on factors that Congress did not intend for the agency to consider, failure to consider an important aspect of the problem, offering an explanation for agency’s decision that ran counter to the evidence, or offering an explanation so implausible that it couldnt be ascribed to a difference in view
Officer
Anyone who exercises significant authority pursuant to the laws of the United States or who performs a significant governmental duty pursuant to the laws of the United States
Does it have force and effect of law? (legislative or nonlegislative)
- Whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to ensure performance of duties; 2. Whether the agency has published the rule in the CFR; 3. whether the agency has explicitly invoked its legislative authority; 4. whether the rule amends a prior legislative rule. If answer to any of these is yes, legislative rule.
Things that are not reviewable
agency action that is not final, agency’s choice not to enforce
Gundy non-delegation factors
statute text, context surrounding it, purpose of the statute, legislative history to interpret
Article III Vesting Clause
Judicial power of the US shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish
Article II Vesting Clause
The executive power shall be vested in a President of the United States
Article I Vesting Clause
All legislative powers herein granted shall be vested in a Congress of the US
706(2)(A)
arb and cap review
706(2)(E)
substantial evidence
Scope of review
intensity in which standard of review will be applied
Bennett prong 2
“rights or obligations have been determined” or from which “legal consequences will flow.”
Nixon constitutional conflict
If legislative branch obeys the judicial branch
Where does NDD come from
Vesting Clause of Article I and N&P Clause; tri-part structure of const. also helps
Why does NDD doctrine exist
- complexity and need for expertise, 2. political accountability reasons, 3. time-consuming and laborious
Arguments for NDD with more bite
More bite group thinks that citizens are being distanced from the named branches of gov., avoid junior varsity Congress
Pro-legislative veto arguments
hold agencies accountable, get things done, provide legitimacy
Anti leg-veto arguments
anti-democratic, interferes with executive branch, drains agency of independence
What does it mean to be legislative?
purpose and effect of altering legal rights; doing something legislative in nature without going through hoops is unconstitutional
Second prong of Bennett; what does it really mean?
the action at issue give rise to “direct and appreciable legal consequences”
Why memo in Ca toxins case was not final
neither EPA not regulated sources can rely on it as an independently authoritative in any proceeding; state permitting authorities face no penalty or liability of any sort for ignoring it, and state permitting authorities and regulatory beneficiaries have clear statutory avenues by which to challenge a permitting decision adopting the reasoning of the memo and seek judicial review if EPA fails to sustain their challenges
Standard of review for formal stuff
Substantial evidence
Standard of review for informal stuff
Arb. and cap.
Interpretive Rule
Interprets either statute/prior regulation of agency (existing document), no force of law, avoids notice and comment, clarifications to regulated parties, Skidmore deference, violation not enough for official sanction, but can attempt to enforce
Legislative Rule
Notice and comment required, rules implementing the statute, force of law, enforceable, Chevron deference
Distinguishing Londoner and Bi-Metallic
Number of people, nature of dispute facts, theory of the government that underlies the const
Londoner
Likely an adj. where small number of people are affected, in each case upon individual grounds
Bi-Metallic
Whole community affected equally, like a rulemaking
Exam considerations
- Classify agency action 2. APA limitations on action? 3. Const. limits on action? 4. Pre-conditions for JR? 5. Nature of challenge? Hook up standard of review
Article III, s. 2
Judicial power covers “cases” and “controversies”
Standing
Injury must have been actual or imminent, concrete, not an intangible or speculative harm. Fairly traceable to the defendant’s conduct, and a favorable decision from the court will redress the injury
Ripeness
Addresses whether the suit was brought too early. 1. Fitness of the issue for judicial decision and 2. hardship to the parties of withholding court consideration
Not “fit” for ripeness
If Congress provided an agency review process that parties must go through before proceeding to court, failing to go through that process may indicate an issue is not fit for judicial decisions
Mootness
Case or controversy has been resolved
Humphrey’s Executor
Pres plenary removal authority as granted by Art II (implied) doesnt extend to quasi legislative or quasi judicial officials in the executive branch such as trade commissioners, and accordingly, C may limit removal authority of those individuals by statute
Free Enterprise Fund
Two layers of for-cause restrictions violates the separation of powers, court severed this part of the statute and allowed rest of act to stand but without for-cause restrictions
Chadha
Legislative providing Congress with a one-house veto over an action of the executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism
Buckley
Appointments clause of Art. II vests the power to appoint principal officers of the US exclusively in the President. Congress does not share this power under the N&P Clause of Article I. Congress exceeded its powers by authorizing its own officers to make appointments to the FEC
Morrison
A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting the Attorney General from removing the officer without good cause does not violate separation-of-powers principles.
