Admin Law Flashcards

Question

Chevron

Answer 1

STEP 1: Did Congress speak directly to the question at issue? - If C’s intent is unambiguous, then the question is answered; - Plain meaning- text, context, structure - Other statutory interp principles - statute’s purpose, legislative history, etc.\ -- If unambiguous, forever locks in the agency; thus, agencys often prefer to win at Step 2 STEP 2: If ambiguous, is agency’s interpretation reasonable construction of the statute? - if yes then defer Reasonable = permissible, not necessarily court’s preference

Answer 2

RATIONALE - when C passes ambiguous terms, its implicitly leaving gaps for agency experts to fill; those experts should fill gaps, not court Though many reasons for gap (consciously left for agency, Congress too divided to fill the gap), not relevant to court’s inquiry POLICY - party cannot wage battle in court that it lost in agency process

Answer 3

1) Notice (“general notice or proposed rule making shall be published in Fed Reg” - 553) and 2) Comment (“agency shall give interested persons an opp to participate in rule making through submission of written data, views, with or without opp for oral presentatino…” 553)

Answer 4

Rulemaking = 2 substantive decisions: 1) what are relevant facts [in rulemaking context, facts are in terms of future predictions (will such pollution cause X harm? will seatbelts save lives?- some of this involves expertise of agency, and prognosticating/not certain determinations of fact] 2) what rule, in light of facts, best furthers statutory mandate

Answer 5

Congress req in statute the agency use more process than 553 but less than formal under 556/7

Answer 6

RULE - reviewing courts (of agency decisions) cannot add additional procedure that is not required by the statute that governs the agency (maybe can per constitution or other extremely compelling circs, undefined) agency may impose own add’l procedure but court may not Reasons why court should not impose more procedure judicial review would be unpredictable if courts impose own best view of what agencies should be doing in rulemaking; so agency may just do all procedures and get into formal rulemaking, whcih makes infomral unecessary "monday morning QBing" pushes agencies to adopt more procedures up front, contrary to idea of informal ruelmaking Doing so misconcieves the standard of review for agency rule - this is not a trial; Agencies have expertise in the field, and can make policy decisoins pursuant to that expertise

Answer 7

1. presume formal unless statute otherwise specifics 2. presume informal - if statute does not use magic words "hearing on the record" 3. Apply Chevron to agency decision about whether it must engage in formal (but query whether this makes sense cuz agency has incentive to use informal cuz its easier on them)

Answer 8

ex parte of interested parties outside agency cannot comm relative to the merits STANDARD - if ex parte comm irrevocably tainted the agency decision making so as to make the ultimate judgment of agency unfair either to innocent party or to public interest the agency supposed to protect; Factors - 1. gravity of ex parte comm [e.g. threat?] 2. whether contacts may have influenced the agency’s ultimate decision 3. whether the party making improper contacts benefitted from agency’s ultimate decision 4. whether contents of comms were unknown to opposing parties who thus had no opp to respond 5. whether vacation of agency decision and remand for new proceedings would serve useful purpose

Answer 9

Usual practice is not split enforcement - APA allows head of agency to engage in both prosecutorial and adjudicative functions (see exception just above) -But in OSHA and MSHA those functions are split w/split enforcement, agency may appeal (whereas normally it cannot, cuz that's the agency appealing its own decision which doesnt make sense)

Answer 10

ex parte of interested parties outside agency cannot comm relative to the merits STANDARD - if ex parte comm irrevocably tainted the agency decision making so as to make the ultimate judgment of agency unfair either to innocent party or to public interest the agency supposed to protect; Factors - 1. gravity of ex parte comm 2. whether contacts may have influenced the agency’s ultimate decision 3. whether the party making improper contacts benefitted from agency’s ultimate decision 4. whether contents of comms were unknown to opposing parties who thus had no opp to respond 5. whether vacation of agency decision and remand for new proceedings would serve useful purpose

Answer 11

Due Process requires notice and opp to be heard, so ex parte is a problem ultimately inquiry is whether ex parte comm is so substantial and so likely to cause prejudice that no P can fairly be req to be subjected to a deprivation of property under such circumstances (Stone p239) STANDARD: if "new and material info" given to decider based on ex parte, that's a problem - whether ex parte comm introduces new information - whether P knew of error and had chance to respond - whether ex parte comm was of type likely to result in undue pressure upon deciding official to rule in a particular manner

