Cases

Question 1

National Federation of Independent Business (NFIB) v. Department of Labor, Occupational Safety and Health Administration (OSHA), 2022

Facts

Answer 1

OSHA implemented a vaccine mandate on all private businesses with more than 100 employees.

Question 2

National Federation of Independent Business (NFIB) v. Department of Labor, Occupational Safety and Health Administration (OSHA), 2022

Holding

Answer 2

Congress never granted OSHA that level of authority because vaccines go beyond the workplace.

The Act does not plainly authorize the Secretary’s mandate.

Question 3

National Labor Relations Board (NLRB) v. Noel Canning (2014)

Facts

Answer 3

President Obama made three appointments (3 of 5) to the NLRB during a three day break between two “pro forma” sessions of Senate.

Question 4

National Labor Relations Board (NLRB) v. Noel Canning (2014)

Holding

Answer 4

POTUS may invoke the Recess Appointments Clause to fill a vacancy that exists during any sufficiently long senate recess. These appointments violated the recess appointments clause because technically the senate was still in session.

Question 5

A.L.A. Schechter Poultry Corp. v. United States (1935)

Facts

Answer 5

Parts of National Industrial Recovery Act (NIRA) gave the President the power to approve regulatory codes created by industries

Question 6

A.L.A. Schechter Poultry Corp. v. United States (1935)

Holding

Answer 6

1. Congress may not delegate legislative power to the executive without outlining strict standards for how the executive is to exercise that power;
2. 2) Congress does not have the authority to regulate wholly intrastate activities that have only an indirect effect on interstate commerce.

Question 7

Carter v. Carter Coal Co., (1936)

Holding

Answer 7

Power cannot be delegated to “private persons whose interests may be and often are adverse to the interests of others in the same business.”

Question 8

Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980)

Facts

Answer 8

The Secretary of Labor pursuant to OSHA issued a standard relating to airborne concentrations of benzene, a carcinogen.

Question 9

Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980)

Holding

Answer 9

In promulgating standards regarding exposure levels to carcinogens, the Secretary of Labor must make appropriate finding that exposure presents a significant health risk in the workplace at higher levels in order to set exposure levels at the lowest possible level.

Struck down the standard.

Question 10

Mistretta v. United States (1989)

Holding

Answer 10

Congress may delegate authority to set sentencing guidelines to a judicial commission, provided that it gives an intelligible principle to guide the commission and does not aggrandize the judicial branch at the expense of another branch.

Question 11

Whitman v. American Trucking Associations, Inc. (2001)

Facts

Answer 11

The Clean Air Act required the Administrator of the Environmental Protection Agency (D) to promulgate rules regarding air pollution, and the rules were challenged as an unconstitutional delegation of legislative authority.

Question 12

Whitman v. American Trucking Associations, Inc. (2001)

Holding

Answer 12

1. A congressional grant of rule making authority is not an unconstitutional delegation of legislative authority if the statute has an intelligible principle to guide the exercise of the authority.
2. Under §109 of the Clean Air Act, the EPA Administrator may not consider implementation costs in setting national ambient air quality standards.

Question 13

Mistretta v. United States (1989)

Facts

Answer 13

Congress enacted the Sentencing Reform Act of 1984 establishing a US Sentencing Commission and directed it to promulgate sentencing “guidelines” for determining the length of sentences. These were then binding on sentencing judges.

This was an independent commission in the judicial branch.

Question 14

West Virginia v. EPA (2022)

Facts

Answer 14

The agency found that CO2 was a hazard and sought to implement changes to both new plants and existing plants to regulate CO2. The new would entail billions of dollars in compliance costs, require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various

Question 15

West Virginia v. EPA (2022)

Holding

Answer 15

Brings the Major Question Doctrine into the light. If there is a major question, the agency must show they have clear authorization from Congress to act on it.

The EPA overextended its authority.

Question 16

Immigration and Naturalization Service v. Chadha (1983)

Facts

Answer 16

Chadha overstayed his student visa, but was allowed to stay in the US by the INS. Pursuant to immigration law, the House overruled the INS forcing Chadha to seek relief from the Judiciary.

