Law... · Web viewCement Kiln Recycling Coal v EA (DC Cir) Court must examine whether the agency action binds private parties or the agency itself with the force of law

ADMINISTRATIVE LAW CASE LIST Subject Rule of Law/Policy Case Holding/Dissent

Rulemaking § 553- informal rulemaking § 556-57 formal rulemaking (rarely happens)Non-legislative rules exempt from § 553 rulemaking

§ 551(4) rule means the whole or part of an agency sttement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…

Bi-Metallic- agency agreed to make a broad evaluation increase

APA- does not tell agency when to use rulemaking/adjudication. Rulemaking is appropriate when there is across the board action that affects a large # of people in the same way, and this decision is based on legislative facts. Rulemaking is more cost efficient, and there is political accountability.

Adjudication §§ 554, 556-57- formal

adjudication proceduresAPA doesn’t have informal adjudication procedures but § 555 applies to all adjudications

§ 551(7) adjudication means agency process for the formulation of an order, which is (6) the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including

Londer: the city assessed a special tax for a neighborhood without an opportunity for a hearing.

If an action should have proceeded as an adjudication, if the agency pursues rulemaking instead, it may violate their due process. Adjudication is appropriate when the agency decision affects a few people and they are affected uniquely and on individualized grounds, and the decision is based on judicial facts. This argument is a difficult one to make however, See South Terminal Corp. v EPA.

Separation of Powers Independent agency: one that is not located within a department

Independent establishment- one that is insulated from president because can only remove “for cause”

FCC v Fox Television Stations: the FCC is both an independent agency AND an independent establishment

Justice Scalia: There is no reason to magnify the separation of powers dilemma posed by the headless fourth brach- to do so would be a violation of the unitary executive by Article III judges. Justice Stevens: independent establishments/agencies like the FCC/FTC cannot be considered an arm/eye of the executive because

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do not serve at the president’s will. Better viewed as an agent for congress. (and for that reason should make it give a reason why it changes policy)

Justice Breyer- with Stevens, Souter & Ginsburg: An agency’s compartive freedom from ballot box control makes it all the more important that courts review its decision-making to assure compliance with applicable provisions of the law

Separation of powers Nondelegation doctrine: the constitution vests all the legislative power in Congress, thus it precludes the elegation of the legislative power to any other body. However, the constitution permits subsidiary lawmaking to be delegated to president/agencies, per the necessary & proper clause.

Schecter Poultry: one of the new deal cases, and one of the few that the court invalidated based on the nondelegation doctrine

The delegation of lawmaking authority must provide an intelligible principle to guide the executive.

Other potential problems are - a statute’s breadth of power- open – ended standards are of greater concern when such sweeping jurisdiction is involved, as opposed to a narrow field of administrative authority

-Recipient of authority- here, the recipient of some authority was a private party which is of concern because they are not accountable and self interest may lead to abuse - procedural sefeguards: The APA now provides this, so les of a concern, but in this case there was no APA yet to constrain agency- criminal sanctions: the creations of criminal

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offenses is problematic because that is a legislative function and because of the severe consequences

Separation of powers Nondelegation doctrine prevents courts from delegating legislative authority without an intelligible principle. To find such a principle, courts look to the purposes of the statute to provide content for open-ended standards. Another method is to rely on the history and regulatory context to find the necessary standards. By interpreting the statutes to find a standard, the cout effectively constrins agency discretion

Whitman v American Trucking Associations: where the court thought it better to interpret the statute narrowly then find a non-delegation violation

Bicameralism & Presentment- Article I § 7, cl 2 & 3

INS v Chadha: legislative veto violates bicameralism and presentment

Clinton v City of new york: line item veto violates bicameralism and presentment

Separation of powers- judicial Article III, § 1 vests judicial

power in one supreme court and in such inferior courts as the congress may from time to time ordain and establish. These judges hold their officiers for good behavior and compensation cannot diminish while in office. Adiministrative law judges, on the other hand, lack life tenure and salary protections thus they cannot be Article III judges, yet their inquiry into facts and application of the facts to the law is a instrinsically judicial power.

Commodity Futures Trading Comm’n v Schor: upholding administrative adjudication of common law counterclaims

Schor Test(1) the extent to which

the essential attributes of judicial power are reserved to Art. III, and conversely the extent to which the non-Article III judges exercise jurisdction/powers normally reserved for Article III court

(2) Character of the right – origins and importance

(3) Congress’ reasons for delegating adjudicatory authority to an agency, rather than to

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the courtsBut see granfinanciera- implying public right= per se constitutional

Separation of powers- judicial power

7th Amendment provides the right to a jury in suits at common law, which are those actions that would have a common law right to a jury trial in 1789. The 7th amendment will never be violated in administrative adjudications regarding a public right.