Answer 12

Depends on: 1. # of people affected by decision and - ---if lots of people, not administratively feasible for individualized determinations in a due process hearing 2. factual basis for determining impact [must be adjudicative facts] - ---- adjudicative facts [who did what where when how why w/what motive/intent] then individualized - ---- legislative facts = not individualized and no DP right to hearing (general facts that help tribunal decide policy questions), and (must challenge decision through political process) E.G. [Bi-Metallic vs. Londoner] - when agency imposed tax on households cuz of their individual property lines were in taxable zone [adjudicative facts], that was individualized (Londoner) When agency taxed all property w/in city limits [legislative facts], that was not individualized Legislative fact determinations not individualized cuz all individuals do not have a right to be heard on issue which concerns all - that’s politics baby

Answer 13

must have legit claim of entitlement to property; | ----req more than abstract need/desire for property

Answer 14

Sec. 553 no specific requirement re comment length, time period, etc. but organic statute may have reqs - purpose of NPRM to enable interested persons to comment

Answer 15

Mathews - 1) private interest affected by official action 2) the risk of erroneous deprivation of that interest w/req procedures and the likely reduction of that risk by requiring more/diff procedures 3) public burden/gov interest in using required procedures as opposed to more/diff procedures Additional consideration: ultimate balance is determination when judicial type procedures must be imposed on administrative action to assure fairness

Answer 16

Horowitz (med student dismissed in final year for academic issues, w/o hearing) - p266 EN 2/10 Held: process was sufficient b/c decision was careful and deliberate [academic setting] Private interest - liberty (impaired her opp to continue medical education - court ignored this question cuz determined process was adequate) Process given vs. desired - given - notice she might be dismissed; decision was careful and informed; Gov interest - Academic integrity in dismissing student who has poor skills/ratings, smells (unprofessional), absentee Balancing - cuz this is academic setting, her process was sufficient No hearing req where suspension for academic performance, which is judged subjectively by academic judgment of school officials and is thus diff than evaluation of disciplinary decision Context - academic vs. discipline - Academic decisions are more subjective and don’t lend to type of hearing procedures in discipline context

Answer 17

Osteen - p271 - EN 2/10 - (simple assault case) student cannot get lawyer to litigate, that's a burden on gov; risk of error low cuz no "subtleties of law or fact" in the case, it was simple case of assault

Answer 18

STANDARD - must show the adjudicator’s mind is “irrevocably closed” YES biased: - adjudicator has pecuniary interest in the outcome - where adjudicator has been target of personal abuse or criticism from the party before him - where adjudicator has already indicated he has decided the facts before the hearing NOT biased: prior expression of legal opinion

Answer 19

“an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter” Sec. 551(14)

Answer 20

no deference to ALJ credibility determination is: - based on speculation rather than evidence in record - drawn from insufficient or incomplete evidence - indications the ALJ is biased Appealing Board’s decision to reverse ALJ - requires derivative inference (drawn from evidence itself) - Board is not in position to judge demeanor so need to articulate sound reason based on derivative inferences to justify its decision to reverse ALJ

Answer 21

1) agency fact finding must have a “warrant in the record” (i.e. be supported by substantial evidence) and 2) agency application to those facts must be reasonable

Answer 22

Determine by two steps: 1. whether Congress has defined term (if yes, then its purely legal) 2. if Congress did not define, then question is one of specific application of broad statutory term and deferential review of agency decision is appropriate

Answer 23

Arbitrary and Capricious Review: whether decision was based on consideration of relevant factors and whether there has been a clear error of judgment ---this is searching and careful inquiry, but ultimate standard of review is a narrow one --> court is NOT empowered to substitute is judgment for that of the agency Ex of arb & capricious - - not adequate and reasoned explanation - inconsistent decisions in ID situations

Answer 24

Sierra Club - DC Cir - displaces HBO - after VT Yankee RULE - central relevance test: all documents or communications that are of central relevance must be disclosed Caveats: communications w/ Pres only need to be disclosed if they form basis for decision (Congress expects intra-exec branch communications, so they are ok unless explicit stat ban) to overturn rule based on Congressional pressure, must show: 1) the content of the pressure upon the Secretary is designed to force him to decide on facts not made relevant by Congress in the applicable statute; 2) the secretary’s determination must be affected by those extraneous considerations. HBO v. FCC - DC Cir - before VT Yankee [displaced by Sierra Club] RULE - after NPRM, agency officials involved should refuse to discuss w/interested parties; if ex parte contacts nonetheless occur, any written docs or a summary of oral convos must be placed in public file immediately so interested parties may comment thereon

