Administrative Law - Siegel - Spring 2007_4

8/20/2019 Administrative Law - Siegel - Spring 2007_4

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Administrative Law OutlineSiegel, Spring 2007

a. Introduction and Overview

A. Background

Art. I, §1: All legislative powers shall e vested in !ongress, "onsisting o# Senate and $ouse

Art II: All e%e"utive power shall e vested in &resident

Art III: All 'udi"iar( power shall e vested in one Supreme !ourt, and an( in#erior "ourts as !ongressshall deem ne"essar(

B. What are administrative agencies?

Morrison v. Olson

• )a"ts: $o* wanted in#ormation #rom +&A &res advised to e%er"ise e%e"utive privilege to stop

the in#o #rom eing given. *e"ords eventuall( turned over, ut $o* wanted investigation intoattorne( who advised the privilege to e asserted -Asst. A Olson/, thought he had "ommitted per'ur(. Independent "ounsel orrison appointed ( a spe"ial "ourt -e%er"ises an e%e"utive power: investigating people./ A serves at the pleasure o# the &resident, ut I! "an onl( e #ired#or good "ause and onl( ( the A.

o +thi"s in overnment A"t: applies to government o##i"ials

ust ring "ause to A, who has 0 da(s to investigate, i# it seems liel(

something3s wrong, he appoints I!, who has #ull power to investigate and prose"ute within a narrow 45

• 6his is normall( done through the 5O4 -someone dire"tl( answerale to

the A, and there#ore the &resident/o

alan"e o# powers "on"erno oes up to S. !t., whi"h holds this was not a violation o# the separation o# powers

• !ourt: !ongress has not taen #or themselves power #rom the president 8 rather, it has given it to

someone elseo 6he real test: Do the removal restrictions impede the President’s abilit to e!ecute?

+arlier "ase: $umphre(3s +%e"utor -!ongress "an prote"t an o##i"ial #rom the

&res3s removal authorit(, provided the o##i"ial is not purel( e%e"utive 8 must e9uasilegislative or 9uasi'udi"ial/

)ootnote 2;: too hard to tell, previous "ases "ouldn3t de#ine


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What do administrative agencies do?

@otes:

• ostl(, the( a"t to #ul#ill their #un"tion

o +%: 6ransportation Se"urit( Administration

In "harge o# se"urit( at airports, et".

5oesn3t seem to e mostl( rulemaing or ad'udi"ation seems more lie

en#or"ement

• Bh( do we stud( rulemaing ad'udi"ation thenC

o A&A: de#initions

-D/ *ule

-E/ *ulemaing

-F/ Order

-7/ Ad'udi"ation

• An(thing that3s not rulemaing under the A&A is "onsidered ad'udi"ation -de#ined so roadl(

that it does "over most o# what agen"ies do/

#. $ulemaking

• A&A §EE1 de#ines a GruleG as Gan agen"( statementHdesigned to implement, interpret, or

pres"rie law or poli"(.=

• A&A §EE in"ludes noti"e and "omment re9uirements. Agen"ies must provide noti"e o# their

rulemaing, and allow a period o# puli" "omment on them.

• ene#its o# agen"( rules

o Implements statutor( dire"tives, gives "ontent to statutor( standards that are o#ten vague.

o Streamlines agen"( usiness.

US v. Storer Broadcasting Co.-?S 1EF/• Statute: )!! regulates road"ast li"enses #or 6> or radio. Shall grant the li"ense where the )!!

#inds that the li"ense would serve the puli" interest, "onvenien"e and ne"essit(. I# it "an3t #indthat this interest is satis#ied, )!! sends it a" to appli"ant, sa(ing wh( the( "ouldn3t #ind it wasin the puli"3s interest, and appli"ant gets the "han"e to respond.

o I# )!! still doesn3t #ind a reason, it #ormall( designates appli"ation #or a #ull hearing,

noti#(ing appli"ant

• )a"ts: Storer alread( owned the ma% numer o# stations, )!! "hanges rule to multiple ownership

rule -

poli"(, a hearing is not re9uired 'lie summar( 'udgment/

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• ()hall* hold a hearing means ou must hold a hearing but onl when it’s appropriate

@otes:

• Hypo: what if the FCC held a hearing every time, but whenever it came out that someone had 5

TV stations, they denied the application?o 6his would e within the statute3s limits, ut it would e a ig waste o# time

• Agen"ies in eneral:

o Agen"ies that promulgate rules have the authorit( to do so

o *ules allow ultimate goals o# the agen"( to e "arried out through the a"t

an( agen"ies operate under ver( road, vague mandates -what does


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• Hypo: Congress creates new !"V #federal, not local$, charges head to design procedures to test

for new licenses. %hat procedures to use?o Appli"ation, evaluate against rules, tae a driving test, et".

@ot reall( a 'udi"ial pro"ess -not presenting other eviden"e, et"/

6his isn3t a


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o What process is due?

+ssen"e o# A)5! is that (ou3re eligile K" (ou don3t have enough P #or #ood 8

this is important e"ause the


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o A&A provides #or 'udi"ial review in this "ir"umstan"e+ §56#: !L is disregarded i# agen"(

does something that (ou don3t lie or (ou are aggrieved, "an see 'udi"ial review Sets up a "he" on the delegation o# authorit( to these agen"ies

#$at are co%parative advantages o& agency vers's t$e co'rt(

• Agen"(: advantage o# e%pertise in the area o# regulation etter at

statutor( interpretation o# their own statute

• !ourt: e%pertise in the "onstitutionalit( o# the ena"tments etter at

statutor( interpretation in general li#etime tenure gives them ailit( to eimpartial and resist politi"al pressure

Administrative decisions are presumptivel reviewable

• !ourt: Looed at A&A, determined that there were some threshold 9uestions on"e 'udi"ial review

appropriate:o 7uestions to ask+

'"3 Whether agenc action is within legal scope o& its authorit

'#3 Whether agenc &ollowed necessar procedural re7uirements

• &ro"edural errors "he"ed

• 6(pi"all(, reviewing "ourt does not mae a re"ord, onl( taes the re"ord

• 2 possiilities: $ave agen"( mae #indings again -sumit a##idavit/, or

&ut o##i"ials on the stand -last resort/ '3 Whether action was (arbitrar or capricious* '85693

• I# the( #ail to mae #indings e%plaining wh( it did what it did, then the(

might go on the stand, though that is still t(pi"all( dis"harged

• 5e#erential standard

• !ourt: 6his isn3t so #ar o## that it "ould e "onsidered "apri"ious -lie

"lear error standard in "ivil litigation/o Standard o# review the "ourt then applies to the agen"( re"ordC

5e novo review o""urs onl( when:

• A"tion is ad'udi"ator( in nature and the agen"( #a"t#inding pro"edures

are inade9uate, or • Issues that were not e#ore the agen"( are raised in a pro"eeding to

en#or"e nonad'udi"ator( agen"( a"tion. @otes:

• On one hand, agen"( a"tion is presumptivel( reviewale, ?6 limited in 2 wa(s:

o &ro"edurall(, K" the reviewing "ourt does not mae a new re"ord. It 'ust taes the re"ord

made in the agen"( and reviews that re"ord.o Sustantivel( K" the "ourt reviews with de#eren"e. 6he "ourt will not re9uire what it

would have done it will onl( as i# a reasonale administrative o##i"er "ould have "ometo the agen"(3s "on"lusion

• %hat if there is a &uestion about the meaning of the applicable law?

o

6o the !ourt,


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b. What are Administrative Agencies?

@otes:

• %hy have agencies?

o !ongress not te"hni"al e%pert even i# the( used e%perts #or advi"e, still would not havethe time to e urdened with ena"ting all o# the rules that agen"ies deal with

o 6he @& !lause sa(s !ongress "an mae laws that are ne"essar( and proper to do its

'o, so, perhaps "reating agen"ies to e%e"ute details o# laws is ne"essar( and proper

A. ,ongress and Administrative Agencies

". :ondelegation

%he Polic

• %hy might it be wrong to have agencies?

o Stru"turalKpoliti"al argument: Agen"( de"ision maers are removed #rom voters, mu"h

less a""ountale than !ongresso 6e%tual argument: Arti"le I, §1 o# the !onstitution "learl( sa(s ALL legislative powers

shall e vested in a !ongress 8 not in agen"( administratorso 6he "ommon law o# Agen"(: In a "orp, sKh are the prin"ipals and the( delegate "ertain

duties to their agents 8 the oard o# dire"tors and !+O, ?6 powers delegated "annot eredelegated

o 4ohn Lo"e 8 said the power to legislate is @O6 the power to pi" legislators 8 the(

"annot redelegate that power to others

• %hy would Congress want to delegate?

o Bant to handle hot issues, not little details lie radio #re9uen"ies

o Bant to avoid responsiilit( and a""ountailit( delegate tough de"isions then lame the

ureau"ra"(o In"reases !ongress3 "apa"it( "an tae "redit #or good things an agen"( has done and

show their "onstituents all the( have wored ono Important to empower the e%e"utive wK su##i"ient #le%iilit( to get the 'o done

• Some #le%iilit( in e%e"utive dis"retion is inevitale an(wa( ever( detail o# the

most mundane things "annot e spe"i#ied in an a"t ( !ongresso !ongress ma( #eel it doesn3t have the e%pertise to mae "ertain de"isions, so it hires

people that understand medi"ine, human health, industr(, et".%he ;istor+

• '% (ampton v. ) 8 !.4. 6a#t said,


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• )a"ts: @I*A did not give the &resident an( "riteria on whi"h to ase his a"tion o# e%"luding #or

"ommer"e "ertain oil produ"ts.

