Arbitrary and Capricious Review

Question 1

APA 706

Answer 1

• reviewing court must hold unlawful + set aside agency action, findings, + decisions found to be arb + cap/abuse of discretion or otherwise not in accordance with law
• means agencies need to act with regularity + can’t make decisions that are arbitrary + capricious, must act w/ some modicum of reasonableness
• Prof cited State Farm

Question 2

Arbitrary and Capricious Review vs. MQD/Chevron

Answer 2

• arbitrary + capricious review – looking at whether there’s a reasonable relationship between the problem + the policy solution in the context of the evidence that the agency had (do the two fit together?)
• if they do, there’s still a q of whether this problem Cong gave agency authority to address + whether the solution is one Congress gave agency authority to choose (this is more in the agency discretion vein)

Question 3

DHS v. Regents of California - Timeline

Answer 3

*June 2012: DACA established (Obama DACA Memo)
*November 2014: DACA expanded & DAPA established (Obama memo again)
*November 2015: Texas v. US (CA5): Preliminary injunction affirmed against DAPA and expanded DACA.
->Not a non-enforcement policy - it creates substantive benefits. (this was part of the basis for the decision in TX)
->Needed prior notice and comment
->Violated immigration statutes (lawful presence/work authorization)
*June 2016: SCT (equally divided – 4-4 decision) affirms the 5th’s decision in Texas v. U.S. with no opinion
*June 2017: DAPA rescinded
*September 2017: Trump Administration rescinds DACA (Duke Memo)
->Some kind of provision in the statute saying Sec of Homeland Security is bound by the Attorney General’s position
*September 2017: DACA rescission challenged by lots of plaintiffs, including Regents
*January 2018: CA and NY district courts enjoin the rescission, holding it was arbitrary and capricious
*April 2018: DDC remands for new memo (DC was the third district court to weigh in, but instead of saying a + c outright they remand to ask agency to expand on the Duke memo + explain why agency did what it did)
->Secretary Nielsen has replaced Duke by this point
*June 2018 Nielson Memo re: DACA rescission
*November 2018: 9th affirms nationwide injunction to block rescission
->This is formally the case that comes to the court, but SCOTUS draws on all the others

Question 4

DHS - Nielsen Memo

Answer 4

• post hoc rationalization
• What options did Nielsen have upon remand? -> offer fuller explanation, or promulgate recission all over again -> Nielsen goes with fuller explanation, BUT court says the memo gave new reasons (first reason related to the original reason, but the other two didn’t)
• Kavanaugh (dissent) arguing that the decision elevates form over substance -> Chief Justice responds – different aspects of accountability (parties can’t just invoke convenient litigation positions, + also need to give opportunity for parties + public to respond fully + in a timely manner to agency exercise of authority -> instill confidence that the agency’s explanation is the real reason + not just a convenient litigation position)

Question 5

DHS - Arbitrary + Capricious Review

Answer 5

• initial decision said 5th Cir said DAPA unlawful, so DACA must also be unlawful
• BUT 5th Circuit found the benefits component of DACA unlawful but not the forbearance policy
• agency failed to consider an important aspect of the problem -> analogy to State Farm – basically, the concept is they could’ve rolled back only part of this, but instead of considering that they insisted they had to roll back the whole thing

Question 6

Eidelson Blog Post + Nielsen Decision Not to Redo

Answer 6

• discusses accountability for political decisions (Prof said Nielsen unwilling to own full decision)
  -> owning a new decision would’ve been a lose-lose situation for the Administration (would’ve made it longer for folks who wanted to rescind, + potentially much bigger response)
  -> practical considerations (new decision probs would’ve mooted out other litigation, would’ve needed to start all over -> delay)

Question 7

Substantial Evidence Review

Answer 7

• Prof briefly discussed
• Universal Camera Corporation v. NLRB
• reviewing court can set aside agency decision when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light that the record in its entirety furnishes, including body of evidence opposing agency’s decision
  *Court needs to look at all the evidence, not just that supporting agency decision

Question 8

Remedies

Answer 8

• Declaratory + injunctive relief available in actions against agencies unless Congress has specifically provided otherwise
• Has become a very high profile issue
• Debate over courts ordering remand without vacatur (court finds agency has erred in some manner, but remands to the agency without vacating the rule)
  -> Logic – might cause less disruption if the rule is important
• Broad use of vacatur – Judge Kazell piece (debate about whether vacatur constitutes setting aside)

Question 9

Remedies and Forum Shopping

Answer 9

• problem of universal vacatur as a remedy with phenomenon of forum shopping – litigants going to particular district courts to get outcome they want without any other courts weighing in (nationwide impacts, goes to shadow docket)

Question 10

Vacatur vs Injunction

Answer 10

• effects can be similar, but vacatur operates on the rule itself, vs. injunctions operate on the parties

Question 11

Dept of Commerce v. NY - Facts

Answer 11

• 2019
• ct reviews factual history not unusual to have citizenship census q
• Ross urged staff to find ways to include citizenship q in census
  -> His initial stated reason – DOJ need for better data to enforce Voting Rights statutes (citizen voting age population data needed to enforce Voting Rights Act) -> said he considered three options, + decided to combine last two (add census q + extrapolate out w/ data from other agencies)

Question 12

DOC v. NY - Standing

Answer 12

• Injury to states that would expect to have their census count diminished by the impact of adding a citizenship question
  -> Court finds that this is not merely speculative – New York at least has standing