Question 17

Immigration and Naturalization Service v. Chadha (1983)

Holding

Answer 17

• Once Congress delegates authority to a gov’t agency, it may not legislatively overrule or veto decisions made by the agency pursuant to the delegated authority without following the constitutional procedures of bicameralism and presentment mandatory for enacting legislation.
• Legislation providing Congress with a one-house veto over an action of an executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism.

Question 18

Robertson v. Seattle Audubon Society (1992)

Facts

Answer 18

US Forest Service & Bureau of Land Management devised a compromise plan to allow logging in some portion of forest while preserving other portion to protect the spotted owl. While pending before the 9^th Cir., Congress approved of compromise via an appropriations rider.

Question 19

Robertson v. Seattle Audubon Society (1992)

Holding

Answer 19

• Congress clearly intended the rider to resolve the issues in the lower court. As long as it is clear, riders can be used to amend/alter the enabling act.
• Can Congress use an appropriations bill to rewrite an Enabling Act?—yes.

Question 20

Clinton v. City of New York (1998)

Facts

Answer 20

President Clinton, under the Line Item Veto Act, cancelled two line items of spending from the federal budget; beneficiaries of the budget items brought an action to restore the allocations.

Question 21

Clinton v. City of New York (1998)

Holding

Answer 21

Use of the Line Item Veto Act to cancel spending for a budget item violates the Constitution by permitting the virtual amendment of Congressional acts by the President.

Dissent: Scalia says they don’t violate the Presentment Clause.

Question 22

Youngstown Sheet & Tube Co. v. Sawyer (1952)

Facts

Answer 22

Steel workers threatening strike during Korean War. Pres Truman ordered Sec. of Commerce to take over all steel mills. POTUS told Congress but they did nothing.

Question 23

Youngstown Sheet & Tube Co. v. Sawyer (1952)

Holding

Answer 23

POTUS may not engage in lawmaking activity absent an express authorization form Congress or the text of the Constitution

Question 24

Buckley v. Valeo (1975)

Facts

Answer 24

Congress created the Federal Election Commission with 6 voting commissioners. The President was given power to appoint only 2 of the commissioners, a provision being challenged as a violation of the Appointments Clause.

Question 25

Buckley v. Valeo (1975)

Holding

Answer 25

All “Officers of the United States,” or those who exercise substantial power in enforcing the laws through the use of criminal and civil legal proceedings, must be appointed but he President pursuant to the Appointments Clause, regardless of which branch created the office.

The Appointment Clause, contained in Article II of the Constitution, vests the power to appoint “Officers of the US” exclusively in the President.

Question 26

Edmond v. United States (1997)

Facts

Answer 26

SCOTUS granted certiorari to consider whether the appointment of military appellate judges by the Sec. of Transportation was constitutional.

Question 27

Edmond v. United States (1997)

Holding

Answer 27

The appointment of judges of the Coast Guard Court of Criminal Appeals is in conformity with the Appointments Clause of the Constitution because those judges are “Inferior Officers” within the meaning of the Clause, by reason of the supervision over their work exercised by the General Counsel of the Department of Transportation in his capacity as Judge Advocate General and the Court of Appeals for the Armed Forces.

“Inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.

Question 28

Marbury v. Madison (1803)

Holding (for Admin)

Answer 28

Although POTUS generally had the power to remove such officers, that power did not extend to officers whose commission granted them the right to serve a specified time without subjecting them to presidential removal.

Question 29

Myers v. United States (1926)

Facts

Answer 29

Postmaster of Portland, OR was fired by POTUS pursuant to Congressional statute.

Question 30

Myers v. United States (1926)

Holding

Answer 30

• The U.S. Constitution grants the president the sole power to remove executive officers. Congress was intruding.
• Written by President Taft

Question 31

Humphrey’s Executor v. United States (1935)

Facts

Answer 31

FTC commissioner was appointment for a 7-year terms by President Hoover. 2 years into that term, President Roosevelt asked for his resignation so his spot could be filled by someone of Roosevelt’s choosing. He refused to resign. Roosevelt fired him.

Question 32

Humphrey’s Executor v. United States (1935)

Holding

Answer 32

• POTUS’s power to remove an executive branch official is not applicable to officials with quasi-legislative or quasi-judicial functions.
• The president’s power to remove an executive branch official is not applicable to officials with legislative or judicial functions. The president was bound by a statute restricting his right to remove a principal officer of an independent commission only for cause.
  