• !ourt: stries down a"t. @I*A does not set up su##i"ient administrative pro"edures. Important

"ontrast to )ederal 6rade !ommission A"t, whi"h re9uired agen"( to estalish ver( "lear pro"edures.

o La"ed pro"edural sa#eguards su"h as noti"e, hearing, and #indings ased on eviden"e

wKrKt the adoption o# industr( "odes o# #air "ompetition.

@otes:

• Sin"e chechter , !ourt has not invalidated a single statute on the asis o# e%"essive delegationR

o 1DD: upheld !ongress3 delegation o# authorit( to "ontrol pri"es K" the !ourt deemed the

standards pres"ried ( the A"t, along wK the

• !ourt: ?pheld as against a nondelegation do"trine. Bh(C

o -1/ $istori"al pre"edent 4 1D2 legislation -wartime/

o -2/ Legislative $istor( 4 Same purpose as ehind the 1D2 legislation, whi"h was upheld

L.$: "ommittee reports, deates e#ore the law was adopted

o -/ @ature o# the prolem demands roader authorit( 4 'ust timing was le#t to &resident

!ongress might not e in session when a"tion is re9uired

o -D/ *elated to international trade -international lin/ 4 usuall( the &resident3s authorit(o -E/ Statute is limited in duration

o -F/ Impli"it dut( o# "onsisten"( the e%e"utive had to mae up rules

uiding prin"iple "an "ome #rom the e%e"utive on"e the authorit( is delegated

ight e "ontrar( to the goals o# nondelegation 8 even a#ter the duration o# his

power has e%pired, the guidan"e and pre"edent will "ontinueo -7/ 4udi"ial review is availale 4 Ind. !ases, A&A, o# rules themselves

o -;/ @o singling out spe"i#i" industries

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o -/ )loor on wages -"an3t set elow 170 wages or pri"es/

o -10/ Impli"it dut( o# #airness

• 6his has een held to e an intelligile prin"iple, and the "ourt #inds it impli"itl( here

@otes:

• #$ic$ o& t$ese are %ost related to goals o& nondelegation doctrine(

o )loor gives &resident a ver( dis"ernale limit -ut, no ma%imum set vast, unregulated

dis"retion in the other dire"tion/o @o singling out

o International linC &res has dut( to e%e"ute laws, ut ALSO has powers o# his own that

relate to the int3l sphere -'ust letting him e%er"ise powers he alread( has/ ight e a tenuous argument

o Limited duration &rovides time #or !ongressional review -!ongress a#ter F months has

to reauthoriJe his authorit(, so i# the( do, that3s approval o# his a"tions/ )iegel: &erhaps this is the most related o# all o# them

o Impli"it dut( o# #airnessC it o# a stret"h, ut still a "he" on the &resident

• 6his "ase shows 'ust how #ar "ourts will go to avoid striing something down under the

nondelegation do"trine

#$it%an v. )%erican Tr'c!ing )ssoc.

• Statute: +&A delegated authorit( under the !lean Air A"t to set


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!ongress eeping to mu"h "ontrol #or itsel#.

,-S v. C$ad$a -?S 1;/

• Statute: §2DD-"/ o# the A"t gave A authorit( to suspend deportations made ( I@S, with a one

house vetoo A was allowed to suspend where the & "ould show:

Lived here #or 7 (ears

Bas o# good moral "hara"ter

Bould have e%treme hardship

• )a"ts: & was to e deported -he oversta(ed his visa/, A suspended, $ouse vetoes the suspension,

& was to e deported, appealed

• !ourt: Legislative onehouse veto was un"onstitutional violates the i"ameralism "lause and

&resentment !lauseo o t$ese cla'ses apply(

&resentment: legislation has to e presented to the &res -applies to ills passed (

oth $ouse and Senate/ i"ameralism: law "an3t e passed without oth houses 'ointl( maing the

de"ision -doesn3t seem to appl( here either/o !ourt3s s(llogism:

Anthing that alters the legal rights1 duties1 and relations o& person outside

the legislative branch = an e!ercise o& legislative power

Anthing that alters legal rights1 duties1 etc. re7uires B and P

• 6his alters the legal rights and duties o# !hadha -status as a legal alien

was "hanged/ so should have gone through i"ameralism and presentment

• 4usti"e &owell: !ase "ould e de"ided on narrow ground, shouldn3t have outlawed legislative

vetoes all together o

Agen"( here was doing ad'udi"ation was esp. "on"erned aout this 8 one thing #orlegislative veto over rulemaing #un"tion, ut ver( ad #or it to e involved inad'udi"ator( #un"tion

• 4usti"e Bhite3s dissent: >eto is central means b which ,ongress ensures the accountabilit

o& e!ecutive and independent agencies.

o $oson3s "hoi"e: !ongress either has to delegate a lot o# power to the agen"ies, trusting

them with their own regulation, or k eep the power #or themselves and have to deal withall the issues that arise on their own, whi"h !ongress doesn3t have time to do

o >eto histori"all( has not een !ongress3


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o 5egree to whi"h i"ameralism "lauses "an limit this 8 argument

o !ongress alread( passed this law, president agreed to it 8 that3s wh(

o ot it #rom the same pla"e that A gets his power to suspend

• )tatus 0uo Argument+ A3s suspension "hanges !hadha3s status to e!ecutes laws1 but is reall a member o& the legislative branch, and memer o# the

legislative ran"h "an3t per#orm an e%e"utive #un"tion

@otes:• (ow to reconcile with ChadhaC $ere, !ongress gives themselves another wa( o# removing !

o !onstitutionall(, should onl( e ale to remove e%e"utive o##i"ials ( impea"hment

o !ourt thins Impea"hment !lause has a negative impli"ation the onl wa( to remove an

e%e"utive o##i"ial

Impea"hment pro"ess: Simple ma'orit( o# $ouse essentiall( indi"ts, then 2K o#

Senate to impea"h. *e9uires #or high "rimes or misdemeanors.

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$ere, to remove ! re9uires 2K o# $ouse and Senate. +ven more rigorous than

the impea"hment pro"ess, ut "an e removed #or -asi"all(/ an( reason.

• Procedurall1 higher standard1 but substantivel1 more la! standard

• (ow does court now he/s a member of the legislative branch?

o Loo at removal provisions: vague language, too mu"h room #or !ongress to remove

-

essen"e o# e%e"uting the law 6his is not simple math on the !3s part, there is room #or dis"retion #or him

o ?nder !hadha test, this seems legislative: !3s a"tions "hange the legal rights and duties

o# people outside the legislative ran"h ut "ourt holds that it is e%e"utive 8 not entirel( "lear wh( . See Steven3s opinion:

• !onvin"ed ! is an agent o# !ongress: maes poli"( that inds a nation

*emoval provision points to legislature Statutoril(, histori"all(, he3s

legislativeo &owers e%er"ised ( ! have a


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P'blic Citien v. +o'ng -5!, 1;7/

• )a"ts: Sa""harin an 8 )5A was aout to tae it o## the maret #or eing a "ar"inogen, so the(

tried to do a media strateg( -did have health ene#its/o )5A points to la studies amount o# sa""harin would e e9ual to drining ;00 "ans o#

diet soda a da( 8 was su'e"ted to ridi"uleo )5A tries to use de minimis rule to "olor additives to sa( that !ongress "ouldn3t have

meant that the( should an something with su"h small side e##e"ts

• Statute: !olor Additive Amendments, general statutor( standard: )5A "an approve where the

additive is


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)nder fle0ible standard, could the meaning of the !elaney Clause change over time?

• eaning o#


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• #$y isn0t t$ere in&or%al ad1'dication(

o )cope o& the things that agencies do under (in&ormal ad/udication* is incredibl

broad and varied

+ver(thing #rom de"iding to "lose road due to snow to pro"essing I*S #orms

o 4udi"ial *eview, !h. 7

856#: right o# review

856: $ow to get 'udi"ial review -)orm is spe"ial statutor( review pro"eeding

spe"i#ied ( the agen"(3s organi" statute. Sometimes it sa(s nothing, in whi"h"ase (ou use an( appli"ale #orm o# legal a"tion -"ivil 8 sue the agen"(//

856: whi"h a"tions are reviewale

8569: S"ope o# review -2/: "ourt should set aside agen"( a"tions that are

aritrar(K "apri"ious or un"onstitutional, or illegalOther statutes:

• )ederal *egister A"t

• )OIA

• overnment in the Sunshine A"t -"ollegial agen"ies re9uired to hold meetings in puli"/

• )A!A 8 )ederal Advisor( !ommittee A"t

• &riva"( A"t -dis"losure/

o ust e aware o# all these other statutes, in addition to the organi" statute

&ro"edural statutes with Sustantive oals:

• :


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o 5istinguishes etween ma'or and minor rules. I# ma'or -WP1 million/ must sumit to

!ongress, whi"h "an disapprove the rule ( 'oint resolution

o ives !ongress a "he" on agen"( "ontrol and rulemaing

o ,s t$is stat'te constit'tional(

Seems lie !hadha, ut this is "onstitutional e"ause it3s a legislative, not

ad'udi"ator( #un"tion -4usti"e &owell said this in !hadha, ut the ma'orit(seemed to thin all legislative vetoes are un"onstitutional/

Satis#ies &:

• )a"ts: &roposal #or eorgetown ridge. Statute mandated that the ridge e uilt -wasn3t tr(ing

to get the agen"( to use its dis"retion in a "ertain wa(, ut rather get it to do something it wasalread( re9uired to do/. !ongress:


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• On remand, Se"retar( "ould delegate to another person in the agen"( -re"use sel# and get

someone senior who wasn3t involved in previous de"ision/

• er rare #or an( agen"( pro"eeding to get overturned #or undue !ongressional in#luen"e

B. %he President and Administrative Agencies

Originall(, &res was supposed to e a general politi"al leader

• Start with Art. II:

Particular Powers Others

!ommander in !hie# Appoint O##i"e


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@otes:

• Speaer o# the $ouse not appointed this wa( K" o# App3s !lause: &resident appoints o##i"ers

whose appointment is not otherwise provided #or -$ouse and Senate "an appoint its own o##i"ers/

• I# there wasn3t an Appt3s "lause 8 still Separation o# powers @onaggrandiJement prin"iple:

o owsher v. S(nar: !ongress "an3t tae powers #rom e%e"utive and give to o##i"ers

• !ongress tried to #i% this ( providing #or $ouse and Senate appointment o# nonvoting memers

o @o appointment "lause prolem

o 5! !ourt still stru" down e"ause this is still undue !ongressional in#luen"e in the

administrative pro"ess -violation o# the nonaggrandiJement prin"iple/

". Appointment and $emoval o& O&&icers

%hich power is more important 1 appointing or removing?