Inferior officer test
subject to removal by higher E branch official, only employer to perform certain limited duties (less important according to Scalia), limited jurisdiction only to certain fed officials accused of certain serious crimes, limited tensure
Edmond
JAG guys are not principal officers and subordination is key.
Noel Canning
President may invoke the recess appointments clause to fill vacancy that exists during any sufficiently long senate recess
Myers
Postmaster case; Const. grants the pres sole power to remove executive officers
Free Enterprise v. PCAOB
A President may not be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, because such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed.
Seila Law
Congress can make a single director, or impose for cause restrictions, but not both. Court severed this part of the organic statute and allowed CFPB to stand; remains unclear whether the rule is categorical for single-director independent agencies or whether it depends on how much executive authority is wielded by the single director
Chevron
Step zero-two
Mead
Step zero for Chevron–was the action done through rulemaking, adjudication, or something that looks like one of those things?
Goldberg
Kelly got public assistance, got letter he was no longer entitled, abruptly terminating violated DP, pre-termination hearing necessary? Yes, property interest protected by DP, public assistance is critically important, erroneous denial would affect their ability to challenge, government has its own interest in making sure people are not wrongly denied. DP requires pre-termination hearing before benefits denied. Decision based solely on evidence provided at hearing
Mathews
Balancing test; Eldridge got disability benefits and became ineligible based on questionnaire and doctor comments. Eldridge responded in writing but was terminated anyway. no pre-deprivation hearing necessary. Disability not based on financial need so if deprived, wont be out on the street. detailed questionnaire covered process. pre-termination hearing would be of little value. pre-term would be financially burdensome to gov.
Roadway Express
Application of Mathews; employer did not deserve an evidentiary hearing but investigators had to give the company the evidence that was used to support its determination. At the very least the company should be aware of the evidence against it, so that it could appropriately respond to the evidence
Encino
Not entitled to Chevron deference if procedurally defective! Agency went against standard industry interpretation and did not say why, so that interpretation is not eligible for chev def
DACA
Two issues: whether the APA claims are reviewable (yes; not a non-enforcement) and whether the recission was arb. and cap. (yes–reasoning was ad hoc. and only focused on benefits and not on forbearance, should have discussed reliance interest, and therefore did not provide sufficient explation)
AMC
PPLS were interpretative. Test: 1. whether in the absence of the rule there would not be an adequate legislative basis for enforcement action; 2. whether the agency has published the rule in the CFR; 3. whether the agency has explicitly invoked legislative authority; 4. whether the rule amends a prior legislative rule
Center for Auto Safety
Regional recall case–these were policy guidelines that did not have any legal consequences and therefore cannot be seen as final agency action or a binding legal norm. Reflect NHTSA’s views but do not change character of the guidelines–words like “in general” and “may be permissible” were used. Author of guidelines never had the authority to issue guidelines with a binding effect
CA Comm Against Toxics
Aflatoxin action levels are legislative rules, not what the agency might do in the future but what they are doing RIGHT NOW
Overton Park
secretary’s act does not fall under the exception for committed to agency discretion by law under 701(a)(2); informal adjudication = arb and cap review
Chenery I
substantive attack (no support for order)
Chenery II
procedural attack (cannot enforce order without substantive rule)
Universal Camera
A court should defer to a federal agency’s findings of fact if they are supported by “substantial evidence on the record considered as a whole”
Heckler
701(a)(2) of APA bars judicial review of agency action committed to agency discretion by law–failure to enforce is not reviewable
ADAPSO
