Administrative Law

Question 1

What agency actions does administrative law apply to?

Answer 1

• Administrative law only applies to the actions of agencies that alter the legal rights and obligations of individuals. Also, usually relates to how agencies make decisions and how courts review them, not the contents of agency decisions.
• Focuses on power of agencies to act w/ force of law & procedures they must follow in such actions.

Question 2

From where does an agency derive its power?

Answer 2

• Congress is only one w/ authority to allow agencies to act in a way that affects individuals.
• If an agency has auth. to affect indiv rights, has to trace that auth to an act of Congress.
• Pres can create any number of advisory bodies, offices, agencies, but they can’t act in a way that affects rights b/c congress hasn’t given that power.
• Each agency has to trace its authority to an act of congress. No more and no less authority than what congress has given.
• When an agency takes action that affects an individual, it is subject to judicial review of the agency action, whether it is within statutory authority and, if so, whether the statute (the authority itself) is constitutional.

Question 3

Agency definition

Answer 3

Any governmental entity w/ the authority to take actions that alter the legal rights and obligations of individuals. Same definition in the APA, except the APA excludes Congress, the president, and the federal courts.

Question 4

What kind of actions can agencies take with the force of law?

Answer 4

• Agencies can act w/ force of law in 1 of 2 ways:
- issue a “rule” through “rulemaking” – resembles lawmaking
- issue an “order” through “adjudication” – resembles judicial trial when formal
• Rule – creates a legal norm that governs the conduct of a defined category of individuals
• Order – individualized application of a legal norm to specific individuals

Question 5

Ultra vires

Answer 5

• Congress creates the agency & gives it certain powers to act affecting individual rights (enabling act). Statutory source of authority that an agency must have before it acts. Any action that is beyond the powers congress gave is void because its ultra vires (beyond the power)
• Agencies have no power of law creation – only of law execution. All under Article II.

Question 6

Executive vs. Independent Agencies

Answer 6

• Executive agencies:
  
  • designed to be responsive to political & policy direction of president
  • usually one head, who serves the president
  • head can be removed for any reason (personal, policy) or no reason at all
• Independent agencies
  
  • more insulated from presidential control
  • usually led by a group of individuals (5 or 7), whose membership is balanced btwn members of the two major political parties.
  • leaders serve fixed & staggered terms, subject to removal by pres only “for cause” – personal friction or policy disagreements aren’t sufficient. President usually must show that the member suffered some disability or engaged in misconduct.
  • More freedom than executive agencies to develop and implement their own policies

Question 7

What choices does Congress have re setting standards for public to abide by? What are the cons?

Answer 7

• Congress has 3 basic options:

(1) congress writes a set of national standards that govern workplace safety across the board, list of workplace standards, gives any private worker standing to sue in fed ct.
- Problem: under-enforcement. Problem with private enforcement of public norms

(2) congress writes standards, creates an agency to enforce standards, investigate & adjudicate violation of congress’s standards, subject to judicial review
- Problem: is Congress the best rule writer?

(3) congress gives agency authority to write standards, then gives agency power to enforce & adjudicate them, subject to judicial review.
- Good b/c specialized knowledge, more technical.
- Problem: concentrating too much auth in agency

Question 8

Nondelegation Doctrine (definition and reason for being)

Answer 8

• Congress can’t delegate its legislative powers to any other institution or person. Congress has power to make legislation.
• SOP requires that legislators avoid extremes of ceding or exceeding role as nation’s lawmakers
- For Congress to delegate its legislative power is a violation of constitutional text, SOP, popular sovereignty & representative democracy

Question 9

Test for nondelegation doctrine

Answer 9

• Intelligible principle: As long as Congress lays down “an intelligible principle” in the act “to which the body authorized to exercise the delegated authority is directed to conform” it’s not a forbidden delegation of legislative power. (Mistretta)
• It’s constitutionally sufficient if Congress clearly delineates (1) the general policy, (2) the public agency to apply it, & (3) the boundaries of the delegated authority.
• *Only if there’s an absence of standards for guidance of agency’s action, so it is impossible to ascertain will of Congress, would it violate SOP
• As long as there are standards that provide an intelligible principle to guide the agency.
• Allows judicial branch to determine whether agency acted w/in authority. Ability to ascertain the will of Congress.
• Standard of communication, boundary limit on agency’s auth that’s capable of being understood.
• more than intelligible principle = gives purposes of Act, explains what agency should do & how, & tells how to handle particular situations.
• Act, which requires EPA to set air standards at level “requisite” – not lower or higher than necessary – to protect public health, is w/in discretion allowable under nondelegation doctrine
• lenient - must be able to define limits of auth
• if too broad, cts might interpret in way that makes it usable on judicial review & by ag

Question 10

What constitutional provision allows Congress to delegate to agencies?

Answer 10

• N&P clause
• Congress saying this is N&P to effectuate its powers. So long as Congress has rational basis for choice of means, it’s a policy question for congress, Congress better able to make that decision. Not for courts to decide.

