Final Admin Outline

8/3/2019 Final Admin Outline

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CHAPTER 1: ADMINISTRATIVE LAW PRACTICE

INTRODUCTION

ALWAYS START WITH THE STATUTE!

The agency must always have a statutory grant of power to do what it is doing.ALWAYS ASKif the agency is within the power granted to them.Start your discussion always with The statute says, because that statutory grant will mark the limit of theagencys power.

Must also have explicit power to promulgate regulations.

Typical outcome of administrative agency lawsuits:Plaintiffs often losethe court usually defers to the agency or county.

What do agencies do?

1. regulating private conduct or the conduct of other government bodies2. administering entitlements (here, the volume of cases would be so huge that the appellate process

must be streamlined and very routine)3. everything else (e.g. INS, IRS)

Types of agency action:

Rulemaking (legislative function) Adjudication (judicial function) Investigation (executive function)

o Types of power to obtain information:

Subpoena

Compel filing of reports by regulated bodies

Inspection

Agencies: 551(1) definition

Departments (Treasury, HUD, Interior, Labor) Independent Agencies (FCC, FTC, NLRB, SEC)

Independent Agencies:These agencies have boards rather than sole heads, so they wont change that much with presidential whims. Theboard members have fixed terms, and the president cant remove them except for cause. Should there be this type oflimit on presidential power?

Andersens Rule of Politics: nothing is ever really finished. The losing party can always seek a new forumtomorrow (go to Congress, appeal, etc.)


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APA BASICS (Administrative Procedure Act of 1946)

Definition of RULE: 551(4) ignore the particular applicability portion (Andersen thinks its misleading),and just focus on the generally applicable language. General applicability and future effect.

Definition of ORDER: 551(6) other than rulemakingincludes licensing ( 551(a)) and permits ( 551(8)).Definition of ADJUDICATION 551(7)Definition of RULEMAKING 551(4)&(5)

RULEMAKING - 553

Informal Rulemaking:Three-step process

1. Agency must publish a notice of the proposed rule in the FR. 553(b)

a. Exceptions: interpretive rules, general statements of policy, or rules of agency organization,procedure, and practice. 553(A)b. Also can bypass notice for good cause. 553(B)

2. Agency must give interested persons an opportunity to participate by submitting written data or maybeoral presentations at a hearing (at agencys discretion). 553(c)

3. Agency must incorporate in the rules a concise general statement of their basis and purpose (whichappears in the FR along with the rule). 553(c)

Formal Rulemaking:In formal rulemaking, the agency replaces steps 2 & 3 above with procedures in 556-557.

553(c) TEST: Formal RM required when agencys mandate statute requires the rules to be made on the recordafter an opportunity for agency hearing.

Hybrid Rulemaking:Some agencies are required to follow more procedures that are added to the basic floor of informal RM. E.g. FTCmust include an informal hearing with oral presentations, and can include witnesses and cross-examination. Butdoesnt rise to level of formal RM.

ADJUDICATION - 554

554(a)TEST: Formal adjudication required when the agencys statute requires determination on the recordafter a hearing. * If so, use 556-57.

Formal Adjudication: 554 requires the use of procedures typically used at trial.

Notice. 554(b) Opportunity to reach a settlement. 554(c)(1) Must be conducted in accordance with 556 and 557.

556 Addresses the hearing procedures; authorizes use of ALJs ( 556(b) (c)) and places the B/P on theagency. Any decision must be based on the evidence in the record. 556(d) 557 Addresses the appeal procedures.

Informal Adjudication:


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If agency doesnt have to conduct a hearing on the record as mandated by their statute, then the APA does notprescribe any procedures for adjudication.

Exception: Agency must follow certain hearing procedures if statute requires some hearing to be held,though not formal adjudication; or if the due process clause applies.

STEP #1: Ask what type of action

552 Formal rulemaking; publication in FR, FOIA requirements.

553 Informal rulemaking

554 Adjudicationso Licensing

o Revocation

o Assessing penalties

556 Formal hearings for formal rulemaking/adjudication. Very court-like, burdens of proof, evidence, cross-examinations. Subsection (c) talks about transcripts & exhibits, which create the record for decision.

557 Decision-making. Who is qualified to make the decision? Persons presiding over the 556 hearings areALJs (who have some measure of independence b/c pay and tenure is set by another agency).

o WAPA: office of administrative hearings is totally separate.

o Appeal from the ALJ goes to the agency itself.

Judicial Review 701 JR may be precluded by . 702 Limits s; must have standing. 704 final actions only are reviewable. 706 scope of review (lists several standards of review)

Goals for APA procedures:

o Accuracy in fact-finding

o Efficiency acts as a constraint.

o Acceptability.

ETHICS

Article: Bruce Fein (p. 38)New Reagan administration philosophical dispute with agency.Used New Deal attorneys as an example should always support the President and try to help his agenda, becausehes the client.Article: Douglas LetterSituations where the government attorney had different obligations than the private attorneys (had to be moreethical).

o DOJ attorneys: goal is to do justice. Can take a broader position because they dont represent any particular

agency.

Considerations:

Agency is client? President is client? Higher duty to serve justice?


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Pay attention to the Rules of Professional Conduct. In an extreme case, if the RPC does not agree withwhat your client is asking you to do, your only option might be to quit.


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RULEMAKING

INITIATING RULEMAKINGRecall that hideous 1980s movie: The Rulemakers.

Initiating the RM process:

What are you asking for?

Repeal Amendment To promulgate a new rule?

Where do the ideas come from?

Bottom-up (lower level workers in agency make suggestion to supervisor) Top-down (political pressure from agency head, Congress, President) Outside the agency.

o Problem: youre a member of the publicwho do you go see to get your issue heard?

o Note the complexity of the organizational chart of the EPA, p. 53.

o Try to avoid both the very top and very bottom officestry to strategically target the person whocan make or propose the change you seek.

How do you approach this person?

Friendly relationships are best; dont come in screaming about what you want. Protect your reputation and your word. Tailor your argument

o Let the person know why your proposal would benefit his agency.

o If youre meeting with someone who has a science background, consider bringing someone with

similar training from your clients business so they can talk on the same level.

o Connect the agencys mission with what you want.

PETITIONS FOR RULEMAKING

Agency declines to make your rule petition for RM

553(e) each agency shall give a person the right to petition for review. 555(e) the agency must deny your petition in writing, setting forth their reasons, and do so promptly. Begin informally if you canstarting this petition process pits you against the agency as an adversary. Filing a petition for RM is a way to force the agency to take some action.

AGENCY INACTION: 551(13) defines agency action to include failure to act 706(1) reviewing courts may compel agency action unlawfully withheld or unreasonably delayed.