Question 13

DOC v. NY - Reviewability

Answer 13

• 701(a)(2) – Census Act includes duty to conduct census that is accurate + fairly accounts for representation rights (there’s enough of a standard to apply)

Question 14

DOC v. NY - Litigation Proceedings

Answer 14

• initial admin record gets filed, then Ross submits additional memo at DOJ’s urging -> stated that he had begun considering the addition of a citizenship question in early 2017 and had asked whether DOJ would formally request its inclusion
• District Court then approves responds request to compel gov to complete admin record
• get 12,000 pgs added to record -> confirmed that the Secretary and his staff began exploring reinstatement of a citizenship question shortly after his 2017 confirmation, attempted to elicit requests for citizenship data from other agencies, and eventually persuaded DOJ to make the request
• court also authorized discovery outside the administrative record, including compelling a deposition of Secretary Ross, which SCOTUS stayed pending further review.

Question 15

DOC v NY - Arbitrary and Capricious Analysis

Answer 15

• SCOTUS essentially says the evidence is sufficient to support the addition of the q (standard of review, policymaking choice)
• restates what a + c is looking at – not looking at whether this is the best idea, just looking at whether it’s a reasonable policy choice
  -> note that this feels somewhat strange to me - court essentially winds up saying the explanation he gave was reasonable in light of the evidence + his stated goals, but then goes back in the pretext part and says we know now though that his stated goal was false

Question 16

DOC - Pretextual Issue

Answer 16

• ct holds Sec’s reasoning was pretextual
• not normal APA review (traditionally just looking at record before the agency) BUT now that they have the ev, don’t need to be blind to it
• openly says unstated reasons (political influence) okay, but here the problem is the ONLY reason stated was made up for unstated reasons

Question 17

DOC - Pretextual Quotes

Answer 17

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

“We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Question 18

What justifies the court looking behind the stated reasons to the unstated reasons?

Answer 18

• Looking at the motivation + setting a high standard
• “bad faith” + “improper behavior” get thrown around in the opinion
• The thing you’re saying is the reason should at least be among your real reasons

Question 19

DOC - Why does the ct think must invalidate the decision?

Answer 19

• key thing = agencies must “offer genuine justifications for enforcement decisions, reasons that can be scrutinized by the court and the interested public”
• judicial review needs to be more than empty ritual
• accountability - not just for. ct, but for public

Question 20

DOC - Ross’s Unspoken Motives

Answer 20

• Prof noted quiet part not said out loud – problem that Secretary Ross wanted to solve a problem that census act didn’t give him power to resolve (on some level, Ross wanted to suppress census responses in certain circumstances)
• Court never actually looks at why Ross undertook the subterfuge
• If we knew he came into office + started working on this immediately – if we knew response was to suppress census response, there’s some kind of Chevron problem (Congress didn’t give him this power)
  -> Purpose of the statute is openly stated as getting an accurate count
• So much left unsaid that it can be hard to know what the lesson we should take away is

Question 21

Eidelson Reading - DOC and DHS Cases

Answer 21

• argues what Chief Justice accomplished in these two cases is to establish political accountability as a consideration in administrative law
• tool for forcing an administration to pay the appropriate political price for its discretionary choices
• Prof noted complex ramifications though (her point about burden on agency officials of having their work frequently questioned)

Question 22

Prof’s Hypo About OSHA, COVID, and Meatpacking

Answer 22

• my own thought on this - distinguish based on combo of fact that Ross came in w/ unstated motivation effectively antithetical to statute’s purpose (vs hypo at least both purposes fulfill statutory goal) + also concept of unstated reasons okay as long as stated reason is somewhat legit
• Q of whether it matters that in DOC Secretary made other agencies come up with the fake rationale
• Q of whether it matters that there’s not as much of a significant mismatch here – both facets of safety
• Might be made okay because on some level the Secretary does care about the stated reason of knives (Prof followed up with whether it’s okay if the unstated reason is a larger concern)
• Prof noted hard to know now where the line is – there is a genuine tension, there are often contrived reasons
• Distinction between wholly puppet rationale (DOJ didn’t really need the data) vs a multi-faceted decision
• Concept of there is some extent of how this is supposed to work but can’t go this far
• We talked through how disruptive to the process it would be if DOC really did open up agency officials to depositions of what they were really thinking

Question 23

Universal Injunctions - Buckets of Potential Reform

Answer 23

*Prohibit non-party relief generally – would mean remedies only apply to those who challenge the policy
*Could limit the universal injunction by geography (would mean gov still has to defend in different places, continually defending selves on same policy in different districts)
*Judicial standing + procedures (amend fed rules of civ pro, create tougher judicial standards – can only issue nationwide injunction if gov official acting in bad faith)
->Would wind up making it harder to hold people to account
*Forum-shopping – to get a universal injunction you need three or five judges or something
-> Or go to DC (considered admin law expert + less politicized)

Question 24

Scholarly Debates Over Nationwide Injunctions

Answer 24

• Stop ordinary fact development of law (makes it harder for SCOTUs to look at how laws play out)
• Asymmetry – gov has to defend policy in so many different circuits, vs. pl only has to win in one
• End-run around class action
• Separation of powers
  -> Some scholars argue important check on executive/agency power
  -> Others saying we should leave this to the politically accountable branches