• *emoval seems more important... it3s alwa(s the #inal word

• Strange how there3s an appointment "lause, ut not removal -aside #rom impea"hment, whi"h is

#airl( un"ommon/

H'%p$rey0s 2xec'tor v. US -?S 1E/

• )a"ts: $oover appoints $umphre( as )ederal 6rade !ommissioner later ass him to resign,

re#uses, so )5* #ires him -doesn3t give a reason/.

• )6! statute: "an e removed #or


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• Loo to given powers, and the nature o# those powers

• ust loo at the "hara"ter o# the o##i"e

!ertain amount o# regulation inherent even in 'udi"ial pro"ess o# en#or"ement

#court seems to be disregarding this$ @otes:

•

Alwa(s di##i"ult to distinguish etween the powers• 6hough things were di##erent at the time this "ase was de"ided. !ongress didn3t have sta##, so the

)6! would per#orm legislative #un"tions #or !ongress

Morrison v. Olson -?S 1;;/

• )a"ts: see aove.

• !ourt: ets rid o# 9uasi'udi"ial and 9uasilegislative test . %est is whether the statute impedes

the President’s abilit to per&orm his &unctions

o Also Appointments !lause: I! appointed ( spe"ial division -"ourt/ group o# 'udges on

5! !ir"uit !ourt 6hough "onstitution gives this power to &res, "ourt "an do it e"ause !lause

sa(s,


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+%: !linton didn3t lie *eno, ut didn3t remove her e"ause i# he did, he3d have

to appoint someone new, and to do that he3d have to get it through the Senate,who was *epuli"an at the time

o Siegel: thins &ier"e puts too mu"h emphasis on this, ut it is another wa( o# looing at

#. Polic ,ontrol

a. Presidential Authorit1 generall

2f president orders an agency official to do something, is it the law that they have to do it?

• 5epends on the statute: )or some agen"( o##i"ials, their statute sa(s it is their legal dut( to tae

orders #rom the &res -militar( agen"ies/o @ot true #or others -Se". O# 6reasur(, &ost O##i"e, Interior 5epartment, et" 8 most agen"(

o##i"ials/

+o'ngsto/n S$eet 3 T'be Co. v. Sa/yer 45T$e Steel Sei're Case67 -?S 1E2/

• )a"ts: 6ruman ordered Se" o# !ommer"e to seiJe steel mills in the #a"e o# a worers strie to

ensure "ontinued produ"tion during the Norean Bar. @o statute that gives &res this power.

• !ourt:

o la" and 5ouglas: &res "ould onl( do this with e%pli"it or #airl( implied authoriJation

( statute, and there was no authoriJation ( statute or "onstitutiono !lar and urton: &res "ould have authorit( to a"t in puli"3s interest in emergen"ies,

ut !ongress had "ontemplated this and had ena"ted several statutes, none o# whi"h gave&res this authorit(

!ongress had there#ore preempted the #ield, leaving the &res no authorit( to a"t

o 2ackson: &resident "an a"t:

Bith e!press or implied authorit -power is greatest/

• ut power not asolute 8 see S"he"hter &oultr( -nondelegation do"trine/

iddle ground1 inherent authorit -"an onl( rel( on his individual powers/• 6wilight Jone where !ongress and &resident "ould oth have powers

In contradiction o& statute -power is lowest/

o &resident had a"ted against !ongress3 will had e%pli"itl( re'e"ted this sort o# power

%ests &or >rantingJ$emoving Power and )eparation o& Powers:President ,ongress ,ourts

)tatutor Authorit S"he"hter &oultr( !hadha, owsher,u"le(

Inherent Authorit

)tatutor Prohibition orrison v. Olson

o 4a"son: this "ase is in the rd o% -prohiition/ e"ause the( re'e"ted this a"tion

6hough #a"t that the( did not do V doesn3t mean that the( voted #or

• Inherent authorit( o% is mu"h harder

o )ran#urter: )ailure o# !ongress to grant e%pli"it authorit( "ould X dire"t an on this a"t

6here also "ould e emergen"( situations where he "ould a"t without approval

o 5issent: !4 >inson, *eed, inton: 6here was no e%press prohiition

Initiative was reasonale #or se"uring !ongress3 o'e"tives

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$istor( o# prior presidential seiJures supported argument that he had the power

,n re -eagle -?S 1;0/

• )a"ts: &resident had @eagle -?S arshall/ prote"t 4usti"e )ield. @eagle shot someone he thought

was atta"ing )ield argued that he "ouldn3t e prose"uted #or something that he was legaloligated to do. 6here was no statute authoriJing this, ?6

• !ourt: )ound that &resident had inherent authorit( to have a ?S arshall prote"t the 4usti"e

(ow is this different from taing private property in 3oungstown? 4ot clear any distinction holds up

with:

a%es 3 Moore v. 8egan -?S 1;1/

• )a"ts: 5uring Iranian hostage "risis, !arter negotiated with Iran, with stipulation that all "laims

etween 2 "ountries would e sent to Iran?S "laims triunal

• !ourt: 6here was a longstanding e%pe"tation that &resident would handle #oreign relations

o 5rew on histori"al pra"ti"e

o 6hought these people were liel( etter o## in the triunal an(wa(

o It3s ver( "hallenging to determine what the inherent powers o# the &resident are

@otes:

• &resident "an3t order a #ederal o##i"ial to do something unlaw#ul

• &resident "an3t order a #ederal o##i"ial not to do a legal oligation

o $ave to loo at the histor(, et". to determine i# it3s law#ul or not

• Hypo: 2f e0ec official serves at the pleasure of the *resident, and has a statutory duty to mae a

certain decision, and there are different decisions he could mae, all of which would be upheld by

a court as law. 2f *resident calls him up and says, 2 want you to choose 6 1 can he do this?o !ertainl( "ould mae the "all &resident "an give orders to #ederal o##i"ials, in their

dis"retionar( duties, ut not their ministerial duties, e"ause the( eventuall( report to himo I# the person


22/64

• Hypo: 2f FCC served at pleasure, gives someone a license, and someone else who wanted the

license brings case for 7udicial review. FCC says they gave the license to applicant instead of - because the *resident told us to.6 2s this is a sufficient answer?

o Still need to investigate whether it3s independentl( law#ul ( itsel# it is not su##i"ient,

e"ause he "an onl( tell them to do things that are law#ul

• See Sierra !lu v. !ostle, page 2FD notes "ase: &resident3s order neither adds to nor detra"ts #rom

the law#ulnesso +ven i# "hoosing either one would have een a law#ul de"ision, and the( onl( "hose A

e"ause o# &resident3s "ommand, it3s #ine

• Bould this ever not e oC

o Bhere agen"( per#orming a 'udi"ialt(pe #un"tion -due pro"esst(pe prolem with

&resident eing involved/

b.

• &ro"edural:o &aperwor re9uirements 8 "ostKene#it anal(sis o# an( proposed new rule

o !onsult with O, "onsiders the *egulator( Impa"t Anal(sis, must approve the proposal

+##e"tivel(, gave him the power to lo" an( rule that an( agen"( was

"onsideringo Bh(C aes agen"ies thin aout what the(3re going to do

&res is lie !+O, "an3t e##e"tivel( "ontrol ever(thing ever(one under him is

doing @eeds one gu( to e his ??

• &art A:

o $as to e "ompelling reason to go #orward with a"tion

o 5i##erent role #or the "entral person: onl( "an review


23/64

• Nept in pla"e ( the ush administration

B's$0s Order :@A;;=

• Applies to


24/64

o 6his "ase 'ust seemed too eas( histori"all(, state law "ontra"t "laim has alwa(s een

part o# the 'udi"ial power

• rennan: +%"eptions to where Art. III 'udges e%er"ise the power:

o 6erritorial !ourts - m. 2ns. Co. v. Canter , 5! !ourts *almore v. ) M/

!ongress "an regulate here K" no state government in the territories and 5!

o !ourtsartial - *ynes v. (oover /

Alwa(s een e%traordinar( "ontrol over militar( via Art. I -mae rules regs/

• +%igent "ir"umstan"es usuall( the "ase in the militar( "onte%t

• Bh( not 'ust a spe"ialiJed Art. III "ourtC

o Is this su"h a di##erent su'e"t matter #rom anrupt"(C

o


25/64

o ?6, this is not how it wors: o# opinion:

o Pipeline is overruled+ All "ategori"al oundaries o# @orthern &ipeline now e"ome

#a"tors

• $ow does it appl( in this "aseCo '"3 6his is a state "ontra"t "laim, not a "ongressionall( given right

6his #a"tor "uts the other wa(, ut it3s 'ust one #a"tor among man(

Thomas v. )nion Carbide: -we didn3t read this/: matter etween 2 private parties,

ut matter was


26/64

Standard o# review less de#erential -de novo gives more power to Art. III "ourts/

o '3 !)6! is supposed to e immune #rom politi"al pressures. aes sense #or them to

hear this "ounter"laim e"ause there3s reall( 'ust one "laim here. ut, 6o de"ide one "laim is to de"ide the other. Bhen !)6! is presented with

the main "laim, it should simultaneousl( de"ide the "ounter "laim @otes:

• 6hese are


27/64

o '#3 What process is due? :


28/64

• )a"ts: I# (ou emplo( tru" drivers, (ou "an3t #ire them #or re#using to drive an unsa#e tru", or #or

reporting an unsa#e tru". Agen"( "an order reinstatement o# driver i# #ired #or illegitimatereason. 6his was all aout timing 8 opportunit( #or all the pro"edure (ou "ould want, ut thatdidn3t happen until a#ter the preliminar( order.