Granfinanciera: finding that actions to set aside fraudulent conveyances of property were private rights subject to the 7th amendment. Also redefined public rights

This case seems to say that public rights adjudication by agencies is per se permissible (unlike schor where its only one factor). Additionally, public rights definition was broadened to include some rights arising between private parties. Thus, in cases not involving the fed. Govt, the crucial question is whether congress created a seemingly private right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by Article III judiciary (but note- found that it was a private right, so is this dicta?). Congress cannot however, convert a private right to a public right by making it staturory.

Separation of powers- executive power

Article II § 1 of the Consitution provides that the executive power shall be vested in a President and contemplates the practical necessity of officers of the US who will perform executive functions within the executive branch. The idea is that the President oversees a single unitary executive, and thus he must have complete control over all components of the execution of law. Moreover, Article II § 3 dictates that the President shall take care that the laws be faithfully executed. This requires that the President, at the very

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least, have the power to remove officials for cause.

Separation of powers- exeucitve power- Appointments clause

Article II, § 2, cl. 2 provides that the President shall nominate, and by and with the advice and consent of senate, shall appoint…all other officers of the US whose appointments” are not provided for by the constitution. Moreover, the Congress may vest the appointment power for of such inferior officers as they think proper, in the president alone, the courts of law, or in the heads of departments. Thus, any appointee exercising significant authority pursuant to the laws of the US as an officer of the US must be appointed in the manner prescribe by Article II

Buckley v Valeo: FEC members were appointed in a different manner and given enforcement and rulemaking powers- finding a violation the court stripped them of this power and allowed them only to maintain investigatory and public information functions

Three issues raised by the appointments clause is

(1) whether the official is an officer of the US as to be subject to the clause

(2) whether the officer is a principal officer who must be appointed by the president and

(3) Whether the particular means chosen for the appointment of an inferior officer is proper


Morrisson v Olson: Whether an Officer is principal v inferior turns on

(1) Whether tenure is limited

(2) Whether jurisdiction is limited

(3) Whether removable by an officer under the direct control of the president

(4) Whether the officer has limited duties


Morrisson v Edmonds Whether an officer is an inferior officer is determined by whether he is closely supervised

(NOTE- note clear whether this is the new test- or whether still olson- so do both)


Court of law: any court that exercises the judicial power of the united states even if it

Freytag v CIR: upholding appointments of

“court of law”, allowed to be vested with appointment authority of

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is not specifically referenced in the constitution

Head of department: refers only to a part or division of the executive government as the department of state, treasury etc. expressly created and given the name of a department by congress

special trial judges by the CJ of the tax court because the court is a court of law – and the court cannot be a department because it is not called department

inferior officers pursuant to the constitution


Head of a department: Art. II of the constitution provides that an inferior officer may be appointed by a head of a department. Under Freytag v Cir a head of a department was defined as a part or division of the executive government such as the department of state, which is expressly created and given the name of a department by congress. Recently, however, the court has revisited it’s definition to include freestanding agencies-

Free Enterprise Fund v Public Accounting Oversight Board: finding that the SEC commissioners are the “head of a department.”

A department is a freestanding component of the executive branch not subordinate to or contained within any other such component. The several commissioners of such component, not the chairmen, are the “head of this department,”

Separation of powers- exeucitve power- Supervise

Executive interference- if the executive interferes to an extent that the agency is not relying on its expertise, the court canot defer)

New York v Reily: finding that the EPA was not improperly relying on the opinion of the President’s Council on Competitiveness

Separation of Powers - Removal

Removal power is arguably one of the most important powers held by the President.

Myers: the president has inherent power to remove executive officials, invalidating a statutory provision requiring senate consent for the removal of a postmaster from office (but see Humphreys executor)

Separation of Powers - Removal

Humphreys Executor: congress may restrict presidential removal powers when the official is quasi-

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legislative, quasi-judicial

Reviewing Agency Decisions

The reasons requirement: Agency decisions can only be sustained on the basis of the reasons given by the agency. The court may not uphold the agency’s decision on other grounds if the reasons given are inadequate, as the court espoused in SEC v Chenery. However, there is some conflict with the reasons requirement and the harmless error principle.

Allen v Barnhart: cautioning against harmless error because it may violate the reasons requirement.

Harmless error may occur when an error is so minor or technical that it does not undermine confidence in the determination of the case. However, court should be very cautious. Should probably only apply in an exceptional circumstance where the ALJ at least considered the material but just not properly and no reasonable admin. Fact finder could have resolved the factual matter in any other way

Reviewing Agency decisions

Hard look review: The public was concerned with agency capture and the insufficiency of safeguards presented by notice & comment, and the court responded by imposing additional procedures on the agency that were not required by the statute. However, the court reversed this approach and rejected the assumption that more procedures would produce a better decision in Vermont yankee.

Ethyl Corp v EPA: Judge Bazlelon: courts should ensure that agency procedures give a full airing of the issues in order to ensure good substantive decisions. This is particularly true because of technical matters espoused.

Judge Leventhal: hard look approach means that the court must examine closely the decision of the agency and must affirm if decision is rational even if we would have decided otherwise

Reviewing Agencies Vermont Yankee (1978)

Courts have no authority to order procedures beyond those required by statute or due process.

