Admin Law Flashcards
APA has rules that may limit judicial review
- Sec 701 - no review if statute precludes it or if agency action is committed to agency discretion by law
- “final” agency action
- exhaustion
- standing - injury, causation, redressability
- also, Sec. 702 allows review for persons “suffering legal wrong” or adversely affected by agency action w/in meaning of relevant statute.
Informal rulemaking - involves notice, comments, basis/purpose justifying the rule; but more
- judicial interp adds procedural obligations
- sources other than APA may impose procedural obligations
- agency mandate may impose add procedures; or other statutes
- other mechanisms
- -regulatory negotiation - build consensus in industry
- -advisory committee
- -executive agencies must comply w/executive orders, such as regulatory impact analysis reqs
Sources of proposed rulemaking
- Public petition - Sec 553(e) gives public right to petition a rule, but its a small tool to get a rule made
- Agency staff recommendations
- White House/Congress recommendations
- Legislation Requires it
Lobbying
it’s a people thing, be nice, know your audience, etc.
- appeal to interest of agency itself - learn agency’s priorities (Secretary’s speeches), etc; it’s not about your client’s interests
- figure out when to helpful to have allies, esp if I’m Exxon vs. the EPA, get the Wildlife to appeal to EPA
- talk to staff and do so early
who do you wanna get to? ID the appropriate office where the relevant official at the front end of the rule process will be
Low staff = early
high staff = late in game; e.g. Secretary weighing in at end of game/persuading others
work outside levers - PR campaign, work w/legislators (they have leverage w/agencies)
How to influence agencies - p58
knock on every door
allies - more agreement; more good data
read newspapers for signals from higher ups;
know your audience
- tailor arguments depending on agency (econ vs legal, e.g.
- frame my arguments in way already supported by agency
- Congress, press, public -
- try to persuade audience why world would be a better place- its a congressional exercise, not a legal argument
know the rules - when do ex parte rules forbidding talks w/agency happen?
be blunt, not nuanced
Petitions for Rulemaking (APA); preference for final agency action before judicial review but 2 exceptions
“Each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule” APA Sec. 553(e)
Exceptions - Delay; Denial
Agency Inaction/Delay on petition for rule
- Sec 555(b) - agency must conclude matters w/in reasonable time
- SEc 706(1) - reviewing court shall compel agency action unlawfully withheld or unreasonably delayed
TEST - Whether unreasonable delay and court should order agency to act on petition (squishy test)
- time agency takes to make decisions must be governed by “rule of reason”
- where Congress has provided timetable, that should influence the agency
—Circuit split - some say must follow Congress; others say Congress is just one of many (DC Circuit is special, has lots of admin cases so percieve to have expertise)
delay less reasonable if human health/welfare on the line
- what effect would forcing agency action have on other agency priorities?
- nature and extent of interests prejudiced by delay
court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed”
Agency Denial
agency has broad discretion to carry out its responsibility
only in extremely rare cases will court compel agency to institute rulemaking
TEST - Reasons agency relied on for denial must be reasonable and conform to statute
E.G. Mass v. EPA - agency denied petition for rulemaking cuz 1) not wise to do so at this time
Statute: “Admin shall give standards re air pollutant, which in his judgment cause air pollution”
APA Rulemaking exceptions (general)
-military, foreign aff
-agency management or personnel
involving public property, loans, grants, benefits, or K - see p73
agency waivers of exceptions(??)
Specific exceptions from notice/req
[553(b)(A)]
a. interpretive rules
b. gen statements of policies
c. “rule of agency organization, procedure, or practice”
d. “good cause” - other rules for which notice/pub are impracticable, unnecessary, contrary to public interest, emergency (req good cause and publish reasons) [see p89 for “good cause” discussion, but we didn’t really cover in class]
- —-Extension of good cause - “direct final rulemaking” - where rule is likely uncontroversial, agency says will make rule final if no adverse comments
“rule of agency organization, procedure, or practice” - current test (as exemption from notice/comment)
Purpose - so agencies retain latitude for organizing internal operations
Two TESTS
Substance v. process (current test) - aka “Value Judgment” test
TEST -if a rule puts “substantive value judgment or puts stamp of approval on type of behavior” - then its substantive and not exempt and must do notice/comment
E.G. - American Hospitals - p77 - rule changing process was procedural b/c the rule did not impose any new substantive burden
E.G. - JEM - rule changes process of evaluating applications (giving them “hard look”) was procedural and exempt b/c rule did not change “substantive standards” by which agency evaluated applications (even though that hard look led to more denials (substantive burden),
value judgment about importance of efficient process of applications versus parties’ right to application = OK under this rule (but not ok under substantial impact rule below)
“rule of agency organization, procedure, or practice” - old test
Substantial impact (old test)
TEST - even if procedural in nature, if “substantially alters rights or interests of regulated parties” then its substantive and not exempt and must do notice and comment (Air Transport)
REASON - APA Sec. 553 exempts rules re agency procedure/organization/practice, not procedural rules per se, so substance/process test makes no sense
i.e. only rules about agency procedure are exempt, and procedural rules of agency are not
Formal rulemaking
statute requires rule to be made 1) on the record; AND 2) after opportunity for agency hearing [if formal, then apply 556 & 557 trial-like reqs instead of 553 notice/comment] - very rare
“hearing” does not require “oral” hearing - can mean diff things in diff contexts; here, this is legislative judgment and “hearing” doesn’t mean oral evidence (as it does in adjudicatory context) (US v Florida p92)
Informal rulemaking, 2 basic reqs
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)
“rule of agency organization, procedure, or practice” - old test
Substantial impact (old test)
TEST - even if procedural in nature, if “substantially alters rights or interests of regulated parties” then its substantive and not exempt and must do notice and comment (Air Transport)
REASON - APA Sec. 553 exempts rules re agency procedure/organization/practice, not procedural rules per se, so substance/process test makes no sense
i.e. only rules about agency procedure are exempt, and procedural rules of agency are not
Vermont Yankee
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 misconceives 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
Notice reqs for rulemaking