• !ourt: ust tell "ompan( what eviden"e the( have, must have opportunit( to respond ut oral

hearing with "ross not ne"essar( e#ore reinstatemento 6est:

Private interests: !ompan(3s interest in not having to emplo( someone who

the( don3t want to

• 6heir propert( is eing taen -#or"ing them to pa( out P to emplo(ee/

• &rivate interest o# emplo(ee 8 interest in avoiding wrong#ul dis"harge

o Although mainl( "ompan(3s interest is eing "onsidered, "ourt

sa(s (ou "an "onsider other private interests eing impli"ated Public interests: &rote"ting sa#et( o# the roads -not alwa(s "ost/

$isk o& error: &ro"edure was #or Laor 5ept. to engage in e0 parte investigation

-"ould "laim illegal #iring without telling "ompan( who the( #ired illegall(/

• *+ wanted to have eviden"e presented to them reat ris o# error when

the "ompan( doesn3t even get the "han"e to tell their side o# the stor(o *+ needs "han"e to respond, ut no need #or "rosse%amination

@otes:

• !riti"isms:

o alan"ing all these "osts is hard to measure -"omparing apples to oranges/

o ight have some sense that it3s wrong to mae "osts part o# what 5& re9uires

6hin there should e a wa( o# measuring independent o# "ost

o I# we3re weighing the puli" interest #a"tor, might suggest that it "ould 'usti#( an(thing

o 6oo mush(

• Bhat3s the alternativeC

o 6raditional pro"ess -S"alia3s view/

Advantage: 5oesn3t re9uire us to "onsider "osts 5isadvantage: 5oesn3t allow #or evolution o# rights

• I.e., there didn3t used to e disailit( ene#its -not alwa(s traditional

methods #or things e"ause those things didn3t used to e%ist/

• Sometimes the tradition is ad. In old da(s, ever(one 'ust wanted to e

le#t alone ( the government. 6oda(, we3re more "onne"ted.o @atural *ights


29/64

Sa(ing we3re ignoring "osts is reall( sa(ing that "osts are given too mu"h weight

• Lots o# "riti"ism o# the +ldrige test, ut there3s reall( not an(thing etter

b. When Is Process Due?

*ondoner v. City and Co'nty o& enver -?S 10;/

• )a"ts: !O laws provided that oard o# 5enver "ould order paving o# street, and "ould assess the

"osts onto the people that lived on the street. &etitioner: there was no petition #or paving, andthere was no hearing.

• !ourt: *uled #or owner. !an do paving without a hearing, ut #or a"tual assessment, there must

e a hearing

BiMetallic ,nvest%ent Co. v. State Board o& 2'aliation -?S 11E/

• )a"ts: eneral in"rease in propert( value #or all properties in 5enver. ?nder Londoner, &s

"laimed that the( deserved a hearing

• !ourt: Bhere all assessments are in"reased ( the same per"entage, and it a##e"ts the population

generall(, there is no hearing re9uired

@otes:

• 5istin"tion etween these "ases: ased on numer o# people involved

o Bhere a rule applies to more than a #ew people, it would e impra"ti"ale #or there to e

a hearing #or ever(one Legislative pro"ess "an also "hange this -more politi"al power when more people

are involved with a mass assessment/o Bhen (our mass rights are involved, (ou have a politi"al parti"ipation right

o Bhen rights in#ringed on are en masse, then (ou have the right to a hearing

&aving the street a##e"ts a lot o# people whereas #iguring out ea"h persons3

assessment is individualiJed

• 6hese 2 "ases "onstitutionaliJe the "on"epts and "ategories o# ad'udi"ation and rulemaing

• )irst, as: Is something happening that is individualiJedC

o I# (es, right to individualiJed

When is DP due?

• Bhen li#e, liert(, or propert( is eing taen

o 6wo understandings:

-1/ di##erent "ategories that have histori"all( een de#ined

-2/ eneral phrase en"ompassing all things important to us

• I.e., taing awa( right o# #oreign spouse to immigrate to the ?S

• 6his is :O% the de&inition o# the 5& "lause

• So what is li#e, liert( or propert(C See:

Board o& 8egents o& State Colleges v. 8ot$ -?S 172/

• )a"ts: &ro# hired #or 1 (ear N at ?niv. o# BI, #ired #or no reason. 6hought he was #ired #or

"riti"iJing administrators, thought this was retaliation #or his 1st A #reedomso In the 1E0s, losing one3s 'o wasn3t a


30/64

• !ourt: $ight4privilege distinction is abolished. *oth is not entitled to pro"ess.

o @ow, loo to the nature o& the interest at stake -not the weight, no alan"ing/:

!ompared to olderg: entitled to pretermination hearing, *oth no lost

ene#its, *oth lost 'o @o den(ing that *oth has important and signi#i"ant"on"ern it3s 'ust not the right time

o *oth3s interest in his 'o was not


31/64

o I# state gives (ou sustantive right -not to e #ired without reason/ triggers pro"edural

rights under 5&

o !riti"ism: @ow 2 almost identi"al emplo(ees are #ired, one without hearing and one with,

it seems that nonunioniJed emplo(ee is more in need o# a hearing


32/64

o -Tuestion 2/: Bhat 5& is dueC +ldridge alan"ing 6est:

&rivate interest in emplo(ment X >er( important

&uli" interest in e%peditious removal o# unsatis#a"tor( emplo(ees, avoidan"e o#

administrative urdens X 5oes not outweigh these interests

• &re#erale to eep 9uali#ied emplo(ee than train new one, "an suspend

with pa(, et" *is o# erroneous termination X 5ismissals #or "ause o#ten involve #a"tual

disputes 8 importantRo ;earing is necessar+ @eed not e elaorate, not as e%tensive as olderg in puli"

emplo(ment "ases

• *ehn9uist3s dissent: L3s pro"ess should e enough

o &luralit( o# 'usti"es in rnett thought it waso Ignores dut( under +oth to loo to state law #or propert( interests

o alan"ing depends on !ourt3s su'e"tive viewpoints o# the underl(ing interests

La" o# prin"ipled standards

@otes:

• Hypo: %hat if state said, 4o tenure, but if you/re fired, you can appeal, and it/ll only be upheld

if gov/t can show that you were fired for cause6?o ?pshot: (ou asi"all( have tenure

o 5own: i# set up in this purel( pro"edural wa(, (ou might not have een granted a right

@ever een used, ut might e a game the state "ould tr(

• In oth +oth and inderman, & said real reason #or #iring was #or e%er"ise o# 1st A #reedoms

o Still "an3t e #ired #or prohiited reasono I# *oth was #ired #or 1st amendment #reedoms, what "ould #ile a lawsuit

+ven with "ivil suit availale, it3s mu"h more #avorale to the emplo(ee to have a

hearing e#ore termination -so the( "ould eep their 'o/

• L illustrates the &le!ible nature o& DP: @ot alwa(s entitled to traditional de#inition o# a


33/64

• )a"ts: **s want rates estalished ( I!! set aside. I!!, pursuant to I!A, initiated rulemaing

pro"edure here "hallenged:o &ro"edure:

I!! held "on#eren"e #or **s to voi"e "on"erns, **s le#t with impression that

there would e hearings in the #uture I!! tentativel( promulgated the rule, gave **s F0 da(s to repl( in written #orm

• An(one re9uesting oral hearing had to set #orth reasons and eviden"e

o

and on the asis o# su"h "onsideration...= U hearing should trigger A&A 5on3t have to have an oral trial to tae these things into a""ount 8goes to the

sustan"e o# the law ?6 these are not


34/64

o !ase seems to adopt &ro#. 5avis3 theor( on ad'udi"ative v. legislative #a"ts -see elow/

• Ho/ to disting'is$ ad1'dicatory &ro% legislative &'nctions(

o @umers a##e"ted -not dispositive/

o &rospe"tivit(

o )a"tual ases -&ro#essor 5avis/

Legislative #a"ts: more issues o# law 8 trial is not ne"essar( #or this Ad'udi"ator( #a"ts: who, what, where, when, wh(

• Oral testimon( is ne"essar( e"ause the parties are more nowledgeale,

the(3re the e%perts aout the issues o# "on"ern

Cali&ano v. +a%asa!i -?S 17/

• )a"ts: SS A"t re"oups overpa(ments o# disailit( ene#its #rom #uture pa(ment -20D-a//, e%"ept

where Se" #inds -20D-// *e"ipient is without #ault, and ad'ustments would either: 5e#eat purpose o# the A"t -deprive person o# in"ome re9uired to live/, or

e against e9uit( and good "ons"ien"e -re"ipient would relin9uish valuale right

or worsen his position/o Se"retar(: aes de"ision, noti#ies re"ipient, who "an -1/ See re"onsideration or -2/ As

Se"retar( to #orgive det. I) either is #iled, re"oupment is de#erred oes to regional o##i"e, i# the( de"ide against re"ipient, re"oupment egins

I# re"ipient "ontinues to o'e"t, gets oral hearing -de novo/, "an get a" pa( i#

de"ision in his #avor o 5!: hearing e#ore re"oupment re9uired

o !ourt o# Appeals: #ound this to e un"onstitutional

• !ourt: Be&ore getting to the constitution1 should check &irst i& the statute re7uires it

o @either §20D-a/ o# statute nor !onstitution re9uires a prere"oupment oral hearing

*e9uests #or re"onsideration are straight#orward, written review is ade9uate

o §20D-/ does re9uire an oral hearing -doesn3t sa( an(thing e%pli"itl(/

Se"retar( must assess


35/64

o & had gone to 2 do"tors who didn3t #ind an(thing wrong with him

5r. orales -his do"tor/ #ound he had a sprained a" testi&ied

5r. Langston #ound there was nothing wrong -didn3t testi#(/

5r. aile( #ound he wasn3t si" -didn3t testi#(/

5r. atson #ound that there wasn3t a prolem -didn3t testi#(/

5r. Lampert


36/64

. Ad/udication and Bureaucrac

@otes: Administrative Ad'udi"ation:

• %ho can preside?

o Agen"( itsel# -head o# the agen"(/ @ot t(pi"al

o Some agen"( de"ision maer -Administrative Law 4udge/

6enure to a "ertain degree, somewhat higher on hierar"h(

o Administrative 4udge Bhoever agen"( de"ides to appoint to hear the "ase

@o tenure prote"tion, et".