Judicial Review- Substantial Evidence

Substantial Evidence applies to formal rulemaking and formal adjudication. Thus, under the APA, any time § 556 or 557 are applicable. However, the organic statute may also require substantial evidence application.

Universal Camera Corp. v NLRB

Substantial evidence is more than a mere scintilla and is such evidence as a reasonable mind might accept as adequate to support a conclusion.

Judicial Review- substantial evidence

While substantial evidence standard is applied to facts, parties challenging agency

Center Construction Co. v NLRB: finding that the agency’s decision

Testimonial inference: based on the witness’ demeanor such as voice

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findings cannot simply re-argue the facts. Rather, effective challenges under the substantial evidence standard usually identify particular gaps or flaws in the agency explanations. One potential flaw is when an agency finds a fact that is at odds with the ALJ and it is based on a testimonial inference

was not based on substantial evidence because witness testified in front of the ALJ and the findings turned mostly on witness credibility

fluctuation, long pauses, nervousness etc.

Derivative inference: based on other aspects of witness testimony, such as internal inconsistencies in the substance of the testimony. (dissent in this case believes that the issue was not based on testimonial inference but rather derivative, i.e. shows judges may differ on which it is)

Judicial Review- Statutory Interpretation

While the APA seems to provide that courts should apply de novo review of an agency’s resolution of legal questions such as the meaning of the statute, congress’ delegation of authority to the agency and the agency’s expertise in the subject of the technical statute weigh in favor of deference.

Chevron v Natural Res. Def. Council: adopting a 2 step process for review of an agency’s statutory construction . The issue here was the term “stationary source” under the CAA included multiple individual sources or the entire plant.

To determine whether deference is due:

(1) Whether congress has directly spoken to the precise question at issue. If the intent of congress is clear, that is the end of the matter

(2) If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute


While textualists would stop statutory interpretation at its plain meaning, like Justice Scalia, others would use traditional tools of statutory interpretation such expressio tool and legislative history. Expressio tool interprets a statute’s explicit direction for something in one provision and its absence in a parallel provision as implying congressional intent to negate intent for x in the second

Alliance for Community Media v FCC: Court rejected the argument that because congress specifically include deadlines in one provisions that it did not want a deadline in another provisiosn. Instead, it meant to leave the deadline up to the agency. Moreover, that congress specifically

Step 1 of chevron permits rules of statutory construction such as reference to expressio tool and legislative history

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provision. Legislative history, on the other hand is useful because if congress expressly contemplated something and then did not include it in the statute, it may be implied that congress intended to reject it.

contemplated and did not include something in legis. History means they expressly reject it.


Step 2 – At step two, the court is extremely deferential. The court will only reverse the agency’s interpretation if it goes beyond the scope of whatever ambiguity the statute contained.

City of Chicago v Environmental Def. Fund: reversing the agency interpretation under step 2 because it went beyond the scope of ambiguity

NOTE- this case leaves unclear whether if an agency interpretation within the scope of ambiguity, may nevertheless be unreasonable


NLRB v Hearst: NLRB made an interpretation of “employees” in the statute during an adjudication. The court reviewing said that such issue is a mixed question of law and fact (if law only= de novo)

For mixed question of law and fact there is some deference due to expert agency. The court must inquire whether agency’s application of the statutory term in a particular context has warrant in the record and a reasonable basis in law


Agency interpretations through informal rulings may require chevron analysis, or Skidmore, which was the pre-chevron test for deference to statutory interpretation.

Skidmore v Swift & Co.: (less deferential, agency opponents want this)

The weight of the agency’s judgment in a particular case will depend upon (1) The thoroughness

evident in its consideration

(2) The validity of its reasoning

(3) The consistency with earlier and later pronouncements

(4) All those factors which give it power to persuade, if lacking power to control

Statutory Interpretation- What test applies?

Interpretations such as those in opinion letters, like policy statements, manuals, enforcement guidelines, all of which lack the force of law, do not warrant chevron deference. Instead, skidmore is applied.

Christensen v Harris County: DOL interpreted a statute in an opinion letter.

Scalia concurrence: Chevron applies not only to agency regulations but to authoritative agency positions set forth in a variety of other formats. Justice Breyer dissent: chevron should apply


Step Zero Test: Mead proposes that chevron deference is appropriate if:(1) Congress delegated

United States v Mead Corp.: where the customs office issued a ruling letter which

Justice scalia dissent: very disappointed/upset that court is basically displacing chevron

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authority to the agency generally to make rules carrying the force of law , (2) The agency’s interpretations claiming deference was promulgated in the exercise of that authority

provides guidance on the interptation or application of customs laws.