553(b) - “general notice of proposed rule making shall be published in Fed Reg”
- Time, place, nature of public proceeding;
- legal auth of the rule,
- terms of the rule
Standard for adequate notice of rule
“fairly apprise interested parties of what’s at stake” - a “logical outgrowth of the proposed rule”
Dilemma - don’t wanna discourage agencies from making changes based on comments (that’s the point of comments), but on other hand, if agency changes rule in fundamental way it denies parties opportunity to comment on the rule
Issue w/standard for adequate notice for rule
ISSUE - should “logical outgrowth” be of the proposed rule or the proposed rule + comments? prob w/tying to comments, is that everyone must read all comments and respond to all comments; [see Note 4 p110]
Comment req for rulemaking
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
Formal rulemaking
statute requires rule to be made 1) on the record; AND 2) after opportunity for agency hearing [if formal, then apply 556 & 557 trial-like reqs instead of 553 notice/comment] - very rare
“hearing” does not require “oral” hearing - can mean diff things in diff contexts; here, this is legislative judgment and “hearing” doesn’t mean oral evidence (as it does in adjudicatory context) (US v Florida p92)
restrictions on ex parte contacts in rulemaking
- Formal rulemaking - ex parte explicitly prohibited [Sec. 557]
- Informal - 553 silent re ex parte [but organic statute may] - and court imposes restrictions anyway (Sierra Club replacing HBO)
- DP Clause prohibits ex parte when rulemaking involves conflicting claims to valuable privilege - cuz it feels like adjudication [e.g. who gets valuable parts of spectrum]
Ex parte in informal rulemaking rule (current and old); caveats; to overturn rule based on Cong pressure
553 silent re ex parte [but organic statute may] - and court imposes restrictions anyway
Sierra Club - DC Cir - displaces HBO - after VT Yankee
RULE - central relevance test: all 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.
Note after Sierra that DC Circ distinguishes Sierra and say sits rule is not relevant in usual APA cases that dont have a statute w/reqs w/hybrid reqs
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
Ex parte in informal rulemaking rule (current and old); caveats; to overturn rule based on Cong pressure
553 silent re ex parte [but organic statute may] - and court imposes restrictions anyway
Sierra Club - DC Cir - displaces HBO - after VT Yankee
RULE - central relevance test: all 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
Judicial review of agency interpretation of a statute
706(2)(c) - courts hold unlawful agency action in “excess of statutory jurisdiction, authority, limitations, or short of statutory right”
Chevron
Chevron
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
Rational and policy for Chevron
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
Informal rulemaking, basic
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)
Substantive decisions in rulemaking
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
Hybrid
Congress req in statute the agency use more process than 553 but less than formal under 556/7
Vermont Yankee
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
must agency use formal or informal adjudication?
- presume formal unless statute otherwise specifics
- presume informal - if statute does not use magic words “hearing on the record”
- 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)
ex parte in formal adjudication - bans interested parties
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 -
- gravity of ex parte comm [e.g. threat?]
- whether contacts may have influenced the agency’s ultimate decision
- whether the party making improper contacts benefitted from agency’s ultimate decision
- whether contents of comms were unknown to opposing parties who thus had no opp to respond
- whether vacation of agency decision and remand for new proceedings would serve useful purpose
Split-enforcement arrangement
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)
ex parte in formal adjudication - bans interested parties
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 -
- gravity of ex parte comm
- whether contacts may have influenced the agency’s ultimate decision
- whether the party making improper contacts benefitted from agency’s ultimate decision
- whether contents of comms were unknown to opposing parties who thus had no opp to respond
- whether vacation of agency decision and remand for new proceedings would serve useful purpose
ex parte in informal adjudication
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
individualized decisionmaking
Depends on:
- # of people affected by decision and
- —if lots of people, not administratively feasible for individualized determinations in a due process hearing
- 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
Property Interest
must have legit claim of entitlement to property;
—-req more than abstract need/desire for property
Comment req
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
DUE PROCESS HEARING PROCEDURES
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
Horowitz
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
Osteen
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
Biased decisionmaker in DP hearing
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
Ex Parte Communication defined
“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)
Usually deference to ALJ credibility findings, but NOT if . . . and how may Board reverse ALJ’s credibility findings?
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
Standard to apply to agency determinations of issue of mixed law/fact
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
Mixed question of law and fact or purely legal?
Determine by two steps:
- whether Congress has defined term (if yes, then its purely legal)
- if Congress did not define, then question is one of specific application of broad statutory term and deferential review of agency decision is appropriate
Standard of review for informal adjudication
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
Ex parte in rulemaking rule (current and old)
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
Retroactive application of adjudicatory rule
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
Pros/Cons of Nonlegislative Rules [which must be published in Fed Reg]
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
Distinguish Policy Statement from legislative rule
“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?
- present effect, as in imposes rights/obligations? (if yes then leg rule)
- 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) - agency characterization is a factor but not dispositive
Interpretive rule (defined and characteristics)
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
Interpretive Rule or Legislative Rule?
Depends on whether rule has “legal effect”:
- Source of obligation?
- whether agency invoked its legislative auth
- whether rule amends a prior legislative rule
Agency flip flops on Non-Legislative Rule
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