Question 11

Legislative Veto

Answer 11

• Only thing Congress can’t do
• Legislative vetoes have many forms, but all share common characteristic of empowering Congress to invalidate agency action on its own. Congress passes enabling act, requiring agency to communicate w/congress & gives power to veto agency decision.
• Problem is that Congress is creating law w/o going through bicameralism and presentment.
• Legislative veto alters individual legal rights. Why we care about this more than oversight hearings. Vetoing is changing legal rights & obligations. Why it triggers SOP req’ts. When Congress acts to change rights, it has to do it as a lawmaker. In order to pass law, must satisfy bicam. & present.
• Legislative veto would essentialy be congress executing its own law, usurping executive power. Congress can write a statute that creates power, but congress can’t then exercise that power.
• E.g., Pres has power to remove agency head. Congress can check that power by limiting grounds for removal, but can’t give itself a role in decision to remove, can’t require senate consent to removal. Can’t step into shoes of exec branch.

Question 12

Ways congress can control agency action

Answer 12

1. Write statute - general statute that applies to all agencies; or give little or no policy-making discretion in enabling act; create an independent or executive agency.
2. Power of the purse: Can ony draw $ from treasury when congressionally authorized. Agencies can’t do anything w/o spending money and can’t spend money w/o congressional appropriation. Congress can use money to functionally kill or foster policies and decisions.
3. Senate’s power of advice and consent: Senate has authority to deny confirmation for president’s choices of agency heads. Or can simply sit on nominations, leaving agencies headless for yrs
4. Oversight hearings: Senate can investigate & hold hearings for exec branch members (Benghazi)
   CAN’T DO LEGISLATIVE VETO

Question 13

Ways president/executive can control agency action

Answer 13

1. Appointment of Administrative Officials
2. Removal of Administrative Officials
3. Presidential Oversight of Govt Administration
4. White House Planning & Review of Agency Rulemaking

Question 14

Presidential Appointment/Removal of Administrative Officials

Answer 14

1. Appointment of Administrative Officials
   - Appointments Clause: “principal officers” selected by pres w/ advice & consent of senate. “Inferior officers” - Congress can delegate that appointment power topresident alone, courts, or heads of depts by passing a law.
2. Removal of Administrative Officials
   - Must ensure Congress doesn’t interfere w/ Pres’s exercise of exec power & his duty to take care that the laws be faithfully executed.
   - Ct decides on ad hoc basis whether the Pres’s need to control exercise of a particular official’s discretion is central to functioning of Exec Branch
   - Cabinet members likely b/c close proximity to pres & political nature of service, pres may have special need to dismiss cabinet members, in whose discretion he no longer trusts.
   - Congress likely can’t completely deny pres power to remove official. W/o auth to remove for good cause, pres would be left w/o means to ensure faithful execution of the laws.

Question 15

Presidential Oversight of Government Administration

Answer 15

• Pres can’t relieve exec officers of obligation to comply w/ acts of congress, but pres has broad auth to control the decisions that exec officers make under their statutory auth.
• S Ct hasn’t spoken on whether pres can require exec officials to adopt his policy directives in exercising their statutory discretion, but Sierra Club v. Costle (DC Cir) - basic need for pres to monitor the consistency of exec agency regs with administration policy - must consider his policy contributions.

Question 16

White House Planning and Review of Agency Rulemaking

Answer 16

• Office of Management & Budget (w/in Exec. Office of the Pres.) has auth to require agencies to report to OMB on their regulatory decisionmaking. and to make consistent w/ pres. policy.
• Pres. through E.O. requires agencies to clear their budget requests through OMB. Congress has power to appropriate funds to agencies. Requiring that OMB sign off on budget requests before they go to Congress. OMB aligns requests w/ Pres’s priorities. Pres writes himself into appropriations process by controlling requests to congress.
• E.O. requires exec agencies when they are engaged in significant (economic impact) rulemaking (not adjudications, violation of DP), it must report to OMB. Must say we are thinking about proposing/adopting rule. OMB reviews rule & determines whether benefits of rule outweigh costs
• Congress can override this in enabling act by saying they want rules effective regardless of cost / benefit analysis. Those are exempt from the EO.
• Unsettled question whether this is constitutional
• Report and wait

Question 17

Report and Wait

Answer 17

• Small Business Regulatory Enforcement Fairness Act creates report-and-wait process re major rulemaking decisions by agencies.

• whenever agency decides to adopt major regulatory rule & they get OMB clearance & publish rule, rule doesn’t take effect for 60 days.
• Congress has 60 days to pass statute invalidating rule, then it will never go into effect. If statue passed after 60 days, rule is invalidated.
• Different from legislative veto b/c Congress going through correct procedures for passing law. Passing a law invalidating an action of an agency goes through bicameralism and presentment.