Maybe, New Step Zero Test: (1) The interstitial nature

of the legal question(2) The related expertise

of the agency(3) The importance of the

question to administration of the statute

(4) The complexity of that administration

(5) The careful consideration the Agency has given the question over a long period of time

Barnhart v Whalton: interpreting inability to require the inability to last for 12 months and established the interpretation in formal regulations

.Justice Scalia dissent: thinks it is irrelevant how “longstanding” the agency’s interpretation is. Chevron represents the view that there are many correct interpretations and the agency is free to move from one to another


MAYBE new step zero test- dicta b/c notice & comment . The main issue is whether congress would have intended, and expected, courts to treat an agency’s rule, regulation, application of a statute, or other agency action as within or outside its delegation to the agency of gap filling authority. The court will assume congress meant to defer if:

(1) Where an agency rule sets forth important individual rights and duties

(2) Where the agency focuses fully and directly upon the issue

(3) Where the agency uses full notice and comment procedures to promulgate a rule

(4) Where the resulting rule falls within the statutory grant of authority

Long Island Care

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(5) Where the rule itself is reasonable


Revenue rulings do not require chevron deference under the Mead test, thus Skidmore is appropriate.

Aeroquip Vickers v commissioner of Internal Revenue (6th cir): when promulgating revenue rulings, the IRS does not invoke its authority to make rules with the force of law

Statutory Interpretation- de NOVO

Formal adjudications (not APA)- Chevron does not apply. Instead, the interpretation is a pure question of statutory construction for the courts to decide – pure questions of law then imply application of Hearst. (de novo)

INS v Cardozo Fonesca: Justice Stevens: argued for the application of Cardozo-fonesca to rulemaking too, thus overriding chevron.

Judicial Review- Arbitrary & capricious

§ 706(2) of the APA directs reviewing courts to hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Overton Park Arbitrary & Capricious review requires the reviewing court to consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. The inquiry into these facts is to be searching and careful. (NOTE- agency opponent wants to start with this, then move on to state farm, not very deferential)


The Agency decision is arbitrary & capricious if

(1) it has relied on factors which congress has not intended it to consider

(2) Agency entirely failed to consider an important aspect of the problem

(3) The agency offered an explanation of its decision that runs

State Farm (1983- after Baltimore)

NOTE- agency opponent should identify ways agency has done one of these factors

Agency advocate should argue agency has not done any of these

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counter to the evidence before the agency

(4) The agency decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise


Reviewing courts should remember that agency’s are acting within an area of expertise. The courts only task is to determine whether the commission has considered the relevant factors and articulated a rational connection between the facts found and the choice made.

Baltimore Gas & Electric (1983): deferring to the commission, the court stressed that the issue was one on the frontiers of sciene and a reviewing court should be at its most deferential when reviewing scientific determinations


An agency decision that is not supported by an explanation will be considered arbitrary & capricious. The explanation need not be absolutely certain, nor is precision required. Only a reasonable explanation to support decisions/determinations.

Bluewater Network v EPA: remanding to the EPOA to clarify its statutory and evindentiary basis of the assumptions and analysis and evidence underlying the decisions


New England Health Care Employees v NLRB: Agency’s decision was arbitrary & capricious because failed to consider another option (state farm factors).

NOTE- some courts will view inferences that agency’s make as factual- and thus subject to substantial evidence, but here, the court views it as part of its reasoning- so it is part of arbitrary & capricious

Rulemaking Rulemaking authority must be delegated to the agencies by Congress because agencies have no inherent authority to promulgate rules. Historically, courts required the authority to come from substantive provisions rather than a general grant of rulemaking authority. (Massachusettes v EPA). Under current law, there is little doubt, however,

National Petroleum Refiners: construing general grants of rulemaking authority as confined to establishing procedures for implementing adjudication or other agency responsibilities.

See also Dupont

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that a general grant of authority to implement statutory provisions by regulation includes authority to make substantive rules, unless the peculiar circumstances of a given provision suggest otherwise.

interpreting even a more particularized delegation of rtulemakin authority broadly as to uphold the agency rulemaking authority

Implied authority- Morton v Ruiz: recognizing the practical need to make rules to fill any gap left, implicitly or explicitly, by congress. (see chevron)

Rulemaking- APA constraints- retroactivity

APA limits rulemaking authority by 2 means. First, the rule must fit into the APA’s definition of a rule. The definition is exceedingly broad, however, a common difficulty raised is the retroactive effect of a rule as conflicting with the APA’s definition of a rule as have a future effect. Thus, a rule may only be retroactive if the organic statute grants express retroactive rulemaking authority.

Bowen v Georgetown Univ Hospital

A general grant of rulemaking authority does not include the authority to promulgate rules with retroactive application.

Rulemaking-APA- constraints-retroactivity v adjudication

Second, the APA allows the decision to proceed by rules to be challenged as arbitrary & capricious under § 706(2)(A). Given that the decision to proceed by rule is a discretionary matter and there are obvious policy reasons to pursue a rule, such as efficiency and clarity, it is a difficult challenge to prove successfully that the choice was arbitrary & capricious.

American Hospital v LRB: rejecting the challenge to NLRB rulemaking because adjudication better suited to individualized consideration.