Answer 25

Weigh unfairness to D (who had no warning of policy change) to benefit to public (Chenery): 1) whether case is of first impression (if yes, then retroactive b/c that gives incentive of litigants to advance new theories or to challenge outworn doctrines;) 2) whether new rule represents abrupt departure from well established practice 3) extent to which party against whom the new rule is applied relied on the former rule 4) degree of burden which a retroactive order imposes on a party; and 5) statutory interest in applying a new rule despite reliance of a party on the old standard

Answer 26

Pros - efficient - no rigamarole of notice/comment - regulated entities follow it anyway - eliminate the surprise prob we saw in GE case - "bread and butter" of administrative process Cons - - lack of public input, - Public may rely on nonleg rule and be adversely affected if agency changes position (cuz its not binding it may change its mind) and got whipsawed

Answer 27

"binding effects test" TEST: (American Hospital v Bowen - p348, EN 2/25) - does rule impose a new duty, or merely announce intention to impose new duty? 1. present effect, as in imposes rights/obligations? (if yes then leg rule) 2. does agency retain discretion? (if yes, then just policy statement) - - ISS - whose discretion? different opinions about whether the discretion is regarding the top official or lower officials (TX case thinks that if cuts off discretion of lower officials then its a leg rule and req notice/comm) 3. agency characterization is a factor but not dispositive

Answer 28

Defined: interprets or clarifies the nature of the duties previously established by an agency’s statutory mandate or by agency’s regulation Characteristics: - interp rule announces how an existing law or statute is binding on those subject to it - not itself binding; - does not est new duties (unlike legislative rule, that req notice & comment) - courts give agency's interp deference, so parties ignore such interps at own peril

Answer 29

Depends on whether rule has “legal effect”: 1. Source of obligation? 2. whether agency invoked its legislative auth 3. whether rule amends a prior legislative rule

Answer 30

Mortgage Bankers v. AK Hunters If it was a non-legislative rule and agency flip flops, no need for notice & comment b/c it’s a non-legislative rule (Mortgage Bankers) AK Hunters old rule - must go through notice & comment to be changed if: - Definitive agency interpretation, - relied on heavily, - significant revision of old interpretation

Answer 31

1. the APA, by its terms, requires notice-and-comment procedures only for the issuance of “legislative rules,” that is, rules that impose binding new legal requirements, and not for interpretive rules, which merely “advise the public of the agency’s construction of the statutes and rules which it administers,” and “‘do not have the force and effect of law.” 2. Nor does the APA distinguish between initial and subsequent agency action. - Courts therefore cannot add a notice-and-comment requirement for interpretive rules that the APA itself does not provide. 3. VT Yankee forbids AK Hunters rule 4. Special Reliance may survive - Statute allows “safe harbor” for parties who rely on nonlegislative rule that is changed (Mortgage Bankers) 5. Recourse for change of position is not court, but challenging the application of the new interpretation as arbitrary and capricious cuz the agency didnt properly consider its reliance interests

Answer 32

706(2)(c) - courts hold unlawful agency action not in “excess of statutory jurisdiction, authority, limitations, or short of statutory right” Chevron

Answer 33

1) US, as sovereign, is immune from suit unless it consents to be sued; 2) separation of power - allowing estoppel based on Executive advice invades Legislative province

Answer 34

Chevron or Skidmore? A. Barnhart - Newest Case - Chevron if: 1 Congress left a gap; 2 the expertise of agency; 3 the importance of question to administration of the statute, 4 the complexity of that administration, and 5 the careful consideration the agency has given the question over long period of time B. Mead 1. it appears Congress delegated auth to the agency to make rules carrying the force of law 2. that agency interp claiming deference was promulgated in exercise of that authority C. Christenson 1. apply Chevron to notice/comment & formal adjudication 2. Skidmore to everything else D. Scalia - Chevron almost always applies to agency interp of statutes [but he rejects deference to agency interp of regulations, which incentivize agencies to issue ambiguous regs - he's alone]

Answer 35

where agency uses nonlegislative rules to adopt the interpretation of statute - given experience of agency, its interp should be taken into account - The weight accorded to an administrative judgment in particular case will depend on: 1 thoroughness evidence in its consideration 2 the validity of its reasoning 3 its consistency w/earlier and later pronouncements and 4 all those factors which give it power to persuade, if lacking power to control

Answer 36

Auer/Seminole Rock: -- given experience of agency, its interp of an ambiguous regulation is "controlling weight unless it is plainly erroneous or inconsistent with the regulation” Caveats: 1) anti-parroting rule - if agency takes ambig statute then parrots in own regs, then no deference; 2) if agency gives many diff reasons for its interp, and its interp was not obvious at the time, then retroactive application is not appropriate