• %hat do they do?

o -1/ @o de"ision made at all, onl( gathers #a"ts rare

o -2/ Issue initial de"ision -inding unless appealed, t(pi"all( su'e"t to internal agen"(

appeal/o -/ Issue re"ommendation

• (ow do they do it?

o 6(pi"all(, agen"( is prose"utor and de"ides the 9uestion -rings "ase against someone

who has violated organi" statute/ @ot separation o# powers issue K" AL4 is answerale onl( to head o# agen"(

-"ertain degree o# prote"tion, somewhat independent/ I# the initial de"ision maer is an A4:

• *ule against e% parte "ommuni"ations

• &eople hearing the "ase "annot also have wored on investigating and

prose"uting

• !iscovery:

o @o parti"ular provision in A&A on dis"over(, so )OIA used ( "laimants to get in#o on

the agen"ieso An(one permitted to as an( gov3t agen"( #or an( do"ument in its re"ords, without

having to o##er a reasono Series o# e%"eptions: I# it3s something that (ou "ouldn3t get through "ivil dis"over(, (ou

"an3t get it through )OIA either

• -urden of proof: &roponent o# the rule or order has the urden

o Seems to usuall( e the "laimant

o 5OL:


37/64

o Tualit( Assuran"e &rogram: E0Z reversal rate was an


38/64

*ight in statute, should e a hearing de"ision should "ome #K this eviden"e

o eneraliJed in9uir(: are there 'os out there whi"h #it a "ertain pattern

o IndividualiJed in9uir(: individual3s histor( to determine disailit( -ad'udi"ative #a"ts/

• !ourt: @o prolem #or Se"retar( to e%er"ise "ontrol over AL4 this wa(

o uidelines, ut doesn3t inter#ere with independen"e

o

5oesn3t have to e


39/64

5rug "o ased #or hearing, ut #irst was re9uired to show what eviden"e the(

would o##er. )AA "onsidered the eviden"e, de"ided not enough to get a trial !ourt 8 this maes 'ust as mu"h sense as S4 in the "ivil litigation "onte%t

• +##e"ts on hearings:

o Limit hearings

o !ut out hearings

o @ormall( entitled to hearing, ut ( rule "an limit eviden"e

$ulemaking

9. Authorit to Hake $ules

-ational Petrole'% 8e&iners )ss0n v. FTC -5! 17/

• )a"ts: )6! passed rule that uni#orml( held it was an un#air method o# "ompetition to not post the

o"tanelevel ratings on gasoline -this ept it within their 45, de#ining what un#air methods o#"ompetition are./ &rior to 170, )6! used ad'udi"ation to resolve disputes.

o O'e"tion: )6! doesn3t have the authorit( to mae sustantive rules -onl( pro"edural/:

$istor( 8 )5A elieved it onl( had power to pass pro"edural rules. §E-/ "learl( tells agen"( how to "arr( out mission #o"uses on ad'udi"ator(

powers, pro"edural guidelines. @o mention o# rulemaing authorit( Statute was ena"ted in 11D, when agen"ies a"ted through individualiJed

ad'udi"ations. !ongress intended agen"( to a"t onl( in an ad'udi"ator( "apa"it(. !ongress passed a"ts granting *ing power in ver( spe"i#i" areas. @egative

impli"ation that the agen"ies did not have general rulemaing authorit(.

• !ourt: 6he )6! does have the authorit( to rule mae:

o 6e%tual argument: §F-g/ allows #or pro"edural and sustantive rulemaing e"ause it

#urthers the purpose o# the statutor( plan and §E. @othing in the te%t o# §F-g/ that limitsthe agen"(s rulemaing power to pro"edural rules.

o 5evelopment o# agen"( power -more e%peditious to let the agen"( mae rules/

o Agen"( didn3t thin it had power, ut "onstru"tion is a 'udi"ial #un"tion the(3re wrong

,ourt doesn’t have to de&er to their interpretation o& their own statute

o 11D issue: a(e !ongress was un"ertain aout agen"ies rulemaing authorities and

was hedging its ets.

o *ulemaing is good:

*ules are 'ust good e"ause the( improve e##i"ien"(.

*ules allow #or agen"( innovation and greater parti"ipation ( more involved

parties. IndividualiJed ad'udi"ation allows #or onl( pie"emeal parti"ipation

*ules ma( e #airer than "ase("ase ad'udi"ation.

eneral rules provide etter noti"e to "orporations than parti"ular ad'udi"ations.

*ules reward those who "ompl( and give "orps less in"entive to litigate disputes.

@otes:

• Seems to 'ust e the "ourt maing a poli"( determination

o !ourt3s understanding o# how admin law ought to wor has heav( in#luen"e on how it

a"tuall( wors -te%t is not ever(thing/o !ase shows 'ust how #ar "ourts will go to #ind rulemaing authorit(

• 6his "ase ass: Are we going to have one pro"eeding to de"ide whether not laeling is un#air, or

are we going have to mae this de"ision again and againC


40/64

o 6his loos lie Storer, 6e%a"o, et". 8 all these "ases again -generaliJed issue "an e

de"ided on"e/

• *ulemaing "omes #rom Statutor( authorit(

o )6! thought the( got this power #rom §F-g/:

mae rules and regulations #or the purposes o# "arr(ing out the provisions...=o *e#iners thought these were limited to pro"edure -how hearing would tae pla"e/

Statutor( arguments #or this:

• I) it were su"h a ig power, would !ongress reall( have listed it as the

7th power among ;CC -Bouldn3t it have "ome #irstC/

• §E-/: seems to spell out prett( "learl( what the "omm3n is meant to do

-


41/64

@otes:

• %hat about unfair surprise to directors?

o 6oo ad #or the dire"tors 8 this is a prolem with de"isional law in general

o +ver( "ase o# #irst impression has a retroa"tive e##e"t, ( a "ourt or admin agen"(

Some agen"ies have pro"edures #or asing #or an opinion letter e#orehand

•

Ad'udi"ation is another method o# adding more spe"i#i"it( to the general outlines o# the organi"statute

-*8B v. #y%anGordon -?S 1F, notes "ase/

• )a"ts: Laor law histor(:

o @L* A"t gives emplo(ees option to #orm union, hold a vote to see i# the( want to #orm a

union. ?nion wants to tal to emplo(ees, ut needs list o# them #rom the emplo(er, whohates unions. @L* sa(s the(3ll hold ele"tion i# 0Z o# emplo(ees sign union "ardssa(ing the(3d e interested in a union

+%"elsior ?nderwear -previous "ase/

• @L* #ound in this "ase that on"e 0Z signed union "ards, that also

triggers dut( #or emplo(er to provide union with names o# emplo(ees• It was de"ided then, though not applied to 0celsior , onl( prospe"tivel(

• It was a parti"ulariJed ad'udi"ation, ut invited ami"us rie#s, et"., ut

didn3t appl( it in this parti"ular "ase a weird pro"eedingo In B(man, the @*L wanted to appl( this to the emplo(er

• !ourt: @L* "an use this holding as a rule -e"ause o# !hener(/

o Principle developed in course o& ad/udication can be subse7uentl applied

-*8B v. Bell )erospace -?S 17D, notes "ase 8 &ro"edure ON, Sustan"e @O6/

• )a"ts: @L* departed #rom prior law regarding right o# "olle"tive argaining to

managersKsupervisor -whi"h said it doesn3t appl( to them/. In ad'udi"ation, #ound that some

emplo(ees who were thought to e managerial "ould unioniJe i# not against puli" interest• !ourt: !ongress intended something else 8 this is a wrong interpretation o# the @*LA

o ut @*L "ould "ome up with this in the "ourse o# ad'udi"ation 8 pro"edure is #ine

o -$inting, not holding:/ It3s possile that relian"e on previous oard de"isions "ould e so

sustantial that it would e pre"luded #rom re"onsidering rules during ad'udi"ation

@otes:

• )or man( (ears, agen"ies never used #ormal rulemaing -harder to undo/ 8 ever(thing was done

( ad'udi"ation

• Ho/ does precedent /or! $ere(

o &resumal(, opinions laid down in ad'udi"ator( pro"eedings have pre"edential #or"e

o Otherwise, the(3d have to reuse same prin"iples all over again to support ea"h new "ase

• ,an give previous decisions precedential e&&ect1 but onl such e&&ect as is appropriate