See also Bowen: Scalia said that perhaps a circumstance where a regulation has secondary retroactive effects as to upset reliance interests, then the rule may be arbitrary & capricious.

Rulemaking- Rulemaking petitions

§ 553(e) of the APA requires an agency to give an interested person the right to

Massachusetts v EPA: Mass. Brought an action against the EPA

When a rulemaking petition is filed, the agency must offer

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petition for the issuance, amendment, or repeal of a rule.

for not promulgating rules addressing climate change. EPA argued that it did not have authority to do so, and even if it did, it was not the right time t address it. EPA didn’t explain sufficiently why it didin’t promulgate the rule, thus decision not to is arbitrary & capricious

reasoned explanation for its refusal to grant the petition.

Scalia, Thomas & Alito dissent: The EPA did give adequate reasons why they didn’t want to make the rule, and dissenters have no idea what else the court can possibly expect.

**SEE ALSO- Scalia thought should have deferred to EPA’s interpretation of air pollutant, even though the EPA did not exercise its authority to adopt rules (so skidmore should apply)

Rulemaking- Rulemaking Petition – Reviewability

Denial of a petition is considered final agency action for purposes of reviewability. However, if the agency merely refuses to answer the petition, there is no final agency action. The D.C Circuit court in Telecommunications Research and Action Ctr fashioned an exception to the finality requirement for unreasonably delays in agency response to a petition

Telecommunications Research & Action Center v FCC

Whether review is available (1) Time agencies take to

make decisions must be governed by a rule of reason

(2) Where congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason

(3) Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake

(4) The court should consider the effect of expediting delayed action on agency activities of a higher or completing priority

(5) The court should also

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take into account the nature and extent of the interests prejudiced by delay

(6) The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed

Rulemaking- Notice & Comment Rulemaking- Requirements

§ 553(b) of the APA provides several requirements for notice & comment rulemaking, if such rulemaking is triggered by the organic statute. The agency must provide general notice of the proposed rulemaking shall be published in the federal register, unless for some reason the individuals have actual notice because they were personally served. The notice must include (1) a statement of the time, place, and nature of a public rulemaking proceedings (2) reference to the legal authority under which the rule is proposed; and (3) wither the terms or substance of the proposed rule or a description of the subjects and issues involved. Finally, once notice is given, (c) the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.

Notice & Comment Rulemaking- Exceptions

§ 553 does not apply to non-legislative rules, such as (b)

Duquesne Light Company v EPA: where

Certain rulemaking requirements may be

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(A) interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest

public hearings were afforded at a state level, the court was willing to conclude that such procedures at a federal level would be unnecessary, thus there was a good cause exception to these procedures.

exempted under the good cause exception if they are unnecessary and impractical. For instance, if there is a state hearing and the testimony would be duplicative and the statute doesn’t specifically require a federal hearing, then this may reflect congressional intent to not require one. However, this is limited due process. If the effect looks more like an adjudication, then even if the action is couched as a rule, due process may require a hearing. (argument will usually fail, See South Terminal Corp. v EPA)

But see Environmental Def. Fund Inc. v EPA: denying the EPA’s invocation of the exception on the basis that it had a looming deadline.

The good cause exception is narrowly construed and only reluntantly countenanced. The justifications for the exception are not excape clauses to be used on a whim. Instead, the exception should be limited to emergencies.

Rulemaking- Notice § 556(b) notice must be sufficient to fairly apprise interested persons f the issues involved so that they may represent responsive data or arguments. This includes providing sufficient detail and rationale for the rule to permit interested parties to comment. Thus, if information relied on by the agency is not provided to the public, this violates “notice”.

Small Refiner Lead phase Down Task Force v EPA

There are 3 primary purposes of the notice requirement.(1) Improves quality of

agency rulemaking by ensuring that agency regulations will be tested by exposure to diverse public comment

(2) Notice & opportunity to be heard are essential to fairness of the affected parties

(3) The information enhances the quality of judicial review by providing documents of objections

Rulemaking- Notice- However, an agency may use Ober v. EPA: finding When information is

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Additional Information supplementary data, unavailable during the notice and comment period,t hat expands on and confirms information contained the proposed rulemaking and addresses alleged deficiencies in the pre-existing data, so long as no prejudice is shown. (Solite Corp. v. EPA). However, if the information relied upon is prejudicial, then the agency must extend the comment period and add the information to the record.

that the reliance on additional information was inappropriate.

solicited by third parties, as opposed to involving an internal assessment, this weighs in favor of adding the information. Moreover, if the additional information is critical or relied on by the agency, this weighs in favor of adding the information.

Rulemaking- opportunity to comment

§ 553© of the APA requires that agency allow submission of written comments, but allows the decision of whether to allow oral presentations at a hearing to agency discretion. The Court has interpreted this as requiring that the agency respond to public comments that are significant, in the basis and purpose tha accompanies the final rule

Rulemaking- Statement of basis and purpose

§ 553© of the APA requires that agencies incorporation in the rules adopted a concise and general statement of their basis and purpose. This statement demonstrates whether the agency considered and responded to comments received. The statement must be sufficient to enable a reviewing court to see what major issues of policy were ventilated by the proceedings and why the agency reacted to them as it did.