Answer 37

1. Constitutional Standing 2. Exclusions in 701(a) - 1) statute precludes; 2) action committed to agency discretion by law 3. Agency action - rule, order, sanction, relief, or equivalent or denial thereof, or failure to act - Sec. 551(13) 4. Cause of Action/Zone of Interest 5. Timing [final action, exhaustion, ripeness]

Answer 38

STEP 1: Did Congress speak directly to the question at issue? If C’s intent is unambiguous, then the question is answered; Plain meaning- text, context, structure Other statutory interp principles - statute’s purpose, legislative history, etc.\ If unambiguous, forever locks in the agency; thus, agencys often prefer to win at Step 2 STEP 2: If ambiguous, is agency’s interpretation reasonable construction of the statute? - if yes then defer Reasonable = permissible, not necessarily court’s preference

Answer 39

where agency uses nonlegislative rules to adopt the interpretation of statute - given experience of agency, its interp should be taken into account - The weight accorded to an administrative judgment in particular case will depend on: 1 thoroughness evidence in its consideration 2 the validity of its reasoning 3 its consistency w/earlier and later pronouncements and 4 all those factors which give it power to persuade, if lacking power to control

Answer 40

substantial evidence - uphold rule if the agency’s decision is reasonable, supported by evidence in the record of a trial-like proceeding p163

Answer 41

“substantial risk” OR “certainly impending” future harm - Susan B. Anthony (says ‘or’ so lesser standard of “substantial risk” is the standard) yes - injury to persons' enviro, aesthetic, or recreational enjoyment of a place not - degradation of enviro solely cuz your organization is interested in enviro not - taxpayer not injured by agency's illegal spending of $

Answer 42

arbitrary and capricious - [applies both to making rule and rescinding rule - State Farm] - unless statute req otherwise STANDARD: whether the agency examined relevant factors and articulated a satisfactory explanation for its action including a rational connection b/t the facts and their choice - Overton Park/State Farm

Answer 43

rule, order, sanction, relief, or equivalent or denial thereof, or failure to act - Sec. 551(13)

Answer 44

the process for formulating an “order”

Answer 45

Standard - "whether the interest sought to be protected by P is arguably w/in zone of interest to be protected by statute" (NCUA; Pottowami) - “Not especially demanding standard” (Pottowami)/presumptively reviewable - “test forecloses suit only when P’s interests are so marginally related to statute's purpose that it cannot reasonably be assumed C intended to permit the suit

Answer 46

“order” = a final disposition of agency in a matter other than rulemaking but including licensing”

Answer 47

party understood the issue and afforded full opportunity to justify his conduct/respond to material issues of fact; look to overall context- 210 {EN 2/8-2/9} Genuine opp gives clear indication of: 1) each violation, the reg governing the violation and the dates; 2) date on which applicant got property notice of violation; 3) date on which violation was corrected/observed to not be corrected Notice should be clear and describe the evidence the party must put forth (unless that evidence is obvious, as in Copanos v FDA p211)

Answer 48

1 consummation of agency’s decisionmaking process - it’s not of a tentative/interlocutory nature 2 Legal consequences or rights/obligations determined

Answer 49

1. fitness for judicial review (a. purely legal = fit; b. final agency action) 2. hardship to the parties of withholding court consideration NOT purely legal - "further factual development would advance our ability to deal w/legal issues" (National Parks) Hardship to the parties of withholding court consideration: 1 Look for impact on parties’ primary conduct 2 Look for immediate impact on party Yes hardship - P risks prosecution for not complying with Reg, or if comply, must bear costs of changing labels; so lose-lose for P (holding threat of future prosecution over P's heads = hardship) Yes hardship - where reg req immediate change by P = hardship (Abbot) NOT hardship - National Parks - re future disputes, not about what P must do today/day to day biz

Answer 50

Darby RULE - exhaustion is not required unless expressly req by statute or agency rule (Sec. 704 - "except as otherwise expressly required by statute...unless agency otherwise requires by rule") - feels like VT Yankee too - Congress spoke clearly to reqs and court cannot impose judge-made exhaustion into APA cases where APA says parties may get judicial review

Answer 51

Congress intended to be broad - anyone whose interest is greater than general interest the public as a whole; does not include public who makes casual expression of opinion; p229-230

Answer 52

1. individualized decisionmaking; 2. either property or liberty interest

Answer 53

must have legit claim of entitlement to property; req more than abstract need/desire for property