TRAC v. FCC (p. 65)Is the agencys delay so egregious as to warrant mandamus?Factors to consider:

1. time agencies take must be governed by a rule of reason.2. Congress timetable or statutory scheme can supply the content for this rule of reason3. delays that might be reasonable in economic issues may be unreasonable when health or welfare is at issue4. court should consider whether agency has other tasks that take higher priority5. take into account the extent and nature of the interests harmed by the delay


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6. court need not find any impropriety lurking behind the agencys lassitude to hold that it is beingunreasonable in its delay.

rule of reason in factor 1 means just to contrast it with the per se approachtake in all thecircumstances.

Judge said there that 4 years is probably unreasonable, but will also look to whether Congress set anydeadlines.

Factor 4 is always part of the agencys argumentthat they have other priorities.o Not the role of the judge to set prioritiesthe SCOPE OF REVIEW is quite narrow, limited to

what was arbitrary.

REMEDY: Court retained jurisdiction. This is like a mild sanction that means the court will monitorcompliance.

Some courts think that even agency SHALL do this in 60 days rules are non-binding, and can bemodified due to agency priorities.

DENIAL OF PETITION

Arkansas v. ICC (p. 70)Agency gave a reasonwants to proceed in a case-by-case manner and doesnt want to write a broad rule yet.Judge found this was not unreasonable, and not arbitrary or capricious. Passed the 706 test.

Judge described the test again as narrow; court must accept what the agency does unless it truly isegregious.

Mass v. EPAAsking to regulate greenhouse gases - 15 mos later asked for comments then denied the Rulemaking Order - narrowreview by courts - deference to agency to marshall resources - once EPA responded their actions must conform withauthorizing statutes - offered no explanation for refusal - MUST ground reasons for action or inaction

Affirmative decrees are harder to enforce than a negative injunction. Courts are reluctant to force action.

BASIC PROCEDURE (p. 91 111)

U.S. v. Allegheny-Ludlum Steel Corp. (p. 92)

ICC set rates for railroad cars using informal rulemaking. Corp. sought JR. How do we know they were rulemaking? 551, the definitions: note the emphasis on future rates in the

statute.

Since they were rulemaking, they had to choose whether to use informal or formal procedures. APA 553 says that if the statute that gives the agency its power requires it, then you use formal. Wed

have to look at the ICC act to see if that statute requires agency rules to be made on the record after ahearing.

In this case, there was no requirement that the rules be made on the record, (only that it had to be afterhearing) so 556 /557 did not apply and they properly used the informal process.

Not equivalent to on the record - need to be explicit!

APA never requires formal rulemakingit only gives guidance for when the authorizingstatute requires rules to be made on the record after a hearing. CHOICE is left to Congress.

The agency may also make their own rules, to add stricter procedures if they choose.

U.S. v. Florida East Coast Railroad Co. (p. 92)As noted in Allegheny, the ICC language that after hearing does not trigger the formal rulemaking procedures.The district court here thought that there were more factors in the statute that indicated formal rulemaking. Courtwas trying to send Congress the message that they have to use the magic language in order


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to require formal hearings. Even if there was a formal hearing required, it did not mean you get to have cross-examination or the right to present oral arguments (the exception in 557).

Why the hostility towards formal rulemaking?

RM seems to work best as a legislative process. Injecting too much legal complication makes the processless effective.

If Congress wants formal RM, they have to use the explicit language in the APA, to make clear theirintent to have a rule made on the record.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (p. 94)Held: absent constitutional constraints or extremely compelling circumstances, agencies should be free to fashiontheir own rules of procedure and pursue methods of inquiry tailored to their tasks. List of considerations given tosupport the courts holding:

1. importance of predictability of JR2. too much second-guessing

3. misapplication of the standard of review

Court of Appeals wanted to remand the case back to the agency due to inadequate support in the record. SupremeCourt said that the court may not add additional procedures to what the statute requires. Justbecause the Court of Appeals wants a hearing on the record doesnt mean the agency has to do that if their enablingstatute doesnt require it. = 553 is a ceiling, a floor

Criticisms of this holding: Nuclear waste is more important than setting railroad rates. Courts should be allowed torequire stronger protections in the public interest. Yes, but isnt that Congress role?

INFORMAL RULEMAKING REQUIREMENT - NOTICE 553(b) actual or constructive

Chocolate Manuf Assc v. Block [flavored milk]

Final rule dramatically altered - agency cant do that and establish a rule contrary to the original proposal simplybecause receives suggestion to alter during comment period - TEST: (1) notice is adequate if changes in originalplan are in character with orignial scheme AND (2) final rule is a logical outgrowth of N&C already given

NOTICE AND COMMENT EXCEPTIONS

553: rules of agency organization, procedure, policy/ interpretive rules/ general policy statements/ other rules thatare impracticable, contrary to public interest, unnecessary

Air Transport Assc v. Dept of TransportationFaa engaged in N&C before promulgating body of regulation governing the adjudication of admin civil penalties -penalty rules arent exempt because they substantially effect the defendants rights - time does not constitute goodcause - essential to administrative governance: congress judgment of informed admin decision after opportunity to

be heard by interested persons are not exempt b/c merely procedural

American Hospital Assn v. BowenAHA brought v. HHS for circumventing the N&C under 553 - Gradual shift of focus from asking whether a givenprocedures as a substantial impact on parties to inquiring more broadly whether the agency action also encodes asubstantial value judgment or puts a stamp of approval or disapproval on a given type of behavior - not solelysubstantive - procedural rules are exempt under 553 (here the manual did not impose any new burden or newstandard, mere inconvenience was not enough) - exemptions dont apply to action that substantially alters rights orinterests of regulated parties


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Jem Broadcasting v. FCCHard look issue - HELD: critical feature of procedural exemption is that it covers agency actions that do not alterrights or interest of parties - procedural impact on degree - substantial effect sufficiently grave so N&C are neededto safeguard policies underlying APA - hard look doesn't change substantive standards

EX PARTE CONTACTS

Comment Process (APA 553(c))Look to the APA, and the agencys own rules to see when and how comments are taken. Check to see if oralpresentations are allowed, or what written format is preferred (e.g. email, other types of presentations).

553 gives agency a fair amount of discretion to allow oral presentations or public meetings. Agency CAN dopublic meeting if it thinks it might be useful (clients job is to persuade agency to have one or not). These are theofficial comments on the rules, submitted during the official comment period. The difficult legal issues arise out ofunofficial comments that are made outside of this process.

551(15) Definition of ex parte communication; can ask about status reports ex parte.

557(b) prohibits ex parte communications in formal rulemaking procedures in certain circumstances. (Nointerested person from the outside can make contacts with the ALJ).

554(d) has some other limitations on communications foradjudications. Employee who presides at receptionof evidence (usually the ALJ) may not consult a person or a party (probably a person in the agency, not outside)about a fact in issue. The prosecutors and investigators are forbidden from consulting with the ALJ, nor may theytalk to the head of the agency on review.