Northeast Maryland Waste Disposal Authority v EPA: Industry petitioners challenged an EPA rule for failing to articulate a rationale for its decision. Court found that the EPA did not explain its decision at all, and was not one word mentioned about comments made by a variety of individuals (NOTE ABOUT JUDICIAL REVIEW- some statutes will require the person to raise the issue in the commenting period to get judicial review)

If a statement does not expressly incorporate anything or refer to interpreted parties or the courts to a specific document containgin the agency rationale, then the agency decision will not satisfy fundamental requirements. However, the court has two options. The court can either vacate the rule and require the agency to start the process again, or the court can remand to the agency to do provide a reasoned statement, but not vacate the rule. For example, if it seems as though the agency can explain the rule. Moreover, vacating the rule would be exceedingly

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disruptive.Rulemaking- A different rule than the one proposed

The general rule is that an agency must provide a new notice and opportunity for comment if the rule is not a logical outgrowth of the proposed rule, so that a party was not on notice that its interests were affected. However, if the rule is not substantially different, then it would be absurd to require an agency, who is supposed to rely on comments, to change a rule if it does learn something from the comments.

Chocholate Mfrs. Assn v Block

The test of whether new notice is required is whether the notice that was provided was sufficiently descriptive to provide interested parties with a fair opportunity to comment and to participate in the rulemaking. Thus, so long as the rule fairly apprises the public of the subjects and issues, then it satisfies the APA.

Rulemaking- notice & comment Ex parte comm..

While ex parte communications are prohibited under formal rulemaking and adjudications, they are not prohibited in notice and comment rulemaking. Still, courts have demonstrated concern that ex part communications may undermine the fairness of the process, prevent the testing of information through public comment, and prevent effective judicial review. One well established rule that was the product of a D.C. Circuit case, Sangamon Valley v. United States, prohibits ex parte communications where the rulemaking involves resolution of conflicting private claims to a valuable privilege.

Sierra Club v Costle: industry groups sought to emit sulfur dioxide @ a higher level while env. Groups wanted to be free from emissions at those levels.

Where agency action resembles judicial action, where it involves formal rulemaking, adjudication, or quasi adjudication among conflicting private claims to a valuable privilege, the insulation of the decision maker from ex parte contacts is justified by basic notions of due process to the parties involved. Some oral communication must be summarized in the record to preserve the integrity of the rulemaking docket. (NOTE- this is a hybrid statute, thus question of whether it applies to agency- Agency advocate: this has no bearing whatsoever, only to the clear air actContra-agency: these are the basic requirements- court referenced integrity of notice)

Rulemaking & NEPA Under the National Environmental Policy Act, every agency is required to prepare an environmental impact statement to accompany major actions with significant

Calvert Cliffs Coordinating Comm. V United States Atomic Energy Comm’n (p. 408)

NEPA has no substantive force, instead, it is only procedural requirements to ensure that the agency in reaching is decisions, will have available, and will carefully consider ,

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environmental effects. This statement forces agencies to consider the potential adverse environmental consequences of their actions.

detailed information considering environmental impact.

Rulemaking & Executive Orders Formal Rulemaking § 553© of the APA requires

the agency to follow §§ 556-57 if the organic statute requires the rule to be made on the record after an opportunity for a hearing. These procedures are relatively rare because they are very cumbersome. The agency must convene an oral hearing at which interested persons have the right to testify and cross examine witnesses. Moreover, matters must be based solely on information on the record, thus agencies are precluded from engaging in ex parte communications. Finally, it must issue findings of fact and conclusions of law to support its decsions. Moreover, § 557(d)(1) prohibits ex parte communications.

United States v Florida East Coast Ry. Co: (p 331): where the organic statute required a rule be made “after a hearing”; the court did not find that it triggered formal rulemaking.

For formal rulemaking to be triggered, the organic statute must call for a rule to be made “on the record after an opportunity for a hearing.”

Adjudication- policy making

Adjudication to make policy may be preferred over rulemaking because of its flexibility, immediacy, political insulation, and obtaining oral testimony. However, the party that is subject to adjudication may be placed at a disadvantage by being singled out for imposition of a new policy, of which it had no prior notice. Moreover, those parties not being singled out may object as well because of their lack to participate. These concerns

NLRB v APW Prod CO.( 433):

An adjudication does not become a rulemaking simply because the decision adopts a broad rule that will apply in future cases. As long as the agency makes law like a court would, instead of how a legislature would, it is subject to the procedures for adjudication, not rulemaking.