Answer 54

Substantial Evidence Standard: Sec. 706(2)(E) - highly deferential - reason based on whole record - whether a reasonable person would accept it as adequate - court will not reweigh evidence nor substitute its own views for the agency’s views

Answer 55

freedom from stigma that would foreclose employment opportunities STIGMA TEST - when accusations "so damaging as to make it difficult for P to escape stigma of the charges" (Shands 258) STIGMA PLUS TEST - harm to reputation PLUS other disability (loss of job or legal disability (like from purchasing alcohol))

Answer 56

ALJ credibility determination is: based on speculation rather than evidence in record drawn from insufficient or incomplete evidence indications the ALJ is biased Appealing Board’s decision to reverse ALJ - requires derivative inference (drawn from evidence itself) - Board is not in position to judge demeanor so need to articulate sound reason based on derivative inferences to justify its decision to reverse ALJ

Answer 57

Board articulated a sound reason based on the record for its contrary evaluation of the testimonial evidence If Board gives no sound reason, it’s decision is not supported by substantial evidence and Circuit Court must reverse the Board

Answer 58

1) agency fact finding must have a “warrant in the record” (i.e. be supported by substantial evidence) and 2) agency application to those facts must be reasonable

Answer 59

Choice lies w/informed discretion of agency, which is given great weight - Aerospace

Answer 60

Weigh unfairness to D (who had no warning of policy change) to benefit to public (Chenery): 1) whether case is of first impression (if yes, then not retroactive b/c that would eliminate incentive of litigants to advance new theories or to challenge outworn doctrines;) 2) whether new rule represents abrupt departure from well established practice 3) extent to which party against whom the new rule is applied relied on the former rule 4) degree of burden which a retroactive order imposes on a party; and 5) statutory interest in applying a new rule despite reliance of a party on the old standard

Answer 61

NO, not unless specifically allowed by statute

Answer 62

STANDARD to determine whether rule is so ambiguous party did not have notice (as req by DP): If party could ID w/"ascertainable certainty" the standard the agency expects (by reading regs and other public statements of agency) then party was fairly notified of agency's interpetation - EN 2/25, GE v EPA p334

Answer 63

Pros efficient - no rigamarole of notice/comment regulated entities follow it anyway eliminate the surprise prob we saw in GE case "bread and butter" of administrative process Cons - lack of public input, Public may rely on nonleg rule and be adversely affected if agency changes position (cuz its not binding it may change its mind) and got whipsawed

Answer 64

"binding effects test" TEST: (American Hospital v Bowen - p348, EN 2/25) - does rule impose a new duty, or merely announce intention to impose new duty? 1. present effect, as in imposes rights/obligations? (if yes then leg rule) 2. does agency retain discretion? (if yes, then just policy statement) - - ISS - whose discretion? different opinions about whether the discretion is regarding the top official or lower officials (TX case thinks that if cuts off discretion of lower officials then its a leg rule nad req notice/comm) 3. agency characterization is a factor but not dispositive

Answer 65

Depends on whether rule has “legal effect” 1. Source of obligation? 2. whether agency invoked its legislative auth 3. whether rule amends a prior legislative rule

Answer 66

Mortgage Bankers v. AK Hunters If it was a non-legislative rule and agency flip flops, no need for notice & comment b/c it’s a non-legislative rule (Mortgage Bankers) AK Hunters old rule - must go through notice & comment to be changed if: Definitive agency interpretation, relied on heavily, significant reviosion of old interpretation

Answer 67

A makes definite misrep of fact believing B will rsbly rely and B does, its not fair for A to regain value acquired by B in reliance Detrimental reliance; that was reasonable Reasonable - General rule - those who deal w/Gov are expected to know the law and may not rely on conduct of Gov agents contrary to the law - oral advice = not reasonable to rely, esp if complex topic - written is better cuz requires author to think it through

Answer 68

1) US, as sovereign, is immune from suit unless it consents to be sued; 2) separation of power - allowing estoppel based on Executive advice invades Legislative province

Answer 69

Chevron or Skidmore? A. Barnhart - Newest Case - Chevron if: 1 Congress left a gap; 2 the expertise of agency; 3 the importance of question to administration of the statute, 4 the complexity of that administration, and 5 the careful consideration the agency has given the question over long period of time B. Mead 1. it appears Congress delegated auth to the agency to make rules carrying the force of law 2. that agency interp claiming deference was promulgated in exercise of that authority C. Christenson 1. apply Chevron to notice/comment & formal adjudication 2. Skidmore to everything else D. Scalia - Chevron almost always applies to agency interp of statutes [but he rejects deference to agency interp of regulations, which incentivize agencies to issue ambiguous regs - he's alone]