Question 18

Interaction of enabling acts and APA

Answer 18

• One statute that generally applies to every agency taking every action that affects individual rights. Across the board law for all agencies.
• Control agency action by prescribing procedures by which agency can act.
• APA is agnostic on substantive power of an agency, which comes from its enabling act. APA governs how an agency acts/decides (not what that final decision will or will not be).
- Enabling acts can displace APA. §559 - in case of conflict, enabling act trumps APA. Congress always has option of requiring more or less procedures than APA requires.
• In administrative law problem, always go to enabling act first, see if particular procedures required. Go to APA second, it will fill in blanks – will apply to extent enabling act doesn’t conflict.

Question 19

Definition of “agency”

Answer 19

• §551 - “agency = each authority of the govt, except Congress, the courts, the DC govt. Congress didn’t define authority. Conference comm report (authoritative) defines auth as
- An officer or board that has the legal authority (enabling act) to take final & binding action that has “force & effect of law”

Question 20

Rulemaking - Adjudication Distinction

Answer 20

• Londoner – individualized assessment (like an individual order); Bimetallic is a general across the board (like a rule)
• Londoner – deciding by individual, individualized. BiMetallic – generalized, categorical.
• Londoner, application of standard individualized. Standard itself isn’t individualized. Application to individual is an adjudication. Challenge is at the application. Bimetallic, challenge is at rule level. When you get to point of application, triggers unfairness for some, but doesn’t give DP right to challenge 40% rule.
- At some point, Denver will apply rule to your individual assessment (get bill). When applied to individual & individual assessment goes up 40% - THAT is like Londoner. At point it gets applied, it’s adjudication. BUT at that point, the individual who is now overpaying doesn’t have a 14th Am. DP right to lowered assessment b/c they are still challenging the RULE, not an ADJUDICATION.
- Rulemaking - challenging the rule, not the application of the rule = no DP violation.

Question 21

Londoner

Answer 21

• Denver assessing each individual prop owner for his fair share of paving cost, each prop owner had right to challenge default rule – e.g., in my case frontage isn’t a good estimate of benefit I am receiving. Denver only gave prop owners opportunity to respond in writing. Prop owners filed written comments, some dissatisfied. Filed suit claiming procedural DP violation.
• Procedural DP – ppl have right to notice & hearing before they are deprived of their property.
• Ct holds DP rights violated. Finds the written comment process a violation of DP. Need to have an oral evidentiary hearing of some type.
• Adjudication

Question 22

BiMetallic

Answer 22

• Denver assessor assesses prop taxes, based on value of prop, pay certain percentage in tax.
• Colorado sees an across the board tendency that local assessments are low relative to fair market value of properties.
• State sent order to Denver, which raises all prop values by 40%. No notice to prop owners & no opportunity for any response (not even written)
• One prop owner sues b/c raised valuation w/o notice & opportunity for hearing.
• Court holds procedural DP not violated.
• Rulemaking

Question 23

Bases for rulemaking / adjudication distinction

Answer 23

• (1) nature of the decision (individualized vs. generalized; generalized = deciding by category – are you in the category, a Denver prop owner, or not)
- (2) nature of the effect on individuals (exceptional vs. equal effect; in Londoner, each individ was exceptionally affected; in BiMetallic, everyone in category = 40% rule, look at it from agency’s perspective),
- (3) number of individuals affected.
• Why make the distinction?
- Regarding nature of decision, when adjudicating, an individual has crucial info (e.g., how valuable is road for you? To make that determination, need info re the individual). Should hold true for any individ decision. If tailoring something to their situation, need to know about situation.
- Adjudications are grounded on adjudicative facts (facts re individ). In rulemaking, agency has made expert assessment, don’t need to know each individual’s circs. (Legislative facts – more about policy & assumptions about what is generally true, e.g., driving age).
- Regarding number of individuals affected & nature of effect on individs, there’s political process for large groups, but not individs. Large groups have power & incentive to push back. When agency’s adjudicating, only deciding re an individ, who doesn’t have political check – one person agst the govt is an unfair fight.

Question 24

Can a rule affecting only one person be an adjudication?

Answer 24

• Decisionmaking by category, not by individual. Doesn’t matter that there’s only one. Don’t look at it from perspective of individual, but perspective of agency. (E.g., a standard not tailored to the plant, but tailored to a geographic region.
• Troubling b/c no political check for only 1 individ. Of course EPA knows there’s only 1 plant.
• If it can be shown that it’s adjudication on the sly, then there is a right to a DP hearing. Show that nature of decision was to write a standard that applied to this plant (or narrow group) only and agency writing general standards that will apply only to this plant and knows it.

Question 25

APA definitions of rule & order

Answer 25

• Rule – whole or part of agency statement of general or particular applicability & future effect designed to implement, interpret, or prescribe law or policy…
• Order – any final disposition of agency in matter other than rulemaking. (anything other than a rule)
• Rule & “future effect” – cts generally fall back on Londoner-BiMetallic (general vs. individualized).
• Under APA, use Londoner-BiMetallic to guide decision, then rationalize it under APA. Until S.Ct. says differently, use L-Bi, but remain conscious of the need to rationalize choice under APA.
  