  • President may make the removal but only for-cause.

Question 33

Bowshar v. Synar (1986)

Facts

Answer 33

Congress passed a law giving the Comptroller General, effectively a congressionally controlled official, powers to interpret and execute the law’s provisions.

The law is being challenged as a constitutional violation of separation of powers doctrine.

Question 34

Bowshar v. Synar (1986)

Holding

Answer 34

Separation o flowers concerns bar Congress from vesting in itself the power to remove, through means other than impeachment power, officials possessing authority to interpret and execute the laws.

Question 35

Seila Law v. CFPB (2020)

Holding

Answer 35

• An administrative agency may not be headed by a single director who is not removable by the President. Resets everything back to Myers.
• Majority: There is no room for creativity here in Congress attempting to control removal powers.

Question 36

Seila Law v. CFPB (2020)

Facts

Answer 36

After the 2008 financial crisis, congress created the Consumer Financial Protection Bureau (CFPB). Unlike every other agency with a board, this is headed by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance.

Question 37

Morrison v. Olson (1988)

Facts

Answer 37

Olson challenges a provision of the Ethics in Governance Act allowing a court in the federal judiciary to appoint a special prosecutor in the executive branch tasked with investigating high gov’t officials

The Independent Counsel was appointed by the Special Division of the DC Circuit Court of Appeals to investigate a high-ranking government official, and the official responded by claiming that the appointment of Independent Counsel was unconstitutional.

Question 38

Morrison v. Olson (1988)

Holding

Answer 38

• A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting the Attorney General from removing the officer without good cause does not violate separation-of-powers principles.
• Since the Independent Counsel is an inferior officer, a law giving judges the authority to appoint an Independent Counsel did not violate the Constitution.

Question 39

Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)

Facts

Answer 39

The Public Company Accounting Oversight Board’s officers could be removed by the SEC only for cause, and the SEC commissioners could be removed by the President only for cause. The Free Enterprise Fund argued that this double-layered limitation as unconstitutional.

The board is composed of 5 members, appointed to staggered 5-year terms by the S.E.C. They can’t be removed by SEC without cause

Question 40

Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)

Holding

Answer 40

• Multi-level protection of executive officers from remover is contrary to Article II’s vesting of the executive power in the President.
• A President may not be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, because such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed.
  • This double layer of for-cause insulation is super unconstitutional.

Question 41

United States Telecom. Ass’n v. Federal Trade Commission (D.C. Cir. 2004)

Holding

Answer 41

Under administrative law, a federal agency may not subdelegate its decision-making authority to entities outside the federal government.

Question 42

Citizens to Preserve Overton Park v. Volpe (1971)

Facts

Answer 42

The plaintiffs contend that the defendant violated Federal statute by authorizing the expenditure of federal funds for the construction of a highway through a public park.

Question 43

Citizens to Preserve Overton Park v. Volpe (1971)

Holding

Answer 43

When reviewing an agency decision, the § 706 of the APA requires courts to consider

1. Whether the agency acted within the scope of its authority;
2. Whether the agency’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”; and
3. Whether the agency’s action met the necessary procedural requirements.

Question 44

SEC v. Chenery (1943) (Chenery I)

Holding

Answer 44

A court of appeals cannot uphold an administrative agency’s order on grounds other than those on which the agency relied in making the original determination.

Question 45

United States v. Morgan (1941) (Morgan IV)

Holding

Answer 45

“Just as a judge cannot be subjected to such a scrutiny (ie interrogatories at trial court) so the integrity of the administrative process must be equally respected.”

Question 46

Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Ins. Co. (1983)

Facts

Answer 46

When an agency first enacted a rule that cars be equipped with airbags or passive seatbelts, then rescinded the rule, an auto insurer challenged the rescission as “arbitrary and capricious”

Question 47

Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Ins. Co. (1983)

Holding

Answer 47

Agencies’ rescission of their own rules are reviewable under the “arbitrary and capricious” standard, meaning they must be rational, based on relevant considerations, and within eh agency’s statutory authority.

When an agency rescinds a regulation, it must explain the evidence underlying its decision, and a rational connection between the facts found and the choice made.

• State Farm tells us:
  
  • (1) §706(2)(A) stands for arbitrariness is same for new rule and recission of rule.
  • (2) Scope of Review under §706(2)(A) is narrow but court will insist the agency shows its work.
    