Morton v. 8'i -?S 17D 8 Sustan"e ON, &ro"edure @O6/

• )a"ts: &apagos Indians denied Indian general assistan"e ene#its ( IA solel( #or the reason that

the( didn3t live on a reservation. Sn(der A"t held that IA shall e%pend mone(s #or ene#it, "areo# Indians living throughout the ?S -IA "ould give ene#its to Indians living an(where./

o Se"retar( interpreted this to mean onl( those living on the reservation, and emodied it in

an


42/64

• !ourt: !ongress intended this to e%tend to Indians living


43/64

o 5i##erent in the agen"( "onte%t 8 people now that the( had etter eep the agen"( happ(

L. ormal $ulemaking

?nder the A&A, #ormal rulemaing pro"edures are governed ( 88EE91 EE5

• ost important se"tions:

o 8EE9'd3+ G6he proponent o# a rule or order has the urden o# proo#. An( oral or

do"umentar( eviden"e ma( e re"eived, ut the agen"( as a matter o# poli"( shall provide #or the e%"lusion o# irrelevant, immaterial, or undul( repetitious eviden"eH. A part( is entitled to present his "ase or de#ense ( oral or do"umentar( eviden"e, to sumitreuttal eviden"e, and to "ondu"t su"h "rosse%amination as ma( e re9uired #or a #ulland true dis"losure o# the #a"tsH.AMn agen"( ma(, when a part( will not e pre'udi"edthere(, adopt pro"edures #or the sumission o# all or part o# the eviden"e in written#orm.G

o 8EE9'e3+ G6he trans"ript o# testimon( and e%hiits, et". "onstitutes the e%"lusive re"ord

#or de"ision.o 8EE5'b3+ 6he agen"( has the power o# de novo review a#ter the initial de"ision -usuall(

made ( an administrative law 'udge/

In#ormal v. )ormal *ulemaing:

• #irt v. Baldor 2lectric Co. -1F/: Statute used #ormal


44/64

4udi"ial *eview: §70F: &ut enough in the re"ord so that a "ourt "ondu"ting

'udi"ial review "ould tell what had happened

• $e7uirement &or comment, §": *e9. that interested parties "an

parti"ipate, and "an3t parti"ipate without #ull in#ormation to respond-ain to suppressing the "omments/

It’s not reall in the APA it’s a /udiciall re7uired addition

o -2/ !lear error o# 'udgment to not respond to the "omments. %here does this come from?

§70FC: 4udi"ial review: whatever the agen"( does, "ourt "an set it aside i# it3s

aritrar( or "apri"ious. !ourt seems to thin not responding to "omments is A! A&A §EEC 5oesn3t seem to e. I# it had to e there, might #ind it in §EE-"/:

• Agen"( shall give interested persons a "han"e to parti"ipate... a#ter

"onsideration o# relevant matter presented, agen"( in"orporates the ruleso *aising a


45/64

o I& an valid &acts could reasonabl conceived1 it is presumed that those state o& &acts

are true '= $B test3

@otes:

• &s argued * shouldn3t appl( K" this wasn3t a statute, ut sin"e this is a delegation o# legislative

power, it does appl(

• 5i##erent #rom @ova S"otia "ase:

o 6here, rule was adopted ( a #ederal agen"( here, the rule was adopted ( a state agen"(

A&A doesn3t appl( to state agen"ies

• Bon3t "he" the a"tual re"ord, as long as it "ould e "on"eived that there are rational #a"ts in "ase

o urden on "hallenger to prove that the #a"ts are wrong

• ?nder this "ase, and "onstitution, state agen"ies aren3t oliged to gather #a"ts and in#o e#ore

promulgating a rule -lie !ongress/. ood idea, ut not ne"essar(.

Bhat a"tuall( happens:

Motor "e$icle v. State Far% -?S 1;/

• )a"ts: @$6SA passed


46/64

•

• @ova S"otia 8

"hanging its mind -


47/64

)ierra ,lub v. ,ostle 'D, "KL"3

• )a"ts: +&A set standard #or "oal emissions. !hallenged ( oth parties as eing either too la% or

too stri"t. +&A used asi" §EE rulemaing pro"edure i# it was made an( lower, it would e tooe%pensive and wanted to en"ourage "oal use on the other hand, the( thought i# it was an( higherit wouldn3t prote"t the environment.

o &etitioners: there was e% parte politi"al pressure a#ter the "omment period: -1/ A#ter "omments "losed, lea in the "ommunit( and +&A re"eived "omments

a#ter the "lose o# the period

• @o "han"e #or response

• @o "han"e to see the "omments

• 5e#eats purpose o# the "omment period

-2/ O'e"t to meetings that too pla"e with !ongressmen -politi"al pressure/

-/ O'e"ted to politi"al pressure -meetings with/ #rom Bhite $ouse

• !ourt:

o -1/ +% parte "omments: 5oesn3t "are 4ust wants re"ords o# "omments pla"ed in the

do"et. Bh(C

*ealities o# admin poli"( maing Ample opportunit( to respond to the ma'orit( o# the "omments

essage to pra"titioners: eep (our e(e on the do"et, right up to da( the rule is

issued Organi" statute -!lean Air A"t/ didn3t e%pli"itl( ar e% parte "omments -"an

alwa(s relieve agen"( o# rules that would otherwise appl(/

o -2/ +% parte !ongressional and Bhite $ouse "onta"t -politi"al pressure/: Loos to

legislative "hara"ter o# the agen"(3s "ommissioner

Agen"( pro"esses are o# 2 di##erent varieties: Tuasi'udi"ial and 9uasilegislative

• 5on3t lie e% parte "onta"ts in T4 "onte%t, ut not so ad in TL "onte%t

o 6his happens all the time

•Agen"( does oth things at the same time, ut when it does legislative#un"tion, it3s more appropriate that agen"( #ollow legislative model

>ermont anee "ase: 5on3t want to over'udi"ialiJe the rulemaing pro"ess

@otes:

• %hat degree of formaliation is re&uired?

o !an rel( on e% parte "onta"ts, ut must put it on the do"et

• %hat about meeting with *resident H his staff?

o @eed #or rie#ing the &resident

o Agen"( isn3t "onsidered independent, has alwa(s een an e%tension o# the e%e"utive

BKo other !ongressional re9uirements, #a"eto#a"e meeting with the &resident

does not generall( need to e do"eted &resident "an provide a roader poli"( #o"us

&resident3s statement neither adds to nor detra"ts #rom the agen"(3s authorit( to

do something

• Is this good or adC

o Agen"( is supposed to "onsider the #a"tors under the a"t 8 not e%traneous "ir"umstan"es -

o &s: !ongress shouldn3t e allowed to


48/64

)ss0n o& -ational )dvertisersE ,nc. v. FTC -5! 17/

• )a"ts: )!! thought aout issuing a rule re: "hildren3s advertising. !hairman had gone around in

interviews e%pressing his view against "hildren3s ads said to e pre'udged. Banted him to re"usehimsel#.

• !ourt: ?nless there3s "lear and "onvin"ing eviden"e that he3s so iased -verton *ar , de novo review is appropriate onl( when there are inade9uate #a"t

#inding pro"edures in an ad'udi"ator( pro"eeding or where 'udi"ial pro"eedings are rought to en#or"e "ertain administrative a"tions. @either applies here.

o 6he Garitrar( and "apri"iousG standard under A&A §70F is the appropriate standard #or

'udi"ial review. 6he #o"us is on the administrative re"ord alread( in e%isten"e

@otes:

D;


49/64

• *eminds us that: Agenc action is presumptivel reviewable1 but review is limited

o &ro"edurall(: reviewing "ourt doesn3t mae new re"ord, even where the re"ord is

inade9uate #or 'udi"ial review @ormal pro"edure: remand to agen"( #or "reation o# a etter re"ord

o Sustantivel(: "ourt t(pi"all( doesn3t review agen"( a"tion de novo 8 shows de#eren"e to

agen"( de"ision Ass whether de"ision was aritrar( or "apri"ious

. Tuestions o# )a"t

Universal Ca%era Corp. v. -*8B -?S 1E0/

• )a"ts: @L* determined that ?! "ommitted un#air laor pra"ti"e in retaliation #or emplo(ee

given testimon( in a ?S pro"eeding, ordered to rehire the emplo(ee. Ad'udi"ation was at issue:o $earing e%aminer -AL4/ had a hearing, #ound in #avor o# emplo(er. oard has appeal

authorit(, and overturns in #avor o# emplo(ee. +mplo(er appeals, goes to 'udi"ial review

• !ourt: !ase presented #a"tual issues di##erent standards o# review #or #indings o# #a"t and law

o ;ow to evaluate &indings o& &act? Cook to+

6he organi" statute -Bagner A"t/: I# supported (


50/64

• )a"ts: )* passes rule allowing ans to engage in "ertain a"tivities

• !ourt: A@, is essentiall the same as substantial evidence+ It is A! to adopt a rule when it3s

ased on #a"tual #indings and there isn3t sustantial eviden"e to adopt those #indingso Organi" statute "alled #or sustantial eviden"e standard !ongress liel( wouldn3t have

passed this i# the( thought S+ was the same as A! @otes:

• S"alia thins that this statute doesn3t do an(thing K" a departure #rom the A&A s"heme will onl(

e #ound when it is e%pressl( stated

o 5oesn3t mae sense to appl( one standard to the *3ing part and another to the

ad'udi"ation part

o 5oesn3t lie what !ongress is doing here wants !ongress leaving them alone, without


51/64

o !ourt shows de#eren"e on 9uestions o# law 8 something uni9ue to administrative law

@otes:

• #$y is t$is(

o +%pertise 6heor(: 5e#eren"e to #inder o# #a"t e"ause o# "omparative e%pertise. *ule

maers might have een involved in the pro"ess o# #a"t#inding. 6he agen"( deals withthe statute ever(da(

o ?ni#ormit( 6heor(: 5e novo review in admin law will tend to show disuni#ormit(

de#erential review will show uni#ormit(, e"ause all the de"isions will "ome out o# thesame agen"( interpreting its own organi" statute

6his doesn3t appl( to agen"( interpretation o# A&A, !onstitution, et".

