Nonlegislative rules Flashcards
If APA requires timely notice of an agency policy in order to apply the policy to a regulated entity, is notice at the time the policy takes effect timely?
No.
What is required for equitable estoppel?
1) Detrimental reliance.
2) Reliance must be reasonable.
When can a benefit recipient not claim estoppel against the government if gov. employee’s bad advice led it to rely on the the advice to its detriment.
1) Not entitled to the benefit i.e. benefit was a mistaken payment from the treasury that the government now wants to recoup.
2) Its an organization the regularly deals w/ the gov. and “should know the law.” Not reasonable reliance.
When can a benefit recipient claim estoppel against the gov. if employee’s bad advice/misrepresentation led it to rely on the advice to its detriment?
1) When the recipient was actually entitled to the benefit. (welfare, unemployment). Still a due process argument, tho.
Do federal courts allow estoppel against the gov. in non-appropriations cases?
Rarely, but most refuse b/c reliance was not “reasonable” or they won’t use equitable estoppel to contradict a clear congressional mandate.
What additional showing do some fed. courts require to estop the gov?
Affirmative misconduct.
When might state courts allow estoppel against the government?
1) When the gov. acts in a proprietary, rather than governmental, capacity.
2) Affirmative misconduct from gov.
3) When the showing on traditional estoppel principles is stronger than normal.
Can you be held criminally liable for acting in reasonable reliance on the advice of a gov. agent?
No.
How might fed. courts find for a person against the government w/o estoppel or due process?
1) Elementary fairness.
2) Inconsistent application of agency interpretations.
Is an agency required to use informal rulemaking procedures to change an interpretive rule?
No, b/c it didn’t require notice and comment in the first place.
When level of deference do opinion letters get?
Skidmore deference, to the extent they have the “power to persuade.” Christensen.
What deference do interpretive rules get?
Maybe Chevron if:
1) Rule reflects longstanding agency policy.
2) Congress has acquiesced to position when amending statute.
3) Consistent with statute.
Other factors: interstitial legal question, agency expertise, importance of question to administration of statute, complexity of administration.
Court examines “interpretive method used” and “nature of legal question at issue,” not whether decision has the force of law.
Banhart.
What if a statute says people can rely on an agency’s interpretive rules?
Then Congress meant them to have the force of law.
When does an agency’s informal interpretation of its regulation not get deference?
When the regulation merely parrots the words in the statute.