Answer 70

where agency uses nonlegislative rules to adopt the interpretation of statute - given experience of agency, its interp should be taken into account - The weight accorded to an administrative judgment in particular case will depend on: 1 thoroughness evidence in its consideration 2 the validity of its reasoning 3 its consistency w/earlier and later pronouncements and 4 all those factors which give it power to persuade, if lacking power to control

Answer 71

Auer/Seminole Rock: given experience of agency, its interp of an ambiguous regulation is "controlling weight unless it is plainly erroneous or inconsistent with the regulation” Caveats: 1) anti-parroting rule - if agency takes ambig statute then parrots in own regs, then no deference; 2) if agency gives many diff reasons for its interp, and its interp was not obvious at the time, then retroactive application is not appropriate

Answer 72

1. Constitutional Standing 2. Exclusions in 701(a) - 1) statute precludes; 2) action committed to agency discretion by law 3. Agency action 4. Cause of Action/Zone of Interest 5. Timing

Answer 73

[P’s burden] - an injury in fact that is fairly traceable to illegal action that is likely to be redressed by favorable decision

Answer 74

“substantial risk” OR “certainly impending” future harm - Susan B. Anthony (says ‘or’ so lesser standard of “substantial risk” is the standard) yes - injury to persons' enviro, aesthetic, or recreational enjoyment of a place not - degradation of enviro solely cuz your organization is interested in enviro not - taxpayer not injured by agency's illegal spending of $

Answer 75

ecosystem nexus - insufficient - P claiming injury from enviro damage must use area affected by agency action and not area roughly 'in the vicinity'; sufficient - enviro injuries cause harm distant from area immediately affected by challenged action animal - insufficient - anyone w/interest in studying endangered animals has standing Vocational - Scalia - "beyond all reason" - must have direct contact w/threatened species/source of injury; anyone w/pro interest in such animals can sue; Dissent (and Kennedy) - cuz who cares if the affected elephants are across the world, if they all die then that's direct impact on vocation = injury

Answer 76

Fails prudential standing Scalia - injury must be “particularized” = same injury cannot be widely shared (if everyone’s injury is same lost info, not particularized; but mass tort, w/indiv injuries, then particularized) Majority 1) widely shared injury; 2) abstract/indefinite nature - - eg. NOT gen grievance = loss of info re voting (basic right) = concrete

Answer 77

- "must be likely" as opposed to speculative, that injury will be redressed by favorable decision - tough w/third party action - cuz not sure what third party would do if court rules in my favor (e.g. Lujan, where if Defenders wins, no telling the agencies would follow new interpretation)

Answer 78

proc right is special - lesser showing of injury (“risk of harm”) and redressability ("some possibility" vs likely) Ex: procedural injury is licensing agency fails to get EIS for proposed dam as required by law “citizen suit” does NOT auto give procedural right (Scalia); but Kennedy and Libs say maybe - Congress has power to define injury and causation chain to create case /controversy where none existed before

Answer 79

Standard = "fairly discernible in the statutory scheme" that Congress intended preclude judicial review (Block) [overruling clear and convincing evidence test] Evidence of implicit preclusion: ``` 1 structure of statutory scheme, 2 its objectives, 3 leg history and 4 nature of the admin action involved 5 caselaw interpretations of statute (and congressional acquiescence thereto) ``` Not implicit preclusion - mere fact that some acts are made reviewable should not show implication of exclusion of others, the right to review is too important to be excluded on such slender and indeterminate evidence of congressional intent (Abbott) [applying clear and convincing test] Yes implicit preclusion - - statutory scheme - where complex statute allows review for one group but not another, omitting the other group implies congress meant that group to be precluded (Block) [applying fairly discernible test]

Answer 80

STANDARD - if statute does not give standard against which to judge that discretion (such that a court could determine abuse of discretion) then Congress committed that action to agency discretion by law Presumption against judicial review Also - where agency wholesale decides not to enforce (that rebuts presumption against judicial review)

Answer 81

rule, order, sanction, relief, or equivalent or denial thereof, or failure to act - Sec. 551(13)

Answer 82

- Requires challenge of specific, discrete failure to act | - the act must also be pursuant to a discrete mandate

Answer 83

Sec 702 (see p489) - cause of action for 'person suffering legal wrong cuz of agency aciton, or adv affected of agency action w/in meaning of relevant statute [ZONE OF INTEREST]