6his is the reverse o# the "ourt s(stem, where de#erential review tends to produ"e

nonuni#orm resultso Delegation %heor+ Host o&&icial reason &rom the ). ,ourt as to wh we have the

,hevron decision. !ongress has delegated power to the agen"ies to #igure out what thestatute means.

Innovation o# Chevron: re"ogniJe that sometimes delegation is impli"it -( using

road, general terms/

•Lie )!!:


52/64

o Bhen !ongress hasn3t spoen "learl( where there are amiguities in a statute that the

agen"( administers -when the( interpret their organi" statutes/ @ot 9uestion aout !onstitution, A&A, et".

o Almost alwa(s applies, ut there are some e%"eptions:

*ememer: these are e!ceptions to the ruleM+

22OC v. )rabian )%erican Oil -?S 11/

• )a"ts: & "laims rights under 6itle >II were violated 8 was woring aroad. ++O! said 6itle >II

applies e%traterritoriall( i# there3s an( dout, there should e !hevron de#eren"e.

• !ourt: @o de#eren"e due: !ongress never gave ++O! rulemaing authorit(

o Basn3t even amiguit( here 8++O! 'ust didn3t have the authorit( to promulgate rules

• Where there has been delegation1 ,hevron applies because in de&erring to the agenc ou’re

actuall de&erring to ,ongressional intent

o @ote: unusual agen"( that doesn3t have *3ing authorit(

*ec$%ereE ,nc. v. -*8B -?S 12/

• )a"ts: ?nion was tr(ing to get to emplo(ees o# Le"hmere to show interest in #orming union. Ldenied them a""ess to the "ompan( groundsK propert(. Law sa(s that organiJation shall notinter#ere with emplo(ees3 right to organiJe .

o 4ean !ountr( "ase, 1;;: @L* #ound that there was a part alan"ing test

o $ere, appl( the alan"ing test and #ind that L is re9uired to allow people onto their

propert(. Sin"e the statute is amiguous, the( should get !hevron de#eren"e.

• !ourt: Loos to @L* v. a"o" Bil"o% -?S 1;;/: de"ided there that "ompanies don3t have

to allow nonemplo(ees onto propert(, e%"ept where plant is so remote -where worers live at the"ompan( propert(./ 6his issue was de"ided stare de"isis prevents agen"( #rom appl(ing a newrule -the alan"ing test./ ,ontrar interpretation will not get ,hevron de&erence.

@otes:

• B was de"ided e#ore !hevron

o !hevron onl( has A! standard 8 whole point was that it doesn3t matter what the best

"onstru"tion o# the statute is

• Le"hmere: !ourt holds that ( reversing the @L*3s interpretation o# the issue in B, the(

were #inding the "lear and unamiguous meaning o# the statute

o ut were the( reall(C 6his was pre!hevron, so it might e that the( a"tuall( were

determining the


53/64

+%pertise asis o# de#eren"e est supports this:

• I# agen"( eeps "hanging its mind, that undermines the e%pertise #a"tor

• I# statute has a true meaning, and (ou thin agen"( would e in the est

position to now what this true meaning is, then we might 9uestion theire%pertise i# the( eep "hanging their minds

o @o:

One o# the purposes o# giving an agen"( amiguous statutes is to give them

#le%iilit( #or "hanging "ir"umstan"es In ,hevron1 de&erence was given to a change in agenc polic

• All depends on wh ou think we have ,hevron de&erence in the &irst place

o -1/ In some amiguous statues, we thin the agen"( is in est position to now what

!ongress is tr(ing to sa( 'so "hanging minds seems lie the( don3t now what3s est/o -2/ Other situations it seems that a statute is amiguous e"ause the( want to leave it up

to agen"( to de"ide what3s est in "ertain "ir"umstan"es -"hanging minds maes sense/

-ational Cable 3 Teleco%%'nications )ss0n v. Brand ,nternet Services -?S 200E/

• )a"ts: Agen"( "hanged its mind and was in"onsistent with past !ourt de"isions regarding whether

roadand providers were "onsidered providing


54/64

US v. Mead Corp. -?S 2001/

• )a"ts: 6ari## statute distinguishes etween I+BAL+C -Bhat de"isions "an e up on reviewC/• Bhat is the S6A@5A*5 O) *+>I+BC -Bho "an get reviewedC/

What is appealable?

• asi" rule: agen"( a"tion is presumed to e su'e"t to 'udi"ial review

o APA 856#: presumption o# reviewailit(

o APA 856: how to get review

)irst, loo at organi" statute

ED


55/64

I# not there, loo to an( appli"ale #orm o# legal a"tion -ordinar( lawsuit/

•

o A&A: A"tion might not e reviewale where:

'"3 Organi" statute pre"ludes 'udi"ial review

'#3 Agen"( a"tion is "ommitted to agen"( dis"retion ( law

'"3 Organic statute precludes /udicial review+

9o$nson v. 8obison -?S 17D/

• )a"ts: * applied #or veteran3s ene#its, ut not eligile e"ause he was a "ons"ientious o'e"tor.

!laimed that this violated his +& rights, sued in #ederal 5!. 6here was a se"tion o# the statutewhi"h held administrator3s determinations wKrKt law or #a"t "on"erning a "laim #or ene#its as#inal -; ?S! §211-a//. !ongress thought this should help veterans K" when a matter goes to 'udi"ial review, i# agen"( has a "ontemporaneous written e%planation, "ourt assumes that3s thereal e%planation 8 post ho" e%planation is looed upon with septi"ism -Overton &ar/

o So agen"( must #ormaliJe a"tion i# the( thin something was headed #or 'udi"ial review

• !ourt: !an get 'udi"ial review, e"ause this "ase does not arise iolated pro"edures !onstitutional "laims.

o @o statute pre"luding review

EE


56/64

• !ourt: §701-a/-2/: this is "ommitted to agen"( dis"retion ( law -when statutes drawn in su"h

road terms that there is no law to appl(/.


57/64

o @ot reall( analogous to prose"utorial dis"retion -whi"h is a"ward looing, where the

a"t has alread( o""urred/

o &eople are entitled to as the agen"( to do 'ust aout an(thing, and i# the( don3t do it, that

should e 'udi"iall( reviewale

o !on"urs e"ause i# agen"( doesn3t a"t it3s usuall( e"ause it3s got more important things

going on, that would e upheld ( the "ourt 8 so it doesn3t reall( matter

?6 there are other reasons #or agen"( to not tae a"tion -i.e., i# the( were

ried 8 seems that this would e reviewale rennanM/ @otes:

• $ow serious is the !ourt aout sa(ing agen"( a"tion is not reviewaleC

o !ourt has said that i# the agen"( denies having 45, the "ourt "ould review this

o &p 01: I# agen"( de"ides to stop en#or"ing a"t altogether, that would e reviewale

o !ourt seems to e sa(ing: I# agen"(3s reason #or not taing a"tion is that the(3ve got

other priorities 8 that3s unreviewale. ut #or an( other reason, it3s not "lear whether itwould e reviewale

I# there3s a legal issue underl(ing the de"ision, that would liel( e di##erent

-also, de"lining to mae a rule would proal( involve a legal issue/

5. $ipeness

)bbott *aboratories v. Gardner -?S 1F7/

• )a"ts: )5!A re9uires manu#a"turers to print generi" name o# drugs along with rand name o#

drugs on ottle, ut statute didn3t settle how o#ten this needed to e done. )5A issued rule sa(ingthat


58/64

• Is there immediacC

o 6his is immediate e"ause the da( the rule e"omes e##e"tive,

regulated parties are all a##e"ted and must all do something Is there (;A$D);IP*? es

• reat hardship 8 e%pensive to "ompl( with or not "ompl( with regulation

o

*elies on spe"ial status o# drug industr( and the ne"essit( #or puli" trust

Toilet Goods )ss0n v. Gardner -?S 1F7/

• )a"ts: )5A issued regulation that the( must e ale to inspe"t plants where "oloradditives were

manu#a"tured. *ule said that without #ree a""ess to inspe"t, the( would suspend the li"ense tomae "olor additives.

• !ourt: 6his was also #inal 8 there "an e no 9uestion that a#ter noti"e and "omment, this is a #inal

agen"( a"tion -)inalit( and ripeness are 2 di##erent things -in oth "ases, the a"tion was #inal//.ut not ripe #or review:

o )it:

Legal: possil( -the wa( it3s #ramed ( &s, possil(/

)inal: (es

Immedia"(: no• On the da( the regulation e"omes a##e"ted, no one has to do an(thing

o $ardship:

Borst that happens is that li"ense is suspended and that "an automati"all( e

appealed or reviewed -even though this reall( means shutting down the usiness/

• )iegel: )inalit( is a hard, ne"essar( #a"tor the others are more so#t

o %he rule is the immediac &actor

@ot 100Z good law, ut generall( the rule

• 4usti"e )ortas, dissenting: !ourt is taing the side o# the manu#a"turers, a mu"h greater hardship

on the puli".

o !on"erned that impa"t will e that an(time the agen"( issues an important rule, it willtae (ears #or it to go into e##e"t, e"ause those regulated "an get preliminar( in'un"tionagainst en#or"ement o# the rule while the legislation was pending, and the rule might ene"essar( #or the prote"tion o# the puli"

!ourt3s answer: gov3t "an present its argument that the puli" will e negativel(

a##e"ted, and the !ourt will tae that into "onsideration

• )a"tors #or preliminar( in'un"tion:

o Lielihood o# su""ess

o alan"e o# hardships

@otes:Gltimate $ule+ %picall1 will be able to get pre4en&orcement review o& an agenc rule i& that rule

re7uires ou to act immediatel upon en&orcement.