    • Relevant data and offer a satisfactory explanation and reveal a rational relation between them.

Question 48

Dep’t of Commerce v. New York (2019)

Facts

Answer 48

Secretary of Commerce decided to reinstate a question about citizenship on the 2020 census questionnaire.

Rule Change Case.

Question 49

Dep’t of Commerce v. New York (2019)

Holding

Answer 49

An agency decision is arbitrary and capricious if it rests on a pretextual basis.

• It was not arbitrary and capricious but it was pretextual
  
  • Look at the record and justification at the time of the agency action. What was in the record at the time?

Question 50

Federal Communications Commission v. Fox Television Station (2009)

Facts

Answer 50

The FCC created a new policy around swearing and indecent language on TV.

Question 51

Federal Communications Commission v. Fox Television Station (2009)

Holding

Answer 51

The APA generally does not require an agency to show that its new policy is preferable to existing policy it replaces.

Question 52

Encino Motor Cars, LLC v. Navarro (2016)

Holding

Answer 52

An administrative agency’s regulation is not entitled to Chevron deference if the regulation is procedurally defective.

Question 53

Department of Homeland Security v. Regents of Univ. of CA (2020) (DACA Case)

Holding

Answer 53

Agency action is arbitrary & capricious if an agency does not state reasons for the action at the time it takes the action.

Question 54

Massachusetts v. EPA (2007)

Facts

Answer 54

The State of Massachusetts and others urged that the EPA promulgate new motor vehicle emissions standards limiting the emission of carbon dioxide due to its role in climate change, and the agency refused

Question 55

Massachusetts v. EPA (2007)

Holding

Answer 55

Because greenhouse gases fit squarely within the Clean Air Act’s definition of air pollutant, the EPA has the authority to regulate the emission of such gases from new motor vehicles. Since the Clean Air Act could be interpreted as including CO2, the EPA can’t refuse to issue regulations dealing with CO2.

Question 56

National Labor Relations Board (NLRB) v. Hearst Publications (1944)

Facts

Answer 56

Four newspaper publishers refused to bargain collectively with a union representing “newsboys” who distributed newspapers claiming that the newsboys were not “employees” within the meaning of the NLRA.

Question 57

National Labor Relations Board (NLRB) v. Hearst Publications (1944)

Holding

Answer 57

The NLRB’s determination that specified persons are “employees” under the NLRA is to be accepted if it has warrant to the record and a reasonable basis in law.

Question 58

Skidmore v. Swift & Co. (1944)

Holding

Answer 58

Although a federal administrative agency’s rulings, interpretations, and opinions are not controlling on courts, they are entitled to respect and may be used for guidance by courts & litigants.

Question 59

Chevron v. Natural Resources Defense Council (1984)

Facts

Answer 59

When the EPA interpreted the Clean Air Act to allow polluting factories to add new equipment while keeping pollution levels constant, environmentalists claim the Act should be interpreted to reduce pollution.

Question 60

Chevron v. Natural Resources Defense Council (1984)

Holding

Answer 60

If an agency’s interpretation of its enabling statute is challenged, (1) reviewing courts must first independently determine if the statute clearly requires or forbids the agency’s interpretation, then (2) if the statute is ambiguous, courts must uphold the agency’s interpretation if it is a permissible construction of the statute.

If a statute administered by an agency is silent or ambiguous with respect to a specific issue, a reviewing court may not simply impose its own construction on the statute.

Question 61

MCI Telecommunications Corp. v. AT&T (1994)

Facts

Answer 61

The term “modify any requirement” is in question. Agency wants to dump all tariffs in general

Question 62

MCI Telecommunications Corp. v. AT&T (1994)

Holding

Answer 62

An agency’s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear

Question 63

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)

Facts

Answer 63

ESA defined the term “take” to include “harm.” The Secretary broadly defined “harm” to include “significant habitat modification or degradation”

Question 64

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)

Holding

Answer 64

The Secretary of the Interior possesses the authority pursuant to the Endangered Species Act to define the term “harm” broadly to encompass direct injury or death to endangered animals and indirect actions including the destruction of a species’ habitat and breeding grounds.