Answer 84

Standard - "whether the interest sought to be protected by P is arguably w/in zone of interest to be protected by statute" (NCUA; Pottowami) - “Not especially demanding standard” (Pottowami)/presumptively reviewable - “test forecloses suit only when P’s interests are so marginally related to statute's purpose that it cannot reasonably be assumed C intended to permit the suit

Answer 85

1 Final agency action 2 Exhaust admin remedies (usually) 3 Ripe action

Answer 86

1 consummation of agency’s decisionmaking process - it’s not of a tentative/interlocutory nature 2 Legal consequences or rights/obligations determined

Answer 87

Common Law exhaustion - for non-APA cases: BALANCE 1) indiv interest in retaining prompt access to federal judicial forum against 2) countervailing institutional interest favoring exhaustion circs where indiv interest will weigh heavily against req exhaustion - p518 1. where req exhaustion would prejudice subsequent court relief e.g. admin scheme here "imposes short deadlines that create high risk of forfeiture of claim for failing to comply" - so if req exhaustion, prisionr will forfeit claim so it prejudices subsequent court relief (dissent disagrees w/this one) 2. where agency has no power to give effective relief E.g. where P asks for $ damages but agency cannot give $ damages (McCarthy) 3. where agency is biased

Answer 88

Darby RULE - exhaustion is not required unless expressly req by statute or agency rule (Sec. 704 - "except as otherwise expressly required by statute...unless agency otherwise requires by rule") - feels like VT Yankee too - Congress spoke clearly to reqs and court cannot impose judge-made exhaustion into APA cases where APA says parties may get judicial review

Answer 89

1. fitness for judicial review (a. purely legal = fit; b. final agency action) 2. hardship to the parties of withholding court consideration NOT purely legal - "further factual development would advance our ability to deal w/legal issues" (National Parks) Hardship to the parties of withholding court consideration: 1 Look for impact on parties’ primary conduct 2 Look for immediate impact on party Yes hardship - P risks prosecution for not complying with Reg, or if comply, must bear costs of changing labels; so lose-lose for P (holding threat of future prosecution over P's heads = hardship) Yes hardship - where reg req immediate change by P = hardship (Abbot) NOT hardship - National Parks - re future disputes, not about what P must do today/day to day biz

Answer 90

1 Congress left a gap; 2 the expertise of agency; 3 the importance of question to administration of the statute, 4 the complexity of that administration, and 5 the careful consideration the agency has given the question over long period of time

Answer 91

NOT adequate notice, cuz did not fairly aprise party what was at stake: - proposed rule was very detailed in what it targeted (sugary cereal, etc) and did NOT mention flavored milk - long history of flavored milk being allowed - REJECTS args of general notice in proposed rule preamble of “healthy diet” and “reduce sugar intake”

Answer 92

- kinda same; "if reasonable, upheld, even if court would have found differently if up to court, but its not up to court" - thats essence of all subst ev, Chevron, and arb and cap - distinction is really just "mood point" - meaning, if in statute, Congress imposes subst ev it means it wants court to a little closer look

Answer 93

1. relied on factors C did not intend it to consider 2. entirely failed to consider an important aspect of the problem 3. offered an explanation for its decision that runs counter to the evidence before the agency 4. is so implausible that it could not be ascribed to a difference in view or the product of agency expertise

Answer 94

1. one member has standing; 2. must relate to purpose of org; 3. cant be suit for money damages (that would req indiv members), must be claim for injunctive relief

Answer 95

Section 706 - compel agency action where unlawfully withheld or delayed - hold unlawful actions that are arbitrary/capricious, violate statute, and if formal under 556/557 then not supported by substantial evidence

Answer 96

as long as process was "careful and informed" and based on subjective academic judgment, then less process required than discipline cases

Answer 97

1. Constitutional Standing 2. Exclusions - (A) Statutory preclusion (express; implied - fairly discrnable); (B) action committed to agency discretion by law 3. Agency action - rule, order, licence or failure to act 4. Cause of Action - Zone of Interest 5. Timing (a) final agency action - consummation/legal consequences (b) exhaustion (c) ripe - fit (purely legal & final action) and hardship to party of withholding court consideration

Answer 98

a. Enforcement usually w/in complete agency discretion, so presumption is against judicial review, unless rebutted by clear statutory guidelines b. Why presumption of complete discretion? Decision not to enforce involves balancing of factors peculiar to agency expertise, which deals w/heavy fact analysis (rather than legal issues, like refusal to institute rulemaking - see note 3 on 477, EN 3/16] i. expertise in deciding whether violation even occurred ii. resource prioritization iii. agency judgment about whether successful in litigation iv. overall agency policies v. resources in general c. refusal to enforce is not exercising coercive power over liberty or property rights d. refusal to enforce is like Executive branch decision not to indict (which is full discretion)