  • E.g., Irritated Residents - ct says consent agrs aren’t implementing statute (crazy), & 2500 identical but individualized determinations = adjudications. L-Bi, rationalized under APA.

Question 26

Formal Adjudication

Answer 26

1. APA provides for “judicial, trial type hearing”
2. Require decision-making “on the record”
   • Purpose of admin hearing is to create record & agency is bound by evid in that record in making decision, exactly like a court
   - Procedural DP - notice & some kind of evidentiary hearing applies to all adjudications. APA requires when formal adjudication applies requires most elaborate judicial proceedings. What’s required by DP is usually not as extensive as APA’s formal adjudication process.
   - When agency adjudicating, deciding like ct disputes btwn 2 parties. When agency is acting like a ct, it should proceed like a ct
   - Judge ideally has “no skin in the game.” When agency heads decide, Congress opting for ppl who have stake in enforcement – not policy neutral

Question 27

Agency steps in enforcing a rule

Answer 27

1. Investigation. Could require reporting, go inspect records, monitor it themselves. Matter of what enabling act allows – APA doesn’t grant these rights. To develop info enough to allow agency heads to decide if reason to believe violation.
2. Prosecution. Agency head(s) will sign off on rule, launch investigation & launch prosecution agst individual. The Notice of Hearing.
3. Hearing. Individ has right to trial-like hearing.
   
   • In typical case, presiding officer is an ALJ
   • Agency head can preside or delegate to ALJ.
   • In formal adj, has to be a head or ALJ. Informal can be an Administrative Judge (AJ). ALJ is independent of the agency.
   • ALJ only makes initial decision, final decision goes to agency head, who is bound by the record, limited to the record.
4. Judicial Review - if party appeals.

Question 28

Investigation / Prosecution / Hearing all under the direction of agency head - why doesn’t this violate DP? And what procedures are in place to make it more fair to individuals?

Answer 28

• Withrow v. Larkin - presump of honesty & integrity in administrative process / adj. Complaining party must present specific evid to establish “unacceptable risk of bias” in agency’s adjudicative process. Person can make case that PARTICULAR agency/head not acting right
• Specific APA provisions to make sure process is as fair as possible to the individual
• 554(d) – only applies to formal adj. ALJ can’t consult w/ anyone on enforcement side re any fact in issue. Makes sure all facts coming to him through trial. Means ALJ CAN consult w/ investigators & prosecutors re law or policy. UNLESS those are the people who investigated / prosecuted that particular case or a related case
• 557 - Insulates all agency decisionmakers from ex parte contacts w/ any interested person relating to merits of the case. Law, policy, or fact. Interested person – anyone more interested than normal uninterested person

Question 29

How are ALJs restrained in their contacts with others?

Answer 29

• 554(d) – only applies to formal adj. ALJ can’t consult w/ anyone on enforcement side (investigation/prosecution) re any fact in issue. Makes sure all facts coming to him through trial. Means ALJ CAN consult w/ investigators & prosecutors re law or policy. UNLESS those are the people who investigated / prosecuted that particular case or a related case
• 557 - Insulates all agency decisionmakers from ex parte contacts w/ any interested person relating to merits of the case. Law, policy, or fact. Interested person – anyone more interested than normal uninterested person
- 554 restrictions don’t apply to formal RM (even though on the record after opp for hearing - no restrictions on discussing facts with others bc not individualized, DP doesn’t apply
- BUT, restrictions on ex parte (interested ppl outside agency re merits) DO apply to formal RM (bc they want decision to be made on the record on basis of evid presented)

Question 30

Triggering Formal Rulemaking

Answer 30

• “on the record after opportunity for hearing” - trigger is “on the record,” but can be other words like “formal RM.” NOT “full hearing” or “full opp for hearing” - paper hearing ok (N&C)
• 553c - written N&C process is default (if EA silent)
• Enabling act can override default by requiring agency make rules on record after opp for hearing. Then, §556-557 would apply (formal, trial-type hearing applied for formal adj instead of written comments). After hearing, agency promulgates rule “on the record” made at hearing. Like RM/adj hybrid. Judicialized RM proceeding.
• FL East Coast - Term “hearing” is ambiguous & no reqt for it being “on the record” – w/o that, you don’t satisfy 553(c) trigger.
• Formal RM is hybrid – start w/ NPRM (BiM), then full trial (Londoner), then back into BiM (statement of basis and purpose).
• A hearing reqt in an enabling act empowering an agency to engage in RM, w/o more, is interpreted just as a paper hearing. But, can argue no “meaningful” opp to participate w/o oral hearing in my special case.

Question 31

When can you use written comments instead of oral evidentiary hearing in formal rulemaking?