There is nothing in the APA on ex parte contacts for informal rulemakinglook to the agencysown statute.

HBO v. FCC (p. 113)Court orders that any ex parte contacts that impacted the decision should be made public, and that any

written documents should be put in some sort of file. Court thinks there is an aspect of notice and an opportunity torespond (the adversarial process) that is being offended by this process. Was court also concerned about its ability toreview and compare the record with the rule it supportsbut cant the court review the body of material and say thatthe rule isnt supported? What about the appearance of unfairness that the court was concerned with?

This case is of questionable status. It was not extended in Sierra Club, and most other courts think it isunduly restrictive on the free flow of information needed in this process.

Once a notice of proposed rulemaking is issued, any agency employee who may reasonably be expected to beinvolved in the decision process refuse to disclose matters relating to disposition of a rulemaking proceeding

See also Sangamon Valley TV Corp. v. U.S., which raises DP issues when the RM involves conflictingclaims to a valuable privilege, like broadcast rights in a proceeding that has more of an adjudicative feel.

Sierra Club v. Costle (p. 116)The Clean Air Act required a rulemaking docket for each proposed rule, which would serve as the record for JR.Comments during the comment period would obviously go in, but what about the post-comment period? Agencymay always extend the comment period if requested.

This case casts doubt on the validity ofHBO. But this case if pretty limited to the extra requirements in theClean Air Act, which made extra requirements for the agency to follow. If the statute doesnt expresslyrequire everything to go in the record, theres not much the court will do with ex parte communications.

doubts validity of HBO if statute not explicit, then not much ct can do


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D.C. Federation (p. 124) Congressmen threaten agency to give them a bridge. Court held that the extraneousthreat should not have been considered in their decision.

NEW FORMS OF RULEMAKING

Hybrid Rulemaking ProceduresRare for an agency to only be bound to the APA most administrations impose additional requirements:o National Environmental Policy Act - Environmental Impact Statements - procedural, substantive

o Regulatory Flexibility Act - singificant Economic Impact on subst. # of small entities

o Paperwork Reduction Act - OBM

o Executive Order 12866 - CBA principal method; annual processing; periodic review

o Unfunded Mandates Reform Act of 1995

Negotiated Rulemaking Processes3 articles listing pros and cons. Thought generally to be a good thing, although Funk and Andersen disagree. (see p.146)In negotiated RM, an agency and other parties with a significant stake in the rule participate in a face-to-facediscussion to build consensus. Once consensus is reached, the notice is published in the FR and it proceeds in the

conventional notice and comment.

JUDICIAL REVIEW STATUTES706 SCOPE OF REVIEW

Statutory Interpretation

Chevron v. NRDC (p. 148) (1984)Very important case most cited case in Administrative Law.Courts will defer to any reasonably permissible agency construction of a statute.Here, EPAs interpretation of source included bubble sources, where there are 2 or more facilities on one plant,and they can be included together as one source. The politics behind this change is not supposed to be included in

the analysis (p. 150).

Chevron 2-step:

1. Does the statute clearly require or forbid the agencys interpretation? Has it spokendirectly to the precise issue in the case? If so, then the court examines whether the agencysinterpretation squares with the statute. (little deference here)

Plain Meaning: language of statute Second Approach: law as a whole, Legislative History

2. If the statute does not clearly answer the question (is ambiguous), then the court willdetermine whether the agencys interpretation is reasonable or permissible. (lots of deferencehere)

NOTES:o Chevron lowers the intensity of judicial review, court may not substitute its own judgment for that of the

agency must be deferential.

o Note the relationship hereas intensity of JR goes up, the freedom of the agency goes down.

o Why in step two should a court defer to an agencys legal interpretation that they think is incorrect? 706

says that courts shall decide all questions of relevant law. How do you justify that inconsistency? Courtsought to respect the delegation of legislative authority.

o But how clear does that conferring of power have to be? (Delegation can be implicit or explicit).

Implicit delegation might take the form of an ambiguity.


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Now they are in roughly the same range of intensity. But in the problem materials, Congress hasdetermined that the agency has to meet both standards. (see p. 169).

Andersen thinks that the SE test doesnt make sense where theres an open-ended record, like in rulemaking.

SE test seems to imply a more intense standard.

Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins. Co. (p. 176)(p. 178) definition of A&C:

Rational connection between the facts found and the decision made? Based on relevant factors? Clear error of judgment? Agency relied on factors Congress didnt want considered? Agency failed to consider something Congress thought was important? Failed to provide an explanation?

o Does the explanation require us to yield to the agencys expertise?

Held: if the agency fails to take something very important into account, that wont suffice if the agency doesntprovide a good explanation.

Chenery (p. 167)Court will remand the rule back to the agency to rethink it if it finds its against Chevron. This is the standardremedy.

JUDICIAL REVIEW TACTICS; ETHICS

State Farm is the last articulation of what A&C means.Look also to 706 to see what standards are involved. The APA doesnt require the substantial evidence testunless youre doing formal rulemaking ( 556/557).

Issue in State Farm: Does the standard of review change based on the agencys actions?What if the agency refuses to write a rule, or if they rescind the rule? Is this the same as where the agency writes arule that someone challenges?

Rescission of rules is treated just like a challenge to a rule itself. The agencys refusal gets more deference.

1. rely on factors that congress intended to consider?2. fail to consider impact aspect of problem?3. offer an explanation for its decision that contradicts the evidence before it?

Ethics: Challenging/appeal for the purposes of delay.

Can get a stay of the rule when you appealshould you if you know you will lose? Must be in good faith, cant be frivolous.


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What if youre bringing the appeal solely for delay or partly for delayo You cant ethically bring an action to solely cause delay.


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ADJUDICATION

INTRODUCTION TO ADJUDICATION

First question: is it formal adjudication or informal adjudication?

What does it mean to say that adjudication is formal? 554Five subsections:

(a) Lists areas where adjudication doesnt apply

(b) Notice required how much and what

(c) General procedure. If you cant settle it, you have a formal hearing under 556 and 557

(d) Ex parte communications

(e) Declaratory orders

556 and 557 cover formal adjudications 556 covers hearings. Establishes the formalities very trial-like. Produces a lot of paper which has to be theexclusive basis for the decision (556(e))

557 covers decisional process and internal appellate process.556(a) & (d) Burden of Proof: Proponent has burden of persuasion

Also known as a trial hearing, evidentiary hearing, trial on the record, or formal adjudication.

If statute doesnt require a hearing, but the Constitution does: if statute doesnt require a hearing to revoke a license,due process does require it. Therefore its a required hearing, and so you have to do it according to 556 and 557.Fulfills the due process requirements. Later well read a case that calls this into question courts now think dueprocess doesnt require as much as 556-557.Use formal process when hearing is required by statute, on the record, etc. same language as formal vs. informalrulemaking.