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are especially true given the agency incentive to choose a small and poorly finance defendant in its first adjudication to minimize obstacles. Of course, the agency must have the authority to adjudicate in the organic statute. Moreover, the APA constrins the agency’s ability to adjudicate in 3 ways. Firs, the adjudication is not appropriate if it fits the APA definition of a rule. Second, an agency’s decision to adopt policy through adjudication instead of rulemaking may be challenged as arbitrary and capricious under § 706(2)(A). An agency’s decision to proceed by adjudication will more likely be found to be arbitrary & capricious if it violates fundamental notions of fairness, retroactivity and due process.

NLRB v Guy Atkinson Co.: The agency had continuously taken the view that it did not have juridiction over the particular industry involved, but then suddenly in this case, it said it did have jurisdiction

Where the practical effect of the agency’s order that changes policy is to cause hardship to an individual, it is inappropriate it is not in proportion with the public ends to be accomplished.

Retroactivity is allowed if the resulting advancement of the statutory design outweighs the unfairness stemming from retroactivity. (SEC v Chenery)(NOTE- this is for when the action of the party occurred prior to the decision of the case rule the agency is trying to establish)

Retail, Wholesale & Dept. Store v NLRB: declining t apply the new case to the parties previous actions. He had conformed immediately when the new rule was announced, and had consistently discussed with his counsel to make sure in compliance with the law.

Whether the retroactive law is unfair under the chenery balancing test is an issue of law for the courts with no deference to agency decsion. Among the considerations are(1) Whether the

particular case is one of first impression

(2) Whether the new rule represents an abrupt departure from well established practice of merely attempts to fill a void in an unsettled area of law

(3) The extent to which the party against whom the new rule is applied relied on the former rule

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(4) The degree of the burden which a retroactive order imposes on a party

(5) The statutory interest in applying a new rule despite the reliance of the party on the old standard.

United Food & Commercial Workers v NLRB: the boards new rule merely clarifies an older rule.

The court has consistently been willing to approve retroactive application of rulings that do not represent an abrupt break with well settled policy but merely attempt to fill a void in an unsettled law

Fundamental fairness requires that similarly situated people be afforded similar treatment.

Yick wo v Hopkins (p 447)

An Agency has discretion to use adjudication to make a future effect

NLRB v Wyman Gordon: In excelsior, the board announced that it would require employers to furnish a lit to the board upon request, but did not apply it to the excelsior parties and instead said it would apply it in the future.

Plurality- The parties are required to comply with the agency’s order because it was ordered in the present case.

Black, Brennan & Marshall concur: A requirement may still be prospectively applied, even if not applied in that particular case, so long as all the requirements of adjudication are satisfied.

Douglas dissent: An agency is not adjudicating when it is making a rule to fit future cases

Harlan dissent: Announcing a rule and not applying it in the present case is not APA adjudication.

NLRB v Bell Aerospace Co. Division of Textron, Inc:

Agencies are not precluded from announcing new principles in an adjudicative proceeding

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and the choice between rulemaking and adjudication lies in the first instance within the agency’s discretion.

APA Adjudication- APA Adjudication is triggered by the organic statutes reference to adjudication to be determined “on the record after opportunity for an agency hearing.”(or similar language- not as rigid as formal rulemaking triggers) § 554 has several requirements, however the organic statute may supplement the APA requirements. Agencies must provide personal notice of any hearing to the affected parties including the time, place, nature of the hearing, and the matters of fact and law asserted. The agency must also allow the parties to submit consideration of facts, arguments, offers of settlement, proposals, when time, the nature of the proceeding, and the public interest permit.

Adjudication- Triggering APA

Formal adjudication is much more common because more organic statutes incorporate the necessary trigger language than for rulemaking. However, more recently the trend has been away from requiring formal adjudication in cases in which the organic statute does not explicitly trigger it. Under City of West Chicago v US Nuclear Regulatory Common (514), the statute is not expressly required to say “on the record,” but if the organic statute does not, then congress must clearly indicate its intent to trigger the formal hearing provisions of the APA.

Chemical Waste Management Inc. v EPA

Courts will apply the chevron test to an agency’s interpretation of whether the adjudication requires a hearing on the record.

Informal, non-APA Adjudication

The APA says very little about informal adjudications, thus

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they are largely derived from other sources of law. First, the organic statute may specify procedures that different from those in the APA> Second, agencies may adopt their own procedures by regulations and bound to adhere to those procedures until they change them by amending or repealing them. Third, the due process clause may impose minimum procedural requirements when agency adjudication derive affected parties of protected property or liberty interest.

Informal Adjudication Requirements

555(e) requires prompt notice of denial in whole or in part of a written application, petition, or other request, which mut be accompanied by a brief statement of the grounds for denial. Thus, only after the fact notice of a decision is required in an informal adjudication, implying that prior notice is not required. This, however, is constrained by due process. The agency has the power to issue a subpoena authorized by law, pursuant to APA § 556©(2). The right to a subpeana, however, is not absolute.

Drukker Communications v NLRB- if particularly adversarial and sanctions are involved, likely that they will allow subpoeana, if non adversarial as in SSA, prob will go against it.