Question 65

FDA v. Brown & Williams Tobacco Corp (2000)

Facts

Answer 65

FDA interpreting “drug” and “device” to include cigarettes

Question 66

FDA v. Brown & Williams Tobacco Corp (2000)

Holding

Answer 66

• The FDA does not have authority to regulate tobacco products.
• Court finds the terms are ambiguous but won’t look to the reasonableness because Congress has spoken so clearly on this topic (ie, major question)
• Super exceptional case where agency should be granted deference but Court says no because of Congressional tumult.

Question 67

Utility Air Regulatory Group v. EPA (2014)

Facts

Answer 67

“Air pollution” in stationary sources

Question 68

Utility Air Regulatory Group v. EPA (2014)

Holding

Answer 68

A federal agency’s statutory interpretation is not entitled to judicial deference if the agency rewrites clear statutory terms.

• Unreasonable because would expand their power to control all industry.
• Court holds “air pollution” relative to “stationary sources” is unclear, so look to see if agency is giving a reasonable interpretation. They hold no.

Question 69

National Cable & Telecommunications Ass’n v. Brand X Internet Servs (2005)

Facts

Answer 69

Statutory Interpretation question, under Telecommunications Act of ’96, how to classify Internet Service provided by cable-modem-based ISPs:

• Option 1: As “Telecommunication Service” subject to mandatory common-carrier style regulation by the FCC
  
  • 9^th Cir. In 2001 said ISPs are a “telecommunication service”
• Option 2: As an “Information Service” that’s basically exempt from regulations.
  
  • After 9^th Cir. 2001 holding, FCC came out and said, no, ISPs are “information services”

Question 70

National Cable & Telecommunications Ass’n v. Brand X Internet Servs (2005)

Holding

Answer 70

A court’s prior judicial construction of a statute controls over an administrative agency’s construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion

Question 71

United States v. Mead Corp. (2001)

Facts

Answer 71

The Customs Service issued a ruling letter classifying planners as diaries, and Mead challenged that ruling.

Question 72

United States v. Mead Corp. (2001)

Holding

Answer 72

Administrative implementation of a statutory provision is entitled to Chevron deference if Congress delegated to the agency authority to make rules with the force of law, and if the agency interpretation was promulgated in the exercise of that authority.

Actions aren’t binding. They are neither rules nor adjudications.

Question 73

City of Arlington v. FCC (2013)

Holding

Answer 73

Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.

But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter.

Question 74

Kisor v. Wilke (2019)

Holding

Answer 74

In general, courts should defer to an agency’s interpretation of its own regulation. Upholds Auer** and **Seminole Rock deference but reinforces its limitations.

• Test: (1) Genuine ambiguity; (2) Reasonableness; (3) Whether the character & context entitles it to deference

Question 75

Universal Camera Corp. v. NLRB (1951)

Holding

Answer 75

A court should defer to a federal agency’s findings of fact if they are supported by “substantial evidence on the record considered as a whole”

Question 76

In the matter of Universal Camera Corp. (NLRB, 1948)

Board Holding

Answer 76

“A preponderance of the evidence shows that Chairman’s discharge was due to Respondent’s resentment against Chairman because he had testified for the Union at a representation hearing on Nov. 30, 1943”

Violation of NLRA (contrary to NLRB judge finding no violation)

Question 77

NLRB v. Universal Camera Corp. (2d 1950) (Universal Camera 1)

Holding

Answer 77

An appellate court cannot consider a trial examiner’s report on questions of fact if the report was rejected by the reviewing administrative agency below.

Question 78

NLRB v. Universal Camera Corp. (2d 1951) (Universal Camera 2)

Holding

Answer 78

A trial examiner’s findings as to the veracity and credibility of witnesses should not be overruled unless the overruling is supported by a very substantial preponderance of the evidence.

Question 79

Sierra Club v. Morton (1972)

Holding

Answer 79

A membership organization’s mere interest in a problem, without a showing that its members would suffer actual injury, is not sufficient to show that the entity has standing to seek judicial review of an action by a federal agency.