States vary in what they require some dont follow the APA model. Some just list a bunch of situations thatrequire a formal adjudication.

Informal adjudication

If you dont get a formal one, what do you get under the APA? Nobodys sure the APA doesnt have a lot ofguidance.Informal adjudications include deciding welfare benefits, deciding whether someone getsinto a state law school.

Sea Coast (p. 198)If youre asking for permission, its a licensing proceeding. Licensing proceeding is adjudication. Includeslicensing as a matter of statutory definition.Language is set out on p. 199 if after opportunity for a public hearing, person demonstrates to the administratorssatisfaction, then they can get a license. Does this require a formal hearing? Court says its not clear what they hadin mind. In rulemaking case about railroad, court said if Congress is vague, you use informal

rulemaking. But here with adjudication its the opposite: if Congress says a hearing isrequired and they dont specify, then were going to require a formal adjudication.

Southwest Sunsites v. FTC: SW accused of misrepresenting investment and potential land value to reasonableconsumers - is notice required satisfied where parties understand relevant issues and were afforded full opportunityto justify their conduct? - APA requires parties involved in agency complaints to be timely informed of the mattersof fact and law asserted - Std used by FTC was different than that used by judge, but imposed a greater burden onagency since probably deception and detriment to the consumers had been expressly proved - SW had more thanadequate opportunity to respond to the complaint


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John Capanos v. FDA - lack of proper notice? may agencies summarily withdraw approval for applicationsafter providing the party with due notice? Yes - no ambiguity, contained enough info to identify material facts

Wallace v. Brown: full disclosre of hearing required opportunity for cross examination - element of fund.fairness

PROCEDURE

Handout: Three Models of Agency Decision-Making

Mixed model

Look at 554(d) judges are within the agency system. How can we get them enough independence to keep theadjudication from being entirely internal?

Judges cant consult agency on an issue before them. Cant put judge in an office where theyre supervised by aprosecutor or investigator we want to insulate them from the policies and enthusiasms of the agency.

If you want to punish an ALJ, you have to go to the Merit System Board to do it the agency cant fire them if itsnot happy.

One of the reasons agencies avoid formal RM is that theyll have to use an impartial ALJ. In informal adjudications,they can use an administrative judge from their own agency, who doesnt have the impartiality and independence ofan ALJ.

How much deference does the head of the agency have to give to the ALJ? Agency head has enormous power underthe federal act, but a lot less under the WAPA.

To figure out how much independence there is, look at the statute that regulates relationship between judge andagencyLook at how much deference the head of the agency has to give the ALJs decision

Notice you can appeal if you havent gotten adequate notice AND you were prejudiced by your lack of notice.

EX PARTE COMMUNICATIONS

In a formal adjudication as required by the statute: (If it was informal, then the APA doesnt apply)

a. 556/557 apply here since its formal.b. 557(d)

i. Where do the ex parte communications come from?ii. Did the communications influence the decision-makers?iii. 557(d) doesnt apply to uninterested persons. (PATCO says that if someone has more of

an interest than the general public, they might be an interested person.)

iv. Must be outside the agency. (How far does the agency extend? Does it include membersof the executive branch?)

v. Target can be any member of the body comprising the agency, the ALJ, any other EE whomay be or reasonably expected to be involved in the decision-making process.

vi. Cant make an ex parte communication whats that? Definition is in 551.1. Exemption : a status report request by an interested person outside the agency is

not an ex parte communication. Why exempt these? Congress wanted to protectits own ability to make inquiries.

2. Exemption p. 243 : accidental, passing contacts are okay. (but not a very strongdefense.)


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vii.Communication has to be relevant to the merits .PATCO v. FLRA (p. 236)Secretary Lewis, although in the executive branch, was outside the agency.Importance of flexibility/common sense, dont want to have a mechanical rule. (see p. 241)Decision is not void b/c of ex parte contacts, but is voidable.How can we tell if its voidable? See p. 242 for a list of factors:

gravity of the offense, who benefited, how much it influenced the decision, did opposing parties know about the contacts and get to respond, and would it serve a useful purpose to remand the agencys decision.

Stone v. FDIC (p. 246)Only new and material information introduced by the ex parte communication will violate DP. So someone wouldhave to show whether this was new information.

Is it relevant that this communication didnt go right to the decision-maker? Not reallyit still influenced theproceeding.

DUE PROCESS APPLIES?

Appearance of Fairness doctrineEven if judges dont talk about it, they respond to it. See the CALI lesson on ex parte.

Does DP apply?Must have a STATE ACTOR.

Londoner (p. 251)Levied assessment on Mr. Londoners propertyDP? Yes he has to be able to appear in person and challenge the decision.

Bi-Metallic (p. 252)DP? No no hearing required.

Whats the difference in the two cases?

# of people extent of impact factual basis for determining the impact on each person (See p. 253 these Holmes three factors)

Pierce/Davis discussion (p. 253)

Legislative facts general facts, questions of law/policy/discretion Adjudicative facts who, what, where, why, etc.

HOW TO TELL WHETHER DP APPLIES

1. State is a factor2. Individualized determinationa. Adjudicative factsb. Ask whether agency is making a judicial or legislative determination.

i. Entitled to NO DP in legislative process (recall Londoner, which was moreadjudicative)

3. Protected interesta. Property


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b. Liberty (Constitution limits the protection to certain interests)c. Procedural DP only reaches the question of what protections/procedures the student needs before

expulsion.

Stigma -Codd v. Velgar (p. 263) as a practical matter, will the stigmatizing remarks be publicized?

Stigma Plus Doctrine does it impact future employment/education prospects?

Fact must be relevant and in dispute if not, no reason to have a hearing.

Property -Goldberg (p. 256) once you qualify for welfare, you have a right to keep it.This case abandoned the rights/privileges doctrine.Roth (p. 257) Property, because had a legitimate claim of entitlementSinderman (p. 259) had an implied K, so claim of entitlement.

Is it an entitlement? Is the decision-makers discretion constrained? See p. 258: K? State law?

WHAT PROCESS?History of DP jurisprudence

Prior to 1970s who decides what interests are protected, whether its a right or a privilege?o Court ultimately decided whether it was a right or a privilege.

o Had a long list of what was each which was a product of judicial bias on social importance of

each interest. No principled way of making that distinction.

1972: who now decides what interests are protected, what property means, etc.?o Now legislature decides look to see whether the legislature has laid down a claim of

entitlement. This was a major paradigm shift.

o See Board of Regents v. Roth, Goldberg v. Kelly.

Benefits : legislature is politically accountable. Risk of turning this decision over to the legislature: sometimes majority rule means oppression.