Injury for standing must be within zone of interests of the agency. Data processing sellers were within zone of interest when regulation construed to not exclude banks from selling the same thing
Exact words for Bennett prong 2
“rights or obligations have been determined” or from which “legal consequenecs will flow”
Organic/Enabling Act
Creates and defines and empowers agency. May also limit scope of agency action and delegate rulemaking power
Single-headed agency
One person at top of organization chart (all cabinet level)
Multi-member
more than one person sharing decision authority
Executive agency
agency head serves at pleasure of president and is removable, tend to eb more politically involved
Independent
Tenure set, removal only by cause like misconduct or incompetence, not policy problems, more bipartisan
APA 553(b)
Must publsih notie of the proposed rule in the Federal Register: statement of time, place, and nature of public rulemaking proceedings, reference to legal authority under which the rule is proposed, and terms/substane of the proposed rule or a description of the subjects and issues involved
APA 553(c)
After publishing notice, must give interested people the opportunity to submit comments. The agency must consider these comments and once rule is promulgated, write a concise general statement of their basis and purpose
APA 553(c)
After publishing notice, must give interested people the opportunity to submit comments. The agency must consider these comments and once rule is promulgated, write a concise general statement of their basis and purpose
Trump v. Mazars
Balancing Congress duty to gather information to consider possible new laws vs. President’s privacy and ability to be free of attacks from politicla enemies
Trump v. Mazars balancing test
Must consider: whether asserted legislative purpose warrants involving the president and his papers, whether the subpoena is no broader than reasonably necessary to support legislative objective, look at if it would actually advance a valid legislative purpose, burdens on the president. Pres does have some leitimate interests in privacy; Congress cannot cripple pre in the guize of legislative research
Frankfurter executive gloss
Congress quietly allows executive to act in a certain way for a long time, conceding some of its powers
Trump v. Mazars
Balancing Congress duty to gather information to consider possible new laws vs. President’s privacy and ability to be free of attacks from political enemies
Trump v. Mazars balancing test
Must consider: whether asserted legislative purpose warrants involving the president and his papers, whether the subpoena is no broader than reasonably necessary to support legislative objective, look at if it would actually advance a valid legislative purpose, burdens on the president. Pres does have some legitimate interests in privacy; Congress cannot cripple pre in the guise of legislative research
Frankfurter executive gloss
Congress quietly allows executive to act in a certain way for a long time, conceding some of its powers
Frankfurter executive gloss
Congress quietly allows executive to act in a certain way for a long time, conceding some of its powers
Functionalists
Focus on balancing the inevitable overlap of powers to preserve the core FUNCTION that the Constitution applies to each branch. Action is okay if it does not interfere with other department functions, mainly concerned with the core three branches.
Formalists
Emphasizes the necessity of maintaining three distinct branches of government, each with delegated powers from the vesting clauses. Step 1: Formalist will identify the power being exercised; legislative: judicial, or executive. Determine whether the appropriate branch is exercising that power in accordance with the Constiution.
Legislature controlling agencies
statutory override or formerly, legislative veto
Congressional statutory override
Can either amend the organic statute to eliminate agency discretion or agency itself. Can also override specific exercise of that authority. Have to go through typical channels of bicameralism and presentment
How is rulemaking protected from Chadha fate?
RM is not exactly like legislating; executive and has checks (judicial review)
Test for what is officer
exercises sig. authority pursuant to the laws of the United States
Test for what is officer
exercises sig. authority pursuant to the laws of the United States
Not reviewable because agency must do more
Finality/ripeness
Not reviewable because challenger individual or organization must do more
Exhaustion
Purpose of timing doctrines?