Similar to a court of law, a subpoeana may be denied if its production would harm the pblic interest.

Formal Adjudication & ex parte communication

Ex parte communications are oral or written communication not on the public record with respect to which reasonable orior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding. These types of communications are expressly prohibited in

PATCO: An interested party, for purposes of § 557 is someone whose interest is greter than the general public

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formal adjudications, pursuant to § 554(d). An employee making the recommended decision or initial decisions may not (1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate or (2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions of an agency. Moreover, § 557 places added restrictions on ex parte communications . However, if ex parte communications do occur, they must be placed in the public record and § 551(d)(1)(D) authorizes the presiding officer to dismiss or deny the claim or interest of any person who makes an ex parte communication.

Rules & effect on Adjudication

When an agency uses a regulation to resolve an issue, it prevents the affected parties from litigating the issue in an agency adjudication. However, this approach may be inappropriate in circumstances in which the issues require individualized decision. In order to address this concern, agencies typically include a “safety valve” in its regulations allowing a waiver when particular factual circumstances warrant it.

Sykes v Apfel: Where a party’s facts/circumstances do not match the regulation, the agency may not rely on the regulation. Moreover, while ALJ’s are allowed to take notice of commonly acknowledged facts, it may only be technical or scientific facts that are within the agency’s expertise. If an ALJ is so qualified to take notice, he must give the party notice that he plans to do so,

Non-legislative rules & Adjudication

Allen v Barnhardt: Agency wanted to rely on SSR, which is an interpretive rule non-legislative

Where an agency wants to rely on a non-legislative rule, it must be crystal clear that the ruling is probative as to the issue. Moreover, when an agency is going to rely on a non-legislative rule,

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advanced notice should be given.

Adjudication & Due process

The Due Process clause of the Fifth & Fourteenth Amendment bar the federal government from depriving any person of life, liberty, or property, without due process of law.” Thus, at a minimum, due process requires notice and opportunity to be heard by an unbiased decisionmaker. First, the court must determine whether the agency has made the kind of decision that triggers procedural due process safeguards. If it is a classic rulemaking, then no problem, unless should have proceeded by an adjudication (longer v bimetallic). Second, whether the person alleging that his or her due process rights have been violated has an interest that is protected by the due process clause. (entitlement). Finally, was the process afforded by the government sufficient to provide the full and fair opportunity to protect that interest?(Step 2 ) Due process protects property and liberty. Although the traditional approach was to distinguish a right vs a privilege, the court has expanded its notion of property. A person must clearly have more than an abstract need or desire for the benefit, thus, he must have more than a unilateral expectation of it.

Goldberg: recognizing financial aid as an entitlement.

Legislature can specifically preclude application of due process by declining to create an entitlement to a government benefit.

(Step 3). Whether the process afforded by the government was sufficient to provide full and fair opportunity to protect the interest requires a 3 factor test. The effect of the test is

Mathews v Elridge (1) The private interest that will be affected by the official action

a. Potential deprivation @ issue- reliance on

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that where the importance of the interest times the increased accuracy is greater than the cost of additional procedures, due process requires additional procedures. Otheriwse, due process does not require the additional procedures

benefit- delay between post-depriv hearing and cut-off

b. Most imp. 2 least imp.: personal liberty, parental rights, welfare benefits, basic utilities, disability insurance benefits, employment

(2) The risk of an erroneous deprivation of such interest through the procedures used, and the probably value, if any, of additional or substitute procedural safeguards

a. Reliability & fairness of current procedure

b. If add’l procedures doesn’t increase accuracy= not required

(3) The governments interest including the function involved, the fiscal and administrative burden that the additional or substitute procedural requirement would entail

a. Cost alone not sufficient- but policy like efficiency, etc.

Informal Agency Action- § 555(e) is the only informal Overton Park: the

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Informal Adjudication agency adjudication requirement under the APA, which is to provide prompt notice

decision to build the highway was an “order”.

Informal Agency Action- Non-legislative Rules

§ 553(a)(A) exempts non-legislative rules from notice & comment procedures. These rules are interpretative rules, general statements of policy, or rules of agency organization, procedure or practice. The rationale for dispending with an opportunity to comment is that these kinds of rules do not affect the public in ways that make it necessary to provide a right of public participation in their adoption. These rules are still required to be published in the federal register, pursuant to § 552 and an unpublished rule cannot be enforced against a party unless they had actual notice. Although an agency’s characterization of a non-legislative rule is relevant, it is not determinant. Rather, courts have developed a variety of tests to distinguish a non-legislative, from a legislative rule.

America Hosp. Assn v Bowen

Courts distinguishment is not clear. Instead, the court itself as viewed the various approaches as fuzzy, tenuous, blurred, and baffling

Information Agency Action- Non-legislative Rules- Interpretive rules

Interpretive rules are a statement issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers. These rules are attractive to agencies because although the rule itself is not binding, the underlying statute it is interpreting is binding.

Miller v California (p 744)

An interpretive rule merely explains, but