Answer 31

• 556(d) allows ALJ to forego oral evidentiary hearing for written comment hearing, if no party prejudiced. Available only for formal RM. No one prejudiced if parties can present their sides in paper just as well as orally. Don’t need witnesses, etc. (Unlike formal adjudication where parties have a RIGHT to an oral evidentiary hearing).
• “on the record” – decision based exclusively on record produced by parties participation. Can’t use any info other than evid presented at hearing.
- informal proceedings – not limited to record. Can go outside the record. As long as you read the comments and consider them, can base decision entirely on something else.
- NOT available in adjudication - no opt out

Question 32

Vermont Yankee

Answer 32

• DC Cir said agency had to redo RM b/c they had to do more in this case (evidentiary hearing)
• S Ct instructs lower cts to abandon judicial hybrid RM project of “engrafting their own notions of proper procedures upon agencies.”
• § 553 imposes MAXIMUM rather than MINIMUM procedures reviewing cts, absent other statutory reqts, may order agencies to follow in informal RM.
• Court can’t require an agency to go beyond 553.
• 553 gives a N&C process & that’s all that’s reqd.
• Ct’s reasons:
  
  • Judicialization of informal RM agst what Congress wanted. Would make informal process rarely used.
  • Agency is in best position to make decisions re what is best way to get info the agency needs.
  • Provide predictability
• Limit procedural review to 553 reqts. Then see if data supports substance of rule

Question 33

Triggering Formal Adjudication

Answer 33

• circuit split (Chem. Waste, DC Cir, is leader)
• generally, informal adj is default unless enabling act unambiguous
• Chem. Waste - 1. Has Congress spoken clearly? Say formal adj, on the record? 2. If statute is silent or ambiguous, ask whether agency’s interpretation is based on permissible (reas) construction of statute. Here, statute is ambiguous & agency’s interpretation reasonable.
• City of W. Chicago - “On the record” does not apply unless Congress clearly indicates that “hearing” is trial-type (not automatic reqt)
• Seacoast - Unless EA states otherwise, presump that statutory hearing reqt for adj will trigger formal adj. 1st Cir. has since abandoned this in favor of Chem Waste.

Question 34

Informal Rulemaking

Answer 34

• In Vermont Yankee, ct said it can’t enforce anything more than what Congress has provided.
• Ct’s approach to enforcing procedural reqts of informal RM since VY has been to ensure fairness & optimal decisionmaking by interpreting N&C provisions functionally.
1. NPRM
2. Public Comment
3. Agency Consideration
4. FInal Rule and Statement of Basis and Purpose
5. Judicial Review

Question 35

Notice of Proposed Rulemaking

Answer 35

• NPRM - must be published for public in Fed Reg, give details on proceedings to be held, dates comments due, etc.
• Notice must cite legal authority it’s relying on (enabling act has to justify the action) (553(b)(2))
• Agency can publish actual proposed rule; or substance of rule (would do following things, describe what it would provide). Or it can just disclose subjects & issues it will be considering.
• Preamble: agency’s gives background, why it’s proposing, what it wants to accomplish, what purpose is, highlights particular subjects/issues.
• *Cts require NPRM be “adequate” to allow meaningful comment

Question 36

Opportunity for meaningful comment under informal RM

Answer 36

• E.g., NPRM must say if it was looking to increase or decrease benzene levels. Not a “logical outgrowth.” Said subject/issues involved so literally complies. But, a solicitation w/ vague terminology doesn’t give adequate notice for substance of rule. Don’t look for literal compliance – cts looking to see if NPRM allows for meaningful opportunity for comment.
  Don’t have to write proposed rule or substance of it, don’t have to say thinking about 1 ppm. But must be reas clear communication to commenter that 1ppm is w/in range of alternatives being considered.
• Inconsistent w/VY? Really we are choosing more functional way of interpreting §553(b)(3) – looking if disclosure was adequate.
• Technical studies & data upon which agency relied must be disclosed to allow meaningful opportunity for comment. BUT…
• Logical outgrowth rule. Newer study - Avoid “perpetual cycles of new N&C periods.” Final rule that is a logical outgrowth of proposal doesn’t require new N&C. But if final rule departs too drastically from original proposals, N&C required. (E.g., final rule simply more stringent than proposed rule).
• question isn’t whether you disclosed all studies, it’s whether notice was adequate - but can’t redact negative stuff. Meaningful comment requires disclosure of pros and cons

Question 37

Exemptions from Notice and Comment Procedures

Answer 37

• Rulemaking w/o N&C - when agency doesn’t have to follow any process
• 553(b)(A) - non-legislative/substantive
  
  • policy statements & interpretive rules (guidance docs)
  • procedural rules (doesn’t itself alter your rights/obligations, just states procedure by which agency can alter your rights - only applies in the agency, not in the world - just governs how you interact with the agency - legislative, but ot substantive)
• 553(b)(B) - good cause exemptions (for legislative substantive rules). When agency fir good cause finds (and incorporates into statement of reasons) that N&C is
  
  • impracticable
  • unnecessary; or
  • contrary to the public interest
• 553(d)(3) - good cause exemption for 30 day waiting period btwn final rule and its going into effect.
  