- Recognize that Congress had placed the primary responsibility for deciding matters in the hands of the agency 2. To assure the expertise and fact finding abilities of the agencies would be capitalized on; and 3. to limit the number of cases coming to courts by eliminating cases that could be disposed of by agencies
704 Finality
Unless agency statute says otherwise, agency decision must be final (Bennett test)
Ripeness
Fitness and hardship. Fit for review, appropriate for judicial resolution and there is hardship to the parties if relief is denied
Things to consider re injury
Not generalized, felt by everyone (tax burdens), can be widely shared by still concrete, injury must be within zone of interest of the agency*?
Things to consider re injury
Not generalized, felt by everyone (tax burdens), can be widely shared by still concrete, injury must be within zone of interest of the agency*?
Typical features of agency
Headed by multimember commission whose members have fixed, staggered terms. No more than a simple majority of the commission members may come from one political party. Members may be removed from their positions only for good cause.
Exceptions to rule that non-Article III courts cannot do Article III stuff
territorial courts, courts-martial, and courts that adjudicate certain disputes of “public rights” (disputes arising between the government and persons subject to is authority in connection with the performance of the const. functions of the executive or legislative departments and only to matters that historically could have been determined exclusively by those departments
Formalist Article III test
Public right–individual v. government
What powers did Truman think he was acting with in Steel Seizure?
Necessity, take care clause, chief executive and miliatry
Formal rulemaking bullet points
On the record rulemaking, trial type rulemaking, 553(c) sends you to 556 and 557, Chevron deference applies
Formal adjudication bullet points
Trial type adjudication, 554, 556, 557, if statute mandates procedure, Chevron deference applies
Informal rulemaking
notice and comment rulemaking, on the record rulemaking, 553, chevron deference applies
Informal adjudication
not really in APA, Skidmore deference applies
When exhaustion is not required
- when it would cause undue prejudice to the protection of the rights at issue, when the admin agency lacks the power to grant effective relief, exhaustion would be futile because the admin body is biased
Vermont Yankee
Courts cannot impose additional requirements beyond 553
American Radio
Agency may not redact or omit data or information that contradicts the information that the agency relied on, the agency cannot leave out data that calls into question the basis that the agency relied on. Must provide the public with information regarding the agency’s thought process, including information that the agency didn’t like but still relied on, n order for the public to be able to meaningfully comment
Logical outgrowth test
Is the final rule the logical outgrowth (was it foreseeable) from the proposed rule? Look at whether the final rule is consistent with the regulatory strategy that was apparent in the notice itself or if there was any other signal from the agency that something like the final rule was under consideration, the final rule does not materially alter the issues involved in the rulemaking and did not substantially depart from the substance of the proposed rule
Choice between rulemaking and adjudication
Rulemaking is preferred but requiring it every time would make the admin process inflexible. The choice between ad hoc policy making through adjudicaiton and rulemaking is one that is in the discretion of the agency. Reviewed under 706 abuse of discretion, reviewable by courts for the reasonableness of the agency decision
What exactly is legislative veto
Allowed one house of Congress to legislate (alter legal rights, duties, and relationships) and you cannot do that without bicameralism!
Florida East Coast
Senate hustled ICC to work faster and promulgate a rule to address boxcar shortage–attack was that the word “hearing” should have triggered formal stuff.
What does hearing really mean (now)?
Could just be a paper hearing, 556(d) of APA says that an agency does not have to do oral exam during a hearing if it won’t unduly prejudice the party
Final rule substantially different than proposed rule?
Agency can be attacked on failure to issue a second notice and be clear how much their thinking has changed, so would be viewed as arb. and cap.
Substantive attacks on rules
Adequately supported by data? Ultra vires?
Chemical Waste Management
Chevron applies to agency interpretation of what process is required of them. If it says “on the record” then that satisfied Chev step 1 because there is Congressional intent.