• oodC adCo ives less dis"retion to the agen"( 8 oviousl( gone through #ormal *3ing, and

presumal( those who would e a##e"ted would have rought up the potential illegalit(during "omment period, and agen"( has oviousl( disposed o# this

• Bhere does the rule o# ripeness "ome #romC

o &art o# "ase or "ontrovers( re9uirement

L.

E;


59/64

Myers v. Bet$le$e% S$ipb'ilding Corp. -notes "ase, ?S 1;/

• )a"ts: !ompan( tried to en'oin admin pro"eeding e"ause oard onl( has 45 over "ompanies

engaged in interstate "ommer"e, and the( argued that the( weren3t. Banted to go to "ourt #irst e"ause o#: e##i"ien"( and "ost -wh( endure this whole pro"eeding when the( don3t thin there3san( 45 over themC/

• !ourt: 5! didn3t have power to en'oin the pro"eedings 8 have to e%haust their administrative

remedies. @L* responsile #or #inding the asi" #a"ts -whether the( were engaged in I!/.o !ourt3s answer to e##i"ien"( argument: su" it up

6his happens all the time 8 wherever (ou3re sued gets to de"ide whether the(

have 45, and must wait #or #inal de"ision e#ore (ou "an appeal it

• $ule+ :o one is entitled to /udicial relie& &or supposed or threatened in/ur be&ore the

prescribed remedies are e!hausted

McKart v. US -?S 1F/

• )a"ts: was originall( "lassi#ied as e%empt #rom servi"e as


60/64

I# agen"( a"tion is otherwise #inal, is so #or purposes o# this se"tion #or an appeal

to a superior agen"( authorit( @ot oth these re9uirements were satis#ied

o ov3t: §70D is aout #inalit(: 6hough it shows us that there isn3t a #inalit( prolem,

there3s still an e%haustion prolem

• !ourt: @ot 'ust aout #inalit(: loo at title o# se"tion.

o Bhen it3s #inal it3s su'e"t to 'udi"ial review and when otherwise #inal, it3s #inal

-regardless o# whether other remedies have een e%hausted/

o In cases where APA applies1 there is no e!haustion rule onl this &inalit rule

US v. Menende

• )a"ts: )ed agen"( was going to #ine #or shrimping without using a turtle e%"luder devi"e.

hires law(er to represent him in admin pro"eeding. AL4 didn3t lie 3s law(er, so he re#used tore"eive papers #rom 3s representative. 6his led to essentiall( de#ault 'udgment, did nothing.

o ov3t eventuall( rought a"tion against him in "ourt #or owing the #ine. "laimed his

"onstitutional rights were violated under 5& "lause. ov3t "laimed there was noe%haustion so these "laims "an3t e arred.

•!ourt: $e "ould have appealed within agen"( 8 ut is the agen"( doneC es, the( weren3t planning to do an( more with this "ase -this wasn3t a preliminar( 'udgment/C

o 2 se"tions to thin aout: §70D

§70, last senten"e: e%"ept to the e%tent that prior ade9uate and e%"lusive

opportunit( #or review is provided #or ( lawo Bas he arred K" he didn3t e%haust admin remediesC

@o 8 he "an asolutel( raise de#ense, and it was a good de#ense

@otes:

•


61/64

)ssoc. o& ata Processing Service Org 4)PSO7 v. Ca%p -?S 1F/

• )a"ts: !ommissioner passed rule allowing national ans to mae data pro"essing servi"es

availale. !laim: ans are supposed to onl( e ans, and now the(3re violated that law -anServi"e !orporation A"t/ ( provided data pro"essing servi"es

o ovt3: there3s no standing here

• !ourt: @+B 6+S6: In'ur( in )a"t ^one o# Interests. *easoning: Be want them to ring these

suits, even i# the(3re eventuall( going to e dismissed on the meritso In/ur in act+ @ot asing whether there3s a right to e prote"ting ( "ompetition/

Loss o# usiness and mone( 8 is an in'ur( in #a"t

• In'ur( in #a"t "ould e e"onomi", re"reational, environmental,

"onservational, aestheti", spiritual

o ust "hange (our li#e in some detrimental wa(

o ore o# a so"ietal, rather than legal, 9uestion

o None o& Interest+ Are (ou one o# the people the statute was "on"erned withC

an A"tK an Servi"e !orporation A"t passed to prote"t sa#et( and soundness

o# the ans #rom "rashing again -a#ter the 5epression/ S. !t.: thought it was at least arguale that it was passed to prote"t other entities

#rom "ompetition

@otes+

• %hy do we have the doctrine of standing?

o !ase or "ontrovers( re9uirement

• In'ur( in #a"t: !omes straight #rom the "onstitution, !ongress "an3t do mu"h aout it

o S. !t.: in 17;, & was alwa(s in'ured and these were the onl( "ases that were de"ided

• ^one o# Interests: Additional test, not a prudential re9uirement

o A&A:


62/64

• !ourt said the( "ould have alleged individual interest 'ust to get standing,

and then "ould have alleged a puli" interest on"e the "ase is on themerits #or remedies

@otes:

• Bh( does it matter that the(3re not individuall( a##e"tedC

o !logging o# the s(stem ut isn3t our s(stem "logged an(wa(C

o !ase or "ontrovers( re9uirement parties must have a stae in the litigation

ut wouldn3t Sierra !lu have the re9uisite interest to litigate this to the #ullest

tooC 6his is what the( do _ the time, (ou "an 'ust 'oin the a##e"ted group -i.e., go to ineral Ning >alle(

and then (ou do have standing/

• A5A&SO is a lieraliJation o# the standing do"trine, ut still retains re9uirement o# in'ur( -S!/

• In a wa(, this "ase is generous:

o At !L, i# (ou used someone else3s land and the( de"ided to uild a #a"tor( on it, (ou3d

have no remed(o @ow, "ourt is holding that something lie this "ould e "onsidered an in'ur( -sti"ing

with re9uirement o# in'ur(, ut e%panding the de#inition o# in'ur(/

• Here ideological interestJ (caring* is never enough

Sc$lesinger v. 8eservists Co%%. To Stop t$e #ar -?S 17D/

• )a"ts: !ommittee #ound that "ongressmen held position in the Arm( reserves 8 thought this

violated separation o# powers

• !ourt: @o standing. 6his is a generaliJed grievan"e -su##ered in the same wa( ( ever(one/

o I# ever(one is su##ering, that3s a signal that the politi"al pro"ess "an e trusted to tae

"are o# ito ut la" o# politi"al support might #ail the s(stem -might wor, might not/

None o& Interest $e7uirement+

)ir Co'rier Con&erence o& )%erica v. )%erican Postal #or!ers Union -?S 11/

• )a"ts: &ostal Servi"e permitted ( statute to mae an e%"eption to the postal monopol( where the

puli" interest so re9uires. ade an e%"eption #or e%tremel( urgent letters1 and private "arriersused this e%"eption to engage in international remailing. AB? was upset ( this e%"eption, e"ause the( don3t thin the puli" interest re9uires this in this "ase 8 thought it was aritrar( and"apri"ious to "on"lude that the puli" interest re9uires it in this "ase.

• !ourt: 6here was Art. III standing -in'ur( in #a"t/: +"onomi": 4o se"urit( threatened, redu"ed

usiness, some lost 'oso &rudential standing: ̂ one o# Interest

Statutes were not passed to prote"t the 'os o# postal worers

• At the time the statute was passed, there were no #ederal postal worers

oal was to prote"t postal revenues -otherwise private "arriers would tae overonl( the pro#itale routes and the puli" servi"e would e stu" with theunpro#itale routes, whi"h would put them out o# usiness/ 8 monopol( wasgood in this "ase

• %o be within None o& interest1 seems that ,ongress must have intended to protect a certain

class o& Ps

@otes:

F2


63/64

• (ow is this different from !*>?

o ust e intended, not in"idental ene#i"iar(

o +mplo(ees have generall( een denied standing to en#or"e "ompetition laws, even where

usinesses ma( have standing

-ational Credit Union )d%0n v. First -ational Ban! 3 Tr'st Co. -?S 1;/

• )a"ts: )!? A"t re9uires )!?s get "harter #rom @!?A. emership shall e limited to groups

having a "ommon ond o# o""upation or asso"iation -same emplo(er, "hur"h, et"./o +arl( ;0s: )!?A said


64/64

o -2/ Interests it sees to prote"t are germane to the organiJation3s purpose

o -/ Bhere relie# re9uested doesn3t re9uire parti"ipation o# the individual memer

• -2/ and -/ rarel( are "ontested

o -2/: Org wouldn3t "ontest something that wasn3t germane to its interest

o -/: !an3t see monetar( relie# an(wa( under the A&A

Organi-ation can also sometimes have standing in its own right :

Havens 8ealty v. Cole%an -?S 1;2/

• )a"ts: *a"ial steering "ase. $O+, nonpro#it org, wanted standing.

• !ourt: ranted standing on its own right 8 its purpose was to ensure #air housing, so with these

pra"ti"es it has to spend more mone( and timeo 6ester even had standing: Still had in'ur( to his legal rights

;aven’t thrown out legal rights test &or in/ur in &act 8 oth are still around

-!ongress "an "reate standing ( statute where it would not otherwise e%ist/

• ?nder this reasoning, shouldn3t Sierra !lu have had standingC

o 6his "aseKtheor( hasn3t een heard #rom sin"e

@otes:• 6here is a "ertain politi"al element to these "ases:

o Bh( did &s in $avens have standing ut not &s in *eservistsC

ore individualiJed in'ur(

*a"ial tensions politi"al aspe"t

o ans have standing e"ause the(3re ansR

• Bhat3s the a"tual ruleC

o I# (ou3re a usiness, and (our "laim is

Documents

Administrative Law - Siegel - Spring 2007_4