Question 80

US v. Students Challenging Regulatory Agency Procedures (SCRAP) (1973)

Holding

Answer 80

Granted students, who were suing the ICC for unlawfully failing to prepare an environmental impact statement assessing the impact of increasing railroad shipping rates, standing because they “claimed that the specific and allegedly illegal action of the ICC would directly harm them in their use of the natural resources of the Washington Metro Area”

Question 81

Lujan v. Defenders of Wildlife (1992)

Facts

Answer 81

In 1978, the Fish & Wildlife Services and the National Marine Fisheries Services, on behalf of the Secretary of the Interior & Secretary of Commerce promulgated a joint regulation stating that the obligations imposed by the Endangered Species Act §7(a)(2), which requires all agencies to consult with Sec of Interior to ensure their actions don’t violate the ESA, extended to actions taken in foreign nations. In 1986, a joint regulation reinterpreted §7(a)(2) to require consultation only for actions taken in the US or on the high seas. Enviros were mad at ’86 regulation and tried suing.

Question 82

Lujan v. Defenders of Wildlife (1992)

Holding

Answer 82

Under Art. III of the Constitution, a party does not have standing to litigate a generalized grievance against the gov’t in federal court if she suffers no personal injury other than the harm suffered by all citizens.

Question 83

Massachusetts v. EPA (2007)

Holding (for standing)

Answer 83

For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly adversarial relationship.

• “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury‑causing party to reconsider the decision that allegedly harmed the litigant.
• A state litigant creates more permissive.

States should get more flexibility. A special statutes. Majority holds we should have a very generous reading of injury and redress

Question 84

United States v. Allegheny-Ludlum Steel Corp. (1972)

Facts

Answer 84

After the federal agency regulating railroad rates enacted some rules without hearing, dissatisfied railroad users sued, contending “formal rule making” and a hearing were required.

Question 85

United States v. Allegheny-Ludlum Steel Corp. (1972)

Holding

Answer 85

When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires that the agency follow the formal rulemaking procedures set forth in §§556-67.

• §§56 & 557 need be applied “only where the agency statute, in addition to providing a hearing prescribes explicitly that it can be ‘on the record’”
• The term “hearing” isn’t enough, but if the statute says they essentially want a trial (ie, experts, presentation of evidence, cross examination, etc. it may be enough)

Question 86

United States v. Florida East Coast Railroad Co. (1973)

Facts

Answer 86

While the ICC’s enabling statute requires rate regulations to be made “After hearing” the ICC made rules after accepting only written comments. Regulated railroads sued, contending this “hearing” was inadequate.

Question 87

United States v. Florida East Coast Railroad Co. (1973)

Holding

Answer 87

When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires that the agency follow the formal rulemaking procedures set forth in §§556-67.

Question 88

Chocolate Manufactures Ass’n v. Block (4th Cir. 1985)

Facts

Answer 88

The agency administering subsidized food proposed a rule disallowing high-sugar cereals (but continuing to allow flavored milk), yet after receiving comments, it enacted a final rule disallowing chocolate milk. Chocolate milk makers sued, claiming insufficient notice.

Question 89

Chocolate Manufactures Ass’n v. Block (4th Cir. 1985)

Holding

Answer 89

If a proposed rule is later revised, the original notice was adequate if the revisions “are in character with the original scheme,” and the final rule is a “logical outgrowth” of the notice.

APA §553(b)(3) requires that the notice of a proposed rulemaking in the Federal Register contain either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Question 90

Long Island Care at Home, Ltd v. Coke (2007)

Holding

Answer 90

The agency’s actions following notice & comment were reasonably foreseeable and therefore properly in line with §553(b)(3).

Final rule was a “foreseeable result” of the proposed rule.

Question 91

US v. Nova Scotia Food Prods. Corp. (2d Cir. 1977)

Facts

Answer 91

Agency made a rule about smoking fish but treated all fish the same

Question 92

US v. Nova Scotia Food Prods. Corp. (2d Cir. 1977)

Holding

Answer 92

An agency promulgating a rule through informal notice-and-comment rulemaking is required to provide a concise general statement that identifies the major issues of policy considered by the agency and the rationale for reacting to those issues.

Question 93

Home Box Office (HBO) v. FCC (D.C. Cir. 1977)

Facts

Answer 93

An agency initiated rule making about cable TV standards, accepted comments through the end of the comment period, then solicited and received hundreds of off-the-record communications from cable companies.

Question 94

Home Box Office (HBO) v. FCC (D.C. Cir. 1977)

Holding

Answer 94

Ex parte communications with an agency prior to the issuance of a formal notice of rulemaking must be disclosed to the public in some form if such communications from the basis for an agency action.

