Judicial Review

Question 1

APA Section 10 standard of review

Answer 1

1. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
2. Contrary to constitutional right, power, privilege or immunity.
3. In excess of statutory jurisdiction, authority, or limitations, or short of statutory right.
4. Without observance of procedure required by law
5. Unsupported by substantial evidence in a case subject to sections 556 and 557 of the APA, or otherwise reviewed on the record of an agency hearing provided by statute.
6. Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.’’

Question 2

Questions of fact/policy: Overton Park

Answer 2

ii. SCOTUS: “If the statutes are to have any meaning the Secretary cannot approve the destruction of parkland unless he finds that the alternative routes present unique problems.”
iii. Rule: “court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”

Question 3

Questions of fact/policy (arbitrary and capricious): State Farm

Answer 3

Agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and choices made.

(1) Has the agency relied on the factors Congress did not intended it to rely on?
(2) Has the agency failed to consider an important aspect of the problem?
(3) Has the agency offered an explanation that runs counter to the evidence presented?
(4) Has the agency offered an explanation that is so implausible that it could not be described to a difference in view?

Question 4

Questions of fact/policy (arbitrary and capricious): FCC v. Fox

Answer 4

1. FCC’s liability order was “arbitrary and capricious” under the governing Administrative Procedure Act because the FCC had completely reversed its position on fleeting expletives without giving a proper justification. The Second Circuit also failed to find any evidence that the expletives were harmful.

Question 5

Questions of fact/policy (arbitrary and capricious): DHS v. Regents

Answer 5

1. “Here, the Agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA requirements. This dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.

Question 6

Questions of law: Chevron

Answer 6

1. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.
2. [Second,] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Question 7

Questions of law: Chevron Step 1: FDA

Answer 7

b. Basic answer: Congress has enacted numerous pieces of tobacco-related legislation over the years, and has never once chosen to include that regulatory scheme under the auspices of the FDA.

Question 8

Questions of law: Chevron Step 1: Babbitt

Answer 8

b. Dictionary definition, broad purpose of ESA, permits for indirect takings.

Question 9

Questions of law: Chevron Step 1: Mass

Answer 9

a. In declining to take any action, the EPA argued that the statute was sufficiently ambiguous to on this point, and that its decision to exclude greenhouse gases from the category of air pollutant agents was entitled to Chevron deference.

Question 10

Questions of law: Chevron Step 2: Purposes

Answer 10

a. Set aside agency interpretation if runs up against clear expression of Congressional will. E.g. UARG v. EPA (2014)
b. Assess whether the agency’s decision is reasonable on the merits and not “arbitrary and capricious in substance.” E.g. Cuozzo Speed Technologies v. Lee (2016)

Question 11

Questions of law: Chevron Step 2: UARG

Answer 11

d. EPA’s interpretation is not reasonable because it has such broad and sweeping impact on the entire country – permitting jumps from 800 to 82,000, billions in administrative costs, etc.

Question 12

Questions of law: Chevron Step Zero

Answer 12

Basic Question: Does an agency even have authority to take an administrative action?

Question 13

Questions of law: Chevron Step Zero: Skidmore factors

Answer 13

a. Thoroughness evident in its consideration
b. Validity of reasoning
c. Consistency with earlier and later pronouncements
d. All those factors which give it power to persuade if lacking power to control

Question 14

Questions of law: Chevron Step Zero: Mead

Answer 14

a. The letters produced by Customers cannot be given the force of law – they are churned out at 10,000 per year, and lack any semblance of typical rule-making authority.
b. Holding: vacated and remanded for a Skidmore analysis, which does grant agencies some deference.

Question 15

Questions of law: Chevron Step Zero: Barnhart

Answer 15

General rule for whether to apply Chevron

1. “the interstitial nature of the legal question,
2. the related expertise of the Agency,
3. the importance of the question to administration of the statue,
4. the complexity of that administration, and
5. the careful consideration the Agency has given the question over a long period of time

Question 16

Questions of law: Chevron Step Zero: Arlington v. FCC

Answer 16

Agency’s interpretation of its own jurisdiction (the scope of its regulatory authority) is entitled to Chevron deference.

Question 17

Question of law: Chevron Step Zero: Areas where Chevron does not apply

Answer 17

a. Agency litigating positions, and positions articulated for the first time in briefs.
b. Prosecution’s interpretation of criminal statute
c. Interpretations of a statute that implemented by multiple agencies

Question 18

Judicial deference to agency’s interpretation of its own rules: Kisor v. Wilkie

Answer 18

2. Auer administrative deference stems from Seminole Rock, and rides on the presumption of Congressional intent – that Congress wanted agencies to have some authority in interpreting its own rules – and the reality that agencies have expertise in these areas, expertise that judges often do not have.
3. An agency’s rule, however, must fit within several criteria – it must be actually made by the agency, the statute must be genuinely ambiguous, etc. And the application of Auer is not inconsistent with the APA, either. Judicial deference does not mean judicial abdication.

Question 19

Questions of fact or policy: substantial evidence: Universal Camera Corp.

Answer 19

Nothing in the Act suggests that the examiner’s report should be afforded any less weight then it “intrinsically demands.” It is as much a part of the record as anything else. The Court of Appeals should afford that part of the record “the relevance that they reasonably command in answering the comprehensive question of whether the evidence supporting the Board’s order is substantial.”

Question 20

Questions of fact or policy: substantial evidence: Biestek v. Berryhill

Answer 20

Witness chose not to provide documents to the Court demonstrating statistics in support of her conclusions. Court: “substantial evidence” means “more than a mere scintilla” and the proffered testimony should be enough.

Question 21

Questions of fact or policy: substantial evidence: outside of formal adjudication

Answer 21

Outside of formal adjudication, the “substantial evidence” standard does not apply.