  • cts balance reason for immediate compliance with the interest ppl have in having 30 days to come into compliance

Question 38

Good cause exemptions

Answer 38

• exemptions from N&C for legislative substantive rules - EXCEPTIONAL cases
• When an agency for good cause finds (& incorporates finding & statement of reasons in the rules) that N&C is impracticable, unnecessary, or contrary to the public interest.
• Impracticabilty & public interest only allow interim rules - announce intent to replace interim final rules w/permanent after N&C. Reviewing cts more likely to allow exemptions if they do this
• Impracticable: if agency can’t both follow 553 & directives in enabling act, N&C is impracticable. Can’t comply w/ APA & enabling act at same time. Classic e.g. - emergencies, agency must respond. 9/11 - order to land planes immediately or be shot down. Legis/subst rule, legal consequences. No time for N&C. BP spill - ordered halt in Gulf bc others could be defective, no resources to deal w/ two. E. coli - immediately all lettuce comes off shelf.
• Against Public Interest - (1) emergencies, N&C agst public interest. E. coli N&C = removal of lettuce long after outbreak over. (2) N&C process would undermine purpose of rule, make ineffective. Classic e.g. - agencies engage in price controls. Advance notice of price freeze incentivizes companies to raise prices, rush to finalize contracts before rule. Undermines success of rule. Really only situation where cts allow this one.
• Unnecessary - N&C unnecessary for issuance of minor rule/amendment where public not interested. E.g., requiring parties sign loan agrs in ink. So insignificant, no rational person would comment. Or agency makes technical amendments for mistakes, typos. Depends on typo. If no substantive difference, fine. But left out zeros or put in a “not” - will change rights / responsibilities, have to go through N&C RM.
• Cts won’t accept protection of health & safety to justify these - almost all rules fit. Point of N&C is to test assumptions that something is harmful to health and safety

Question 39

Identifying legislative substantive rule

Answer 39

• Legislative rules - rules for which N&C were devised, have force & effect of law like legislation. Create legally enforceable rights or obligations.
• Substantive - rules have changed content of individuals rights & responsibilities out in the world (vs. procedural - only in how you relate to agency)
• Example of legislative, substantive rule - 1ppm benzene rule. Legislative bc gives workers legal right to workplace w/ no more than 1ppm; legal obligation on employers to keep it at or below. Changes the law, legally enforceable. Substantive bc changing conduct, way workplaces operate, content of company’s obligation to workers & content of the employee’s right.
• Rule saying FCC won’t look at any applications with mistakes in them = procedural bc governs form of application, not changing substantive criteria of decisionmaking, not even looking at substance. Just how individual interacts with agency

Question 40

Guidance Documents

Answer 40

• policy statements and interpretive rules
  • Exempt from 553 bc not legislative. Might be substantive or procedural, but don’t themselves have force & effect of law/ change rights/obligs.
  • Agency tries to provide guidance on how it intends to implement / enforce enabling act.
  • Not binding - no N&C. Danger - tempting options for agencies to engage in RM on the sly. What reviewing courts try to look at.

Question 41

Policy Statements

Answer 41

• Statements issued by agency to advise public prospectively of manner in which it proposes to exercise a discretionary function.”
• E.g., OSHA benzene. Enabling act says make workplaces “safe & healthy” - agency could put out statement saying it will look at reducing carcinogens in workplaces. Doesn’t change legal status of any workplace. But, when agency issues 1ppm standard, creates right in every worker & oblig for every employer. Changes legal status (legislative, force & effect of law)
• Not binding on public or agency.
• Legal effects test:
- focuses on legislative or nonlegislative character. Legislative rule will have legally binding effect, policy statement won’t.
- Don’t ask abstractly if statement has legal effect, but about effect of statement in enforcement proceeding. How will agency use statement? As law, binding on them & parties? Or non-binding guidance on how it will apply law?
- Is standard still “safe & healthy”? Or is it really 1 ppm? Can parties argue that level over 1 ppm is safe & healthy? If 1 ppm is standard, only question in enforcement will be whether you complied.
- What is binding standard of decision? Enabling act or policy statement? Legislative rule on the sly?

Question 42

Interpretive rules

Answer 42

• rules / statements by agency to advise public of its construction of statutes / rules it administers.
  • Non-legislative, no force & effect of law.
• Tells agency’s interpretation of a provision of enabling act or legislative rule is. There are always gaps / ambiguities, so agency must interpret.
  • Not binding on individuals or agencies.
  • E.g., OSHA enabling act says agency must bring exposure to minimum feasible level. Interpretive rule = “we think feasible means technologically possible & economically sustanable” or “technologically possible, no matter cost.” Doesn’t require individs or agency to follow interpretation
  • Cts ask whether interpretive rule has created new standard or is simply elaborating on enabling act or legislative rule?
  • Interpretive rule just clarifies / explains preexisting standard, not making new law.
  • Test some cs use: whether or not provisions of interpretive rule are “fairly encompassed” w/in preexisting rule. When agency says “feasible” means “technologically possible” it is fairly encompassed in statute.
  • 1ppm isn’t definition of safe & healthy.
  • Legal effect test - doesn’t have legal effect, haven’t changed law.