• Now dead. Courts have now shifted to thinking these ex parte contacts are a good thing. This is the courts pulling back out of agency controlling.
• Informal ex parte information should eventually be disclosed, especially if the contacts would frustrate judicial review or cast doubt on fairness.

Question 95

Sierra Club v. Costle (D.C. Cir. 1981)

Facts

Answer 95

When the EPA lowered emissions standards after accepting post-comment period comments, and then having off-record meetings with lobbyists, politicians, and the President, environmentalists challenged the rules’ procedural validity.

Question 96

Sierra Club v. Costle (D.C. Cir. 1981)

Holding

Answer 96

The EPA, in rule making,

1. May accept comments submitted after the comment period, without giving notice, and refuse to docket such late comments if they are not “of central relevance to the rule making”;
2. May have off-record meetings after the comment period with lobbyists and politicians, and refuse to docket the transcript of such meetings if they are not “of central relevance”; and
3. May have off-record meetings with other Executive Branch officials, White House officials, or the President, and must not docket those meetings’ transcripts unless “information or data” from them formed the basis of the rule.

Question 97

D.C. Federation of Civic Ass’ns v. Volpe (D.C. Cir. 1971)

Holding

Answer 97

Full pressure, such as a Representative threatening to hold up all funding until the agency does what he wants is “sufficient, standing alone, to invalidate an agency’s action in conformity to that pressure.”

• This is impermissible contact; if it happens, put it in the record.
• The Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations.

Question 98

Ass’n of Nat’l Advs. Inc. v. FTC (D.C. Cir. 1979)

Holding

Answer 98

An agency member may be disqualified from participating in rulemaking if there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding.

• The mere discussion of policy or advocacy on a legal question is not sufficient to disqualify an administrator.

Question 99

National Resources Defense Council, Inc. v. Nuclear Regulatory Commission (D.C. Cir. 1976)

Facts

Answer 99

Issued new rule that the waste issue doesn’t have to be part of the license adjudication

Question 100

National Resources Defense Council, Inc. v. Nuclear Regulatory Commission (D.C. Cir. 1976)

Holding

Answer 100

A federal agency may not implement a rulemaking proceeding that does not give participants an opportunity to cross-examine witness or provide some other way of fully developing a factual record on a substantive issue.

Question: Was the NRC informal rulemaking relative to the waste issue that didn’t follow the same procedure as the licensure regime faulty since they didn’t follow same rules as license regime? Shouldn’t the rule & license process be the same? (Especially since they issued the rule to get around a suit involving Vermont license)

• District Court says yes. You were being sneaky and trying to get around your problem with licensing VT.

Question 101

Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc. (1978)

Facts

Answer 101

When an agency enacted atomic energy rules without allowing discovery or cross-examination of experts, an anti-nuke group challenged the procedure as denying meaningful participation.

Question 102

Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc. (1978)

Holding

Answer 102

Courts reviewing agency rule making procedures cannot impose additional procedural rights, absent constitutional constraints or extremely compelling circumstances.

Courts can’t demand more than the APA and statute call for.

Question 103

Am. Radio Relay League, Inc. v. FCC (D.C. Cir. 2008)

Holding

Answer 103

Under the APA’s notice-and-comment provisions, a federal agency must disclose the source data on which the agency’s proposed action is based.

Question 104

Nat’l Family Planning & Reproductive Health Ass’n, Inc. v. Sullivan (D.C. Cir. 1992)

Holding

Answer 104

If a federal agency adopts a new construction of an old legislative rule that substantially changes its effect on affected parties, the agency must abide by the notice-and-comment requirement of §553.

Question 105

Hoctor v. US Dep’t of Agriculture (7th Cir. 1996)

Holding

Answer 105

An agency rule that makes a reasonable choice among methods of implementation of a statute or regulation is not an interpretive rule, but rather a legislative rule.

Question 106

Texas v. United States (5th Cir. 2015)

Holding

Answer 106

If an administrative agency’s purported general policy statement is applied by the agency is a way that indicates that it is a binding rule, the rule requires notice-and-comment rulemaking.

Question 107

Lincoln v. Vigil (1993)

Holding

Answer 107

The APA does not permit judicial review of administrative decisions committed to agency discretion.