Answer 99

tension b/t Constitution says "all leg powers invested in C" vs. "necess and prop" clause that allows C to pass laws necc and prop to effectuate other powers, so if C passes law that requires experts in the field make rules, then its necc and prop to set up an agency do that, so that justifies turning over some 'leg' power to agency

Answer 100

Congress must give intelligible principle to the agency To fail, C must 1) give no guidance at all, or 2) delegate entire field w/vague standard – e.g. regulate entire economy according to “fair competition” E.g. intelligible principle – o "requisite to protect public health" is OK o 'fair and equitable prices' o 'in public interest'

Answer 101

Court may narrow a vague standard of delegation authority, but an agency may not the intelligible principle doctrine is a constitutional requirement so it is the court that must decide and narrow the guidance to be constitutional

Answer 102

- Article II, Sec. 2: The President “shall nominate, w/advice and consent of the Sentate, . . . Officers of the United States” - Article II, Sec. Congress may appoint “inferior officers” - the N&P is broad power, but it cannot override other provisions of the Constitution, like the Appointments Clause, which gives only way to appoint "Officers" of the US

Answer 103

RULE – Congress cannot appoint Officers (Buckley), nor retain removal power over Officers (Bowsher) – “The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts” (Bowsher) o Power to remove is incident to the power of appointment o President has power to take care the laws are faithfully executed

Answer 104

exercising significant authority pursuant to laws of the US = officer rulemaking, enforcement powers = sign auth

Answer 105

Morrison – TEST - for cause removal is OK if 1) President’s need to control the exercise of officer’s discretion is not so central to the functioning of the Exec Branch that as a matter of constitutional law the Pres must retain termination at-will; or 2) as long as good cause provision does not impermissibly burden the Pres power to control the officer - the quasi-leg and quasi-jud distinction of Humphrey’s is out Distinction - b/t Myers and Humphries/Morrison - Myers - C was still retaining some power for itself (w/advice/consent of Senate) - Humph and Morrison - C was just putting limits on Pres power, not keeping for itself Myers - Pres has broad control over officers (there C tried to req removal only w/consent of Senate; Court said NO LIMITS) Humphrey’s - C can put some limits on Removal power of officers doing more than just executive, they are also doing quasi-leg and quasi-judicial;

Answer 106

Free Enterprise RUL E- dual for cause restrictions on President’s removal power is unconstitional; b/c it violates separation of power - two layers b/t PRes and Bd undermines Pres resp to ensure laws are faithfully executed (Art 2) AND Art 2 vests exec auth in Pres - nothing mutually exclusive about experts and Pres removal power ---> signals skeptical mood on limitations on Pres power to remove officers

Answer 107

- Not technically - But it is treated like one - - and after Noel Canning court may look heavily to past practice - if test for whether for-cause removal is whether Pres's need to control the agency/head is "so central to the functioning of the Exec Branch" then maybe the agency is a department/cabinet

Answer 108

RULE – - The recess appointments clause is ambiguous, - so relying heavily on history, - Presidents may appoint intra-session and whenever vacancies occurred, - but the recess must be a substantial length - if less than 10 days, presumtpviely unconstit (very unusual national security case may be diff) - if 3 days or less it is unconstit

Answer 109

Edmond - if officer has a superior, then EE is inferior officer, “generally speaking” – Morrison is “not a definitive test” o here inferior b/c they have 2 different superiors (JAG supervisors and Court of Appeals reviews their decisions) o Recall, review of decisions is not sufficient (District Ct judges have opinions reviewed but they are principal officers - their position is not supervised) ``` Morrison: Constitution gives little guidance, but factors that lead to inferior: 1. removed by higher auth 2. limited duties 3. limited jurisd 4. limited tenure ```

Answer 110

Agencys “shall make the records” promptly available if party reasonably describes them and pays the fee

Answer 111

4 factor test: 1. agencie’s control 2. generated by agency? 3. placed in agencies’ files? 4. used by the agency for any purpose? (in particular, used by others in agency, or just the indiv whose record it is?) - most important 2 part test – 1. agency must create or obtain the record; 2. agency must be in control of the record at time of request - by ‘control’ we mean come into agency posessesions in legit condut of agnecy duties (sounds like ‘used for agency purposes’ - - ties in to the 4 factor test) RULE ‘agency records’ is not so broad to include perosnal materials even if located in agency (Kissinger – who moved his boxes into agency subject to FOIA)