Question 43

When must rulemaking be used (as opposed to adjudication)?

Answer 43

• Chenery II - choice btwn proceeding by gen rule or individ ad hoc litigation lies primarily w/ agency
• Balance retroactive impact on individ & agency need to implement law. Chenerys are put in status quo ante (money back, can’t participate). Would be different if they were fined $1 million.
• Agency can choose adjudication, announce new norms, but if agency imposes liability, its action won’t stand. Problem = unfairly penalized, not that they chose adjudication
  • Agency that decides to stay ad hoc / flexible can’t penalize parties for taking actions you later decide inappropriate. Can decide to require entitly to conform conduct w/ what you think appropriate under statute but, to impose liability (fine, disbarring, sanction), must have specifically outlawed the conduct in prior rule or adjudicatory decision. Proper notice, not arbitrary & capricious
  • In adjudication, ct issues order binding ONLY on party. Agency must have reasoned basis for order (opinion), will have precedential weight. Could be subject to fine / sanction when there’s precedent. Agency can make exceptions or overrule precedent. Opinion not as binding as rule

Question 44

Chenery remand

Answer 44

• Chenery I
• Ct can only go by what agency’s basis of decision was at time of decision (Congress gave SEC authority, they messed up. Ct can’t take over auth in deciding whether Chenerys get stock.
• Court remands for do over. “Chenery Remand”
• If agency decision is a nullity, ct stops & remands back to agency. Agency can’t make up law - must apply law.
• Foundation of judicial review - limit of ct’s role. Ct reviews basis on which agency acted. If not ok, goes back to agency. Only time ct won’t do that is if there’s no reason - if agency has no discretion to do anything differently - statutory mandate.
• On remand, agency essentially wrote same order w/ different justification

Question 45

Retroactive rulemaking

Answer 45

• Retroactive RM - only allowed if Congress expressly authorizes it. APA definition of rule is that it has “future effect.”

Question 46

When must adjudication be used (as opposed to rulemaking)?

Answer 46

• Enabling act - “after hearing” - adjudicate particular matter (license applic, enforcement proceeding, etc.).But there are recurring issues, resolve through RM, apply rule in adjudications.
- Whether it’s a violation of statute to resolve this issue through RM depends on the nature of issue
• If issue is one that can properly be resolved on a generalized categorical basis w/o need for case by case decisionmaking, then its ok. (BiMetallic generalized issue that applies to each entity)
• If issue requires case by case decisionmaking, must do adjudication (Londoner)

Question 47

Substantive Judicial Review (overview)

Answer 47

• Substantive review (§706) - whether agency’s substantive decision is lawful.
- Ct shall decide all relevant questions of law, constitutional & statutory provisions…
- Reviewing ct SHALL
(1) compel agency action unlawfully withheld or delayed. (rare; basically writ of mandamus)
(2) hold unlawful & set aside agency action, findings, & conclusions (Chenery I) found to be
(A) arbitrary, capricious, abuse of discretion, or not in accordance w/ law** (most common)
(B) contrary to constitutional right
(C) in excess of statutory authority
(D) w/o observance of procedure req’d by law
(E) unsupported by substantial evid in formal proc (does evid in record support findings of fact?)
(F) unwarranted by facts to extent facts are subject to trial de novo by reviewing ct (very limited now - trial de novo rare - have it in constitutional claim or if enabling act requires it)
- Ct shall review WHOLE record and due account shall be taken of rule of prejudicial error. Can always argue that although error, not prejudicial
• Every administrative decision that affects rights can be broken into 3 parts: agency (1) findings of fact, (2) conclusions of law, (3) application of law to fact. KEEP SEPARATE

Question 48

What types of review do cts do on judicial review?

Answer 48

• When ct is reviewing legality of agency action, it will take potentially 3 different looks:

(1) constitutional review - decide whether agency’s action was constitutional, non-delegation doctrine, SOP violations in enabling act, procedural DP
(2) procedural review - make sure agency procedures lawful, agency followed proper procedures before deciding to affect individ rights. Court can’t go beyond legal reqts for action (VY).
(3) substantive review - was agency’s substantive decision lawful?