Chenery I principle
Courts “may not accept appellate counsel’s pot-hoc rationalizations for agency action”
Chenery II principle
“The choice made between proceeding by general rule or by individual, as hoc litigation is one that lies primarily in the informed discretion of the administrative agency”
substantial evidence
more than a mere scintilla
Can agencies make rules through adjudications?
Yes–Chenery
3 ways to attack a rule
procedural, statutory interpretation, substantive
Skidmore deference factors
degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position
Rulemaking through adjudication
case of first impression, whether a new rule is abrupte departure from well est. practice, extent party subject to new rule enforcement relied on old rule, burdeon on party, statutory interest despite reliance
What party must do in an informal rulemaking
Explain decision reasons (via 706 and Overton), adhere to 5th amendment limitations, keep ALJs independent, but can restrict their decisions with agency rules, agency does not have to separate investigative and decision-making responsibilities
Similarities between arb. and cap and substantial evidence
Both require court to carefully look at admin agency’s decision while according it a fair degree of deference
when is de novo review available?
adjudication with bad fact finding, agency attempts to impose sanction due to a nonadjudicatory proceeding
ALJ findings of fact?
agency not required to defer
standing canned response
To establish standing, the plaintiff must show (1) that is has suffered an injury in fact, meaning an injury that is particularized and actual or imminent, that there is a causal connection between the injury and the conduct complained of, and that a favorable decision will likely redress the injury.
Schor factors expanded
re first two steps, consider fairness to litigants and checks and balances
CFTC v. Schor
CFTC can exercise limited jurisdiction over claims that are incidental to adjudication claims that are willingly submitted by the parties without unduly trammeling the judiciary
Challenges to agency’s notice
Proposed rulemaking failed to disclose all relevant data that animated agency’s thinking, agency failed to adequately disclose the nature of its proposals and ended up adopting a rule that no one could have seen coming, parties might contend that the rule finally adopted by the agency that a new round of comments is required
when is a final rule a logical outgrowth
only if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice and comment period
Traditional Rule for Exhaustion
One must exhaust all administrative remedies (including admin appeals) before seeking judicial review in Article III court
Modern Rule if Exhaustion is required
agency statute or regulation must specify exhaustion of admin remedies for parties to exhaust under APA, party not required to exhaust where: requiring administrative remedy would be untimely or come too late, remedy not sufficient because of doubt to whether agency is empowered to grant effective relief, where administrative body is biased or has otherwise pre-determined the issue. If statute does not require, no exhaustion required
If required, did the plaintiff do it?
balance, for agency: court avoidance of interrupting administrative process, allow agency to exercise expertise, allow agency to exercise discretion, efficiency, avoid side-stepping admin process, allow admin to make factual record. For the plaintiff, harshness (especially in crim proceeding)
Why does Congress delegate?
Permanency of the institutions involved, agency can change more rapidly than Congress, expertise for some of the decisions, efficiency and effectiveness, avoid accountability for unpopular decisions
Youngstown highest ebb from Klein
President acts pursuant to express/implied COngressional authority and should be afforded the most deference. Review standard is widest level of judicial interpretation
Youngstown middle ebb from Klein
Absence of grant or denial of authority; President is acting on his own independent powers. Review is on a case by case basis and cone with contemporary sense of necessity
Youngstown lowest ebb
Measures are incompatible with the express/implied will of Congress and reviewed with caution
Morrison 4 factors
subject to removal by higher official, perform only certain, limited duties, limited jurisdiction, and limited tenure
Rulemaking features from Rich
Prospective, produces a rule, more like law/legislation, general applicability, consistency over flexibility
Adjudication features from Rich
Trial type proceeding, produces orders, more like judicial type decisions, specific application, precedential effect in later adjudications, flexibility over consistency, ad-hockery, adjudication may not overturn a rule, but may be used to overturn a prior adj