Steps in the analytical process:1. Whether there is a liberty or property interest

Is it a property, liberty, right?

Liberty is more of a judicial question.Is there a protectable interest?

if so, then due process attaches

2. What procedures are required?When does a hearing have to occur?

Goldberg v. Kelly (p. 266)Entitled to a hearing before termination of welfare entitlements.

Question was WHEN the hearing should be held attaches before the injury/termination occurs. WHAT KIND of procedure required? pre-termination hearing plus many practices that are similar to

formal adjudication.Problem with this holdingadministration of these elaborate procedures would be a disaster. Volume of cases wouldbe enormousthe DP explosion.

Matthews v. Eldridge (p. 268)Cost benefit analysis with 3 factors:Formula for deciding what procedures are required and when.


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1. What is the sufficiency/magnitude of the right affected?2. Benefit of the additional procedures?3. Costs of the additional procedures (cost to public)?

Eldridge was very poor, on welfare, clear on record that he was destitute. Court brushed it off by saying that ingeneral there is nothing in the disability system that says you can only get disability if youre poor (as opposed to theGoldberg welfare case). This case was wrong on its facts, but is it a good general rule?

Could have made a case for more testing of the facts presented on Eldridges disability.

Look at the 3rd step: costs

Administrative burden and other societal costs. Cost of conducting the hearings rooms, judges, secretaries, etc. Cost of improperly paid benefits during a hearing before someone is found ineligible. Costs to other people who are eligible (who cant get attention from agencies that are busy with hearings)

or who get less when limited resources are diverted to hearings.

Judicialization: substitute of judicial opinion for expert decision-makers at the agency. How do youmeasure this cost?

High Substantial Medium Insubstantial No cost

Cost/benefit analysis:More formality = more coststop where the benefits are optimum as well, or they will start costing too much (recallAndersens diagram where the lines for benefit and cost cross (cost is y, formality is x axis)

Board of Curators of the University of Missouri v. Horowitz (p. 273)Didnt reach the question of whether state medical college attendance is a property right.

BIAS

There must be some level of neutrality in the decision-maker for things to be FAIR. See the FTC case, where members of the board had opinions prior to the decision, but was held to not

violate DP because their minds werent irrevocably closed before hearing the evidence. Is the decision-makers mind already made up?

o Predisposition on a legal issue (or even policy issues) does not disqualify a judge.

o But if the judge has an opinion about the facts, thats a problem.

o Judges are reluctant to find a decision-maker to be biased.

Structural bias (decision maker investigates and judges combination of functions) is not necessarilydisqualifying either. 554(d) effort to separate functions in the APA. But 554 doesnt apply to thehead of the agency, for practical reasons.

What about actual or probable bias (in the head of the decision maker)? it is disqualifying, but rare.Pecuniary interest, criticism of a particular party.

Withrow v. Larkin (p. 278)

Sometimes those who investigate are the judges as well.

JUDICIAL REVIEW FACTS

Formal Cases: Where do you look for the standard of reviews magic language?Always start looking IN THE STATUTE

APA Agencys enabling statute Some statutes apply across the board to many agencies


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Where else do you look?

Agency regulations Legislative history or commentary from Congress

Less intensive More intensive

No review Arbitrary andcapricious

Substantialevidence testunderEdison

Substantialevidence onwhole record

Clearlyerroneous

Preponderance ofthe evidence

De novo

Variety of grounds by which agency action can be reversed: 706(2)(B) has the Constitution been violated? 706(2)(C) has the agency exceeded its statutory authority? 706(2)(E) fact issues: substantial evidence test, applied usually when theres been a formal hearing on therecord. 706(2)(F) fact issues; provides de novo review rarely 706(2)(A) arbitrary and capricious test, which can involve legal, factual, or mixed issues a.k.a. abuse ofdiscretion/rational basis test.

706(2)(D) court can reverse an agency because of procedural error.

SUBSTANTIAL EVIDENCEWhen is the substantial evidence test used?

If the proceeding is a formal one, with a decision based exclusively on a formally compiled record (formaladjudication for example), then substantial evidence might be relevant to some matters (like factualfindings).

APA 706 says that any formal proceedings are reviewed for substantial evidence. This test is often used even when not specified in the statute, when it seems like it fits Should be limited to factual issues.

Changes to the standard over time (pp. 282-283)

Consolidated Edison (1938)If there was more than a scintilla of evidence supporting the decision, it had to be upheld. No consideration ofcontrary evidence.

Could a reasonable person have arrived at that conclusion based on the facts in the record that support theconclusion?

Doesnt take into account any contrary evidence.

Universal Camera Corp. (1951)Substantial evidence test applied to the evidence on the whole record on both sides. More intensive than theEdison test.

CLEARLY ERRONEOUSIn re Zurko does the reviewing judge have a definite and firm conviction that an error has been committed?

Used for appellate courts reviewing a trial court finding of fact.

Reviewing the ALJs determinationCourt of Appeals

|[Substantial Evidence test]

|Agency

|


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[De novo review]|

ALJ

557: Agency has all the powers of the ALJ when reviewing his findings, so its de novo and theyre notrequired to defer to the ALJs findings and conclusions.

Why? Agency has more political accountability, expertise, and legitimacy.

Can the agency ignore the ALJs findings?Universal camera says nosometime agency has to consider ALJs findings. ALJs findings are part of thewhole record, so when the appellate court asks whether the agencys decision is based on the whole record, it willlook to see whether they considered the ALJs findings.

Demeanor of witnesses in the hearing and credibility are better decided by the ALJ who was there.

JUDICIAL REVIEW LAW/FACT

Pure question of law: can be determined without reference to the facts (whats the speed limit?)Pure question of facts: can be determined without reference to the law (how fast were you going?)

Scope of review:Pure fact: de novoPure law: substantial evidenceMixed: agencys decision should be based on the record and have a reasonable basis in law.

NLRB v. Hearst (p. 297)

Court looked to legislative history, finds that the term employee is to be interpreted broadly. Nodeference at all on that question.

On the question of whether the newsboys are ees, we have the Hearst formula: is the agencysjudgment reasonable? Pretty deferential.

Standard of review is distinct for the law and fact issues:o Law: is there a reasonable basis in the law?

o Fact: does it have warrant in the record?

Hearst 2-part test: (p. 299)

1. Has congress defined the term, or delegated it to the agency? Look to legal sources Statutory language Structure Goals/purpose Legislative history

2. If no congressional definition, its left up to the agencys reasonable interpretation. If question is one of specific application of a broad statutory term, deferential review is appropriate.

Chevron and Hearst are extremely similar:Step 1: no deferenceStep 2: fairly deferential

Evening Star:Why did he have the gun? Court concluded that it was plausible for him to have it for safety in his job. It was withinthe scope of employment even though objectionable. Took place during an enforced lull.

Durrah


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No connection between the violation and the injury. Was he close enough to what he should have been doing that hewas in the scope of his employment.

ARBITRARY AND CAPRICIOUS

706 has a bunch of standards many are applicable to particular statutory situations, but arbitrary and

capricious can be applied to just about anything. Abuse of discretion is kind of the same thing, so you can usethe cases on abuse of discretion to help you with arbitrary and capricious.

Whats discretion?If the agency can give a fine of up to $100 for speeding, depending on various factors, any fine of $100 or less ispresumably within its discretion, and anything over $100 is not. What if someone has a perfect driving record, wasbarely speeding, nobody was hurt or endangered, and the agency person gave them the maximum $100 fine? Thatsabuse of discretion. Why? They ignored the factors that the legislators wanted to use, and made the decision basedon some other, non-permissible factors.One judges definition: A clear error of judgment about weighing the relative factors.

How does this work in practice?See Overton Park (p. 307). Statute gives the factors that must be weighed to make a decision. Did the Secretaryfollow them? We cant tell the Secretary didnt articulate his rationale. If you dont identify the rationale, thecourt cant review your decision, so the decision-maker needs to be explicit.

Agencies dont have to follow their own precedent, but if they dont justify the change, theres a risk the decisionwill be arbitrary and capricious.

First, find out what the agency did.Next, look for a mistake in the balancing of the factors a clear error of judgment.Whats the standard? Used to be that anything non-crazy was okay. But afterState Farm, the hard lookstandard might be applicable in adjudication as well as rulemaking.

State farm: adequate reasons: 706(2)(E): in informal rulemaking or informal adjudication, court reviews factual

questions of law/policy


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CHOICE OF PROCEDURE

ADJUDICATION

When agencies want to adopt new policies, they have a choice of procedures, including adjudication, rulemaking,non-legislative rules, etc. Speeches and press releases might give some informal preliminary clues obviously not

binding, though.

Advantages of adjudication: Gives agency flexibility in a variety of situations good thing for agencies likethe NLRBDisadvantages of adjudication: Doesnt provide the open forum of rulemaking, doesnt give a bright-linerule requiring a certain reimbursement system for everybody like rulemaking does, plus youre only hearing fromthe particular parties to the adjudication.

NLRB v. Bell Aerospace: retroactive decision re: liability/fine - legal consequences mostly prospective, ct not tosecond guess

Retail Wholesale: (1) first impression, (2) abrupt departure or fill void (3) reliance on formal rule (4) degree ofburden (5) statutory interest

Who gets to choose?Chenery: choice lies primarily in the informed discretion of the administrative agency.How do you show an abuse of discretion? Compare adjudication to rulemaking agency can make these choices.Especially if agency could show that there are so many variations in the market that one rule couldnt possibly covereveryone, or if the area is so new and unsettled that they dont know enough to make a good rule, then youd have abetter argument for that discretionary exercise.Whats the burden?If FTC only issues a cease and desist, the burden is relatively small. If theyre requiring refunds, though, there isprobably a lot more, and youd need to show that the statutes interest in consumer protection was high enough tojustify that huge burden.

Five factors at top of p. 328 you have to look at the particular facts of the case and see how the factors apply.Generally, courts wont find an abuse of discretion unless theres a retroactive application that causes more harm

than good.

(1) first impression, (2) abrupt departure or fill void (3) reliance on formal rule (4) degree of burden (5) statutoryinterest


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RULEMAKING

Legal issues that arise when an agency chooses to do RM:

1. Does the agency have the authority to promulgate substantive rules?2. Can the agency restrict the scope of adjudicatory hearing rights by promulgating a rule that eliminates themateriality of facts that otherwise would be subject to resolution in a hearing?

3. Can the agency give retroactive effect to a rule?4. To what extent does DP limit an agencys authority to use adjudication to clarify an ambiguity in a rule?

Impact on adjudication rights:

By adopting a legislative rule, the agency might be able to limit the scope of rights to formal adjudication.Storer Broadcasting Co. (p. 333) held that it was okay even if RM did have this impact.no material facts, no hearing

Retroactive rules:

Bowen v. Georgetown Univ. Hosp. (p. 334)Agencies do not have the power to give rules retroactive effect without an express grant of such authorityby Congress.

Ambiguous rules:GE v. EPA (p. 337)Violates DP when EPA enforced a reasonable interpretation of their own regulations because it did not gives fair warning of what was substantively required by the regulation.

POLICY STATEMENTS (NON-LEGISLATIVE)

553 recognizes two types of non-legislative rules: policy statements and interpretive rules.

Benefits of non-legislative rules:Efficient, easy to inform public, can issue guidance to agency employees.

Legal issues that can arise:

1. APA does impose some requirements, and agency might fail to meet them (not as strict as notice &comment, but still some substantive requirements.

2. Party might challenge the rule by saying it is really legislative and should have gone through notice andcomment.

3. What are the consequences when the public relies on the non-legislative rules, and then the governmentlater refuses to follow it?

552(a)(1)(D) FOIA requires publication in the FR of statements of general policy or interpretations of generalapplicability formulated and adopted by the agency.

552 person may not be bound if the statement was not published in the FR, unless the person had actual andtimely notice.

How to tell the difference between legislative and non-legislative rules?Often hard to do, and the agency will try to claim that something is non-legislative.

POLICY STATEMENTS


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Issued to advise the public prospectively of the manner in which the agency proposes to exercise a discretionarypower in subsequent adjudication or rulemaking.Does not purport to interpret an existing duty in a reg. or statute.

So courts use the binding effect test to tell the difference between rules and policy statements

Does the statement impose a new duty or merely announcethe intention to impose a new duty at some future time?

INTERPRETIVE RULES (NON-LEGISLATIVE)

INTERPRETIVE RULEInterprets or clarifies the nature of the duties previously established by an agencys statutory mandate or by aregulation promulgated by the agency.

Pros: quick guidance to public, flexible for agency.Cons: lack of consistency, may have different standards in different areas.

Check: when does a rule merely interpret another rule, and when is it just adding/changing the old rule withoutgoing through the formal process?

Duty of the agency? ( 553)three main questions

1. What process is needed to promulgate an interpretive rule? (553: publication in FR, but no notice orcomment) simpler, cheaper, quicker process than normal 553 rules.

2. How binding are they? May the agency change them? Can they be enforced against the parties?3. How much weight does a court give? How much deference?

American Mining Congress v. Mine Safety & Health Administration (p. 357)Four tests for whether its a legislative rule:

1. Look at agencys intent (in our problem, they probably didnt intend to make it a rule. But intent is tricky,and the agency may be deceptive about their intentions)

2. In the absence of the interpretive rule, can they enforce any standard? If the statute is very specific, then thememo is likely an interpretive rule. But if the statute is vague and broad, and the memo is more specific,then it might be more legislative.

3. Was it published in the federal register? (but 552 requires publication of interpretive rules in the FR! Nota good criteria)

4. Does it amend the existing legislative rule?

Basically, intent and whether the rule adds a new duty are the key factors.

ESTOPPEL

What can you do if you rely on policy statements, interpretive rules, or statements by lowerlevel employees of the agency? Is the agency bound?Is the agency bound by the misstatement of their employee?

Was your reliance reasonable? Should you have sought out a higher level to ask your question of? Should an agency be bound by the statements of the low-level employees? Tension between feelings of fairness toward the party who relied on the misrepresentation, and the fairness

to the agency to not be stuck by the misstatement.

Heckler v. Community Health Services (p. 374)


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Governments intermediary approved a claim, money used to provide services for the poor. Government now wantsthe $70,000 back. Court says tough! There would not even be estoppel against a private party in this situation theybasically got a no-interest loan, so the court says there was no detriment. Was it reasonable though?

2 elements of estoppel1. change in position to detriment

2. reliance was reasonable includes the obligation to find out on your own! When the issue iscomplicated, you have a duty to not just take a lower-level officials word for it.

Oral AdviceWhy is that less reliable than a written piece of advice? Statute of Frauds issues come up.

Who gives the adviceLower-level manager is less reliable. Go to the highest level you can.

Office of Personnel Management v. Richmond (p. 379)Federal Crop Ins. v. Merrill is cited; farmer called to ask about seeding his crop, and the agent said that seedinghad nothing to do with claims for loss. Now when crops are destroyed, farmer isnt able to get coverage despite hisdetrimental reliance. If the insurance had been a private company, he might have prevailed. But when the agency isthe government, then theres a better argument not to allow lower agents misstatements to become US policy.

YOU RELY ON INTERPRETIVE RULES AT YOUR PERIL! And might still be out of luck if you ask a loweragent.

Get things in writing Get the approval of the highest level you can Line up others who have been told the same advice.

Basic rule: ALMOST NEVER is the government estopped by statements from lower agents. (Supreme Court keepsthe door open, though, so estoppel might be allowed if the right case comes up).

JUDICIAL DEFERENCE

We know that Chevron is the proper level of deference to give to regular agency rules.

But what deference is due to interpretive rules?

Skidmore v. Swift & Co (p. 387)Interpretive rules are due less deference. Court isnt bound by agencys statements:See top of p. 389 court looks at agencies experience, logical consistency, validity of reasoning, etc.Rulings, interpretations, and opinions of admin of Act, while not controlling upon the courts by reason of authority,do not constitute a body o explicitly and informed judgment to which the courts and litigants may properly resort forguidance. weight of judgment to which courts and litigants may thoroughness evidence in consideration ofvalidating of reasonableness

US. v MEADnot Chevron deference - Skidmore persuasiveness

BARHNART V. WALTONclarifies Meadwhether a court should give deference depends in significant part upon interpretive method used and nature ofquestion at issue

1. interstitial nature of legal question2. related agency expertise3. importance of question to administration of the statute4. complexity of administration and5. careful consideration agency given to question


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all indicate chevron provides appropriate legal lens through which review of interpretation

CHART!


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REVIEWABILITY

STANDING

PRESUMPTION OF REVIEWABILITY 702 - who? 704 - what?Exceptions: 701(b)(1), (a)(1), (a)(2); 704; not ripe

Agency order obstacle obstacle judicial review.

Why does have to jump hurdles like standing, ripeness, exhaustion of remedies, etc., before they can be heard?

efficiency of court system constitutional limitations on cases and controversies protects separation of powerscourt wont act like legislature by giving advisory opinions better prepared/dedicated s Competency keeps judges out of highly technical areas that require agency expertise Legitimacy keeps courts out of policy making

o Courts need a concrete set of facts

o a real dispute between parties who might truly be impacted

o a finished dispute with a final agency action

Hurdles to overcome: (p. 403)

1. Does court have jurisdiction? must have standing Statutory grant of jurisdiction to that particular court

2. must state a cause of action must be a statute giving a judicially-enforceable right. Some statutes create both jurisdiction and a cause of action.

3. Four requirements established by APA: 701(a) Appeal must not be excluded from review (preclusion, committed to agency discretion) 702 Cause of action limited to those suffering legal wrongs

o

Are you in the zone of interests? 704 Only final agency action is reviewable. 704 must have exhausted administrative remedies.

4. Case/Issue must be ripe maybe pre-enforcement review is not available.

StandingConstitutional basis comes from the judicial limits in Article III courts shall only hear cases and controversies.(see p. 407)

Elements of Standing1. Injury in fact (used to be only economic/legal wrongs, now includes aesthetic, recreational injuries as well) mustbe concrete and particularized, and actual and imminent, not conjectural2. caused by the alleged illegal action fairly traceable to the action

3. would a favorable court decision likely remedy or avoid that action?standing in own right OR

Organizational standingGroups like Sierra Club or World Wildlife Fund can bring suit if:

1. one of its members would have standing to bring the suit individually2. lawsuit relates to purpose of the organization - germane to purpose3. neither the claim asserted nor the relief requested requires the participation of individual members (must be

for injunctive/declaratory relief, not damages).


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Lujan (p. 414)Plurality opinion:

Judges Number Opinion

Scalia, Thomas,Rehnquist, White

4 NO injury was sustained to

Kennedy, Souter 2 Wanted a better showing of injury if had actually bought plane tickets, thatwould have been enough for them.

Stevens 1 had standing; had an injury that could be redressed by the court, but wouldhave lost on merits.

Blackmun, OConnor 2 would have won on merits

So here we have 6 votes against standing for the s, but 2 of the votes are fairly soft on the requirements.

*** Judges can raise question of standing sua sponte.

Mass v. EPA: as a state: on behalf of citizens, lost property, health and welfare; Causation: EPA concl.greenhouse gas causes global warming; redress ability

summers v. earth island institute: no standing because to broad of area of forest

CAUSE OF ACTION

zones of interest part of the standing analysis PRUDENTIAL Standing

702: statutory and non-statutory review

Person who suffers a legal wrong entitled to review. Can be adversely affected or aggrieved by the action of an agency within the meaning of a relevant

statute

Relevant statute: was it enacted with this type of in mind? Intended to protect ?

Air Courier Conference of America v. APWU, ALF-CIO (p. 432)NO CofA because the statute not intended to protect their jobs. Only intended to help the post office, not theeconomic welfare of the postal workers.HARDER STANDARD: Makes a tighter zone than Clark if Congress didnt mention the postal

workers or intend to protect them, youre outside the zone.

Natl Credit Union Admin. v. First Natl Bank & Trust Co. (p. 435)Statute limits CU benefits to those who are employees or related by common bond of occupation.Regulation interprets the common bond language to permit the credit union to extend the credit services broadly,to permit credit unions to be composed of multiple unrelated employee groups.

Who has standing to challenge it? Another bank that is pissed that these credit unions are gettingcompetitive.

Court splits 5/4 about whether they have standing.


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Does the statute confer benefits on bankers? Held: standing allowed because bankers were in the zone of interest.But both majority and minority say that there was no intent to protect other banks from competition by credit unions.

p. 436: interest sought to be protected must be arguably within the zone of interests to be protected by the statute.

Clark case cited in this chapter (p. 439).Statute authorized control of currencyzone of interest test is not terribly rigorous.EASY STANDARD: Only people who are excluded from standing are people who are somarginally related to the statute that it cannot reasonably be assumed that Congressintended to permit the suit.

p. 705: Association of Data Processing:judicial interpretation of second part of 702.1. injury in fact2. be in the zone of interest

This doctrine is troublesomeenvironmentalists seem to lose but bankers/economic interests get standingsometimes.

PRECLUSION; COMMITTED TO AGENCY DISCRETION

Preclusion of Judicial Review

Statutory restrictions on a courts jurisdiction ( 701(a)(1) If Congress precludes review, APA does not providean independent basis for jurisdiction).

Abbot Labs v. Gardner (p. 443)FDA regs: have to put generic name after brand name on all medicine labels.One way to get review: wait until agency tries to enforce the action against you.Here: pre-enforcement review. Is judicial review precluded?

Strong presumption of judicial review

If Congress says nothing, then review is available. Will only cut off review if Congress says it in a clear and convincing way in an explicitstatutory provision must have a persuasive showing that Congress intendedpreclusion.

Why do courts construe this so narrowly? Courts feel pretty strongly that they should have the right toreview government action.

Block v. Community Nutrition Institute (p. 446)Milk market would have low prices if unlimited competition among farmers and processors. Here, the price is fixedby the Secretary of Agriculture under the Agricultural Marketing Agreement Act. Farmers and producers agree onthe price, and the Secretary approves the order.

Cartel members have to prevent members from cheating by lowering their prices. A way to cheat here is to

reconstitute powdered milk and sell that cheaper Class II product for Class I prices. So the rule is that reconstitutedmilk has to be sold at the higher prices but now theres no cheap milk available for poor people so the consumergroup is mad.

A problem here is that the farmers and producers wont challenge their own structure. So if consumers cant do it,who can?

Held: Congress intended to preclude consumer challenges to the Secretarys market orders. Court of Appeals usedthe clear and convincing standard, but OConnor said that the presumption of review is overcome when


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congressional intent is fairly discernible from the statutory scheme. This would disrupt thecomplex and delicate scheme.

How has Abbot Labs been altered?New test: Is Congressional intent to preclude fairly discernible from the statutory scheme. More of a mushystandard.

Community Nutrition standard still retains the presumption of review, and there still has to be something inthe statute or scheme to indicate Congress wanted to preclude review.

Committed to Agency Discretion

701(a)(2) also excludes agency action from review to the extent that an issue is committed to agency discretionby law.

(So some parts can be reviewed and some are unreviewable).

706(2)(a) courts can review for abuse of discretion. How does this fit into 701(a)(2)? Was this crappystatutory drafting?

Heckler v. Chaney (p. 451)Death-row inmates about to be executed by lethal injection. Worried that the drugs used have never been tested tomake sure theyre safe and effective for this use. Petitioned the FDA to investigate this drug for this particular use.FDA refuses to act worried they lack jurisdiction, but they have the discretion to pursue certain enforcement issuesand choose not to do so here.

Has this been committed to agency discretion to decide not to pursue enforcement?

Look to the agencys statute: does it give guidelines for how the agency is supposedto act are there meaningful guidelines and standards? Overton park is there nolaw to apply?

If not, it has been committed to agency discretion and the court wont review it at all.

Can you review if the agency takes a bribe, or has a horrible, untenable position? Court says that review would beappropriate in some circumstances, if there was an illegal act or constitutional rights involved.

Why does the court reverse the presumption of review?

There is no overt act here, only inaction Traditionally more deference in this area Are they still hurting people with their inaction?

Can still use EP/DP standards to review.

Webster v. Doe (p. 457)Can fire someone when you deem its in the national interest this is a HIGHLY discretionary standard.Scalias dissent: doesnt like the black-letter rule of no law to apply. Thinks the analysis is more complicated

and that it shouldnt be the only factor to apply. He believes that commitment to agency discretion circle is largerthan the no law to apply circle. He doesnt find this formula very helpful.

EXHAUSTION

Three things impact timing of judicial review:1. Final agency action2. Exhaustion of remedies3. Ripe for review


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Finality

Is it final?

Has the agency made a final decision, or can it change its mind? Is it stable and authoritative?

Taylor-Callahan-Coleman Counties District Adult Probation v. Dole (p. 469)Wage and Hour Administrator says that probation officer is an administrative, executive, or professionalemployee, not entitled to overtime pay, but a DOL opinion letter said otherwise. DOL has stated that advisoryinterpretations from the Administrator are just for guidance but DOL doesnt have to be followed. This was not afinal DOL action, so under 704 there can be no review.

The letters in this case were not specifically tailored to the district they had no direct or immediate impact on thedistrict, and did not require immediate compliance by the district. See p. 472.

Franklin v. MA (p. 467)

Authoritative and Final (not that it wont change, but that it is the consummation of the agencydecision making process, e.g. theres been closure)

Impact on plaintiffis sufficiently direct and immediate and has a direct effect on day-to-day

business. Is the agency just stating an opinion or is it commanding, dictating, etc., which is not just advice.Tone of the document is important to judges.

Appalachian Power Co. v. EPA (p. 473)Lower-level guidance notices held to be final, because they reflect a settled agency position that carries legalconsequences for people who fail to comply.

How to distinguish Appalachian fromTaylor?

Person who signed it? (doesnt seem to be relevant in predicting the result here. In Appalachian, lowlevel persons signed the final guidance notes).

Impact on parties different? Is it binding? See Appalachian p. 474. If the agency is changing its mind, does that affect it? Doesnt seem to have much bearing on the

distinction.

Is the agency doing an end-run around rule-making processes, and creating a comprehensive schemeusing informal opinion letters?

Exhaustion of Remedies

Lots of exceptions created to soften this doctrine. (see p. 480). See section 534 of WAPA also, which listsexceptions.

Under 704, you can go from ALJ to an appeal in court.

mccarthy v. madigan

darby v. cisneros

RIPENESS

Why have a ripeness doctrine?

Courts want settled facts Dont want to be interfering in something they dont have expertise about. Dont want to be adjudicating abstract issues want the issue to arise in a concrete factual context. Dont want advisory opinions.


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Documents

Final Admin Outline