Question 49

Judicial Review of Agency Findings of Fact

Answer 49

• deference to agency, REASONABLENESS standard. Formal proceedings = substantial evid.
• If agency gets facts wrong, violating statute & authority, same as if interpreted statute wrong.
• Its finding that 1ppm is level of exposure that’s both healthful & feasible must be correct
• primary responsibility w/ agency b/c it will do better at this specialized factfinding, expertise.
  • Ct when reviewing agency’s factual findings asks whether findings are reas given evidentiary record.
  • Formal proceeding = substantial evid standard, but cts interpret as whether a “reasonable mind” would consider evid in record to support findings.
  • Informal proceeding = ct asks whether agency finding is arbitrary or capricious, but ct deploys this by asking whether agency’s fact finding was reas based on evid agency had before it.
• For decision to be legitimate, must be grounded in reason, depends on context & nature of decision
• E.g., formal proceeding - agency doesn’t have to go w/ ALJ’s decision, but must show why there’s a discrepancy, why it trumped ALJ, based on reason
• Informal proceedings - most think reasonable not as stringent here (arbitrary & capricious)

Question 50

Judicial Review of Agency Legal Conclusions

Answer 50

• Constituional issue & when agency interprets statute of gen application (e.g., APA) - ct takes lead, doesn’t give agency interpretation deference
• Hard when agency interprets its enabling act
– Skidmore is default
(1) if statute (Congress) is clear, then ct looks independently (no deference)
(2) if not clear, ct looks to agency interpretation to extent *trustworthy & *persuasive (procedures used, public participation, etc.)
- ultimate decision on statutory meaning w/ ct, but may go w/ agency interpretation
- E.g., prudent can’t mean cost/benefit bc you’d go through park every time, ct didn’t defer to agency interpretation. But work time hours, statute was silent and ct not an expert, so defer to agency if trustworthy / persuasive interpretation
– Chevron (deferential) FOR
- when agency interpreting EA w/ force & effect of law, here meaning legally binding PLUS agency has made interpretation w/ deliberation
- NOT informal adj made on spot w/o procedures (customs) - not deliberative, no precedential effect, more like guidance docs than rule.
- YES for N&C and formal adjudication

Question 51

Chevron

Answer 51

• when agency interpreting w/ force & effect of law, meaning legally binding PLUS agency made interpretation w/ deliberation
• deferential - agency primary in decisionmaking
• Step 0 - a statute the agency administers?
• Step 1 - Has Congress spoken clearly to the precise issue? If yes, ct enforces it.
• Step 2 - If not, only look to see if agency interpretation is reasonable.
• Application of Chevron:
  
  • cts sometimes see statutory clarity where none
  • cts sometimes import arbitrary & capricious standard into Step 2, harder look
• NO Chevron deference for:
  
  • agencies interpreting constitutional issues
  • interpreting general statutes (APA) bc no agency administering it
  • interpreting judicial opinions that interpret EAs
  • when interpretation has NO force & effect of law (not legally binding & made w/ deliberation)
• Agency must earn Chevron deference by making interpretation in thoughtful lawmaking process

Question 52

Judicial Review of Agency Discretion & Policymaking

Answer 52

• agency application of statutory standards to facts
• RM e.g. - 1ppm is right choice on these facts under this statutory standard. Even if facts & law right, have you properly applied law?
• Adj. e.g. - Agency decides Chenerys must give up stock, apply fair & equitable standard - keeping stock not fair and equitable.
• Hard Look Rev. - reasonableness, A&C standard
  
  • cts take hard look at agency’s decision to make sure agency took hard look before making decision (didn’t just flip a coin)
  • ct must be satisfied agency took hard look at issues, reasoning must be discernible, can’t leave ct guessing as to agency’s findings or reasons
  • (1) was decision based on consideration of relevant factors?
  • (2) did decision show clear error in judgment?
  • agency must give written decision to show how they interpreted statute, how they found facts, & how they applied law to facts.
  • based on what agency did, not lawyers, what agency actually relied on at the time
• Applies to deregulation, too - must investigate, have evid & facts upon which you base judgment. Can’t just start deregulating bc administration changed - reasoned decision

Question 53

Administrative law problem order for procedural issues

Answer 53

1. SOP issues? (e.g., nondelegation doctrine, legislative veto)
2. Look at enabling act - if particular procedures required, no APA (APA procedural only)
   3 Look at APA to fill in blanks of EA procedure
3. Does the agency action affect individual rights? Recall definition of agency. If not, APA doesn’t apply. If yes, then:
4. RM or adjudication? Must be one, not both
   
   • use Londoner-BiM, then rationalize under APA
5. Does the action require formal or informal proceedings? One or the other.

Question 54

Rundown of informal RM problem

Answer 54

1. NPRM adequate?
   
   • opportunity for meaningful comment?
   • clear communication to commenters re range of alternatives being considered?
   • technical studies / data relied upon disclosed? UNLESS: logical outgrowth?
2. Agency give comments reasoned consideration? (shown in final rule and statement of basis and purpose)
3. Final Rule & Statement of Basis & Purpose adequate?
   
   • justification for rule?
   • description of factual findings / evid based on
   • reasoned explanation for rejecting any comments that would have led to diff rule?
4. Exemptions?
   
   • policy statement / interpretive rule (guidance)?
   • procedural rule?
   • good cause exemption? (N&C impracticable, contrary to public interest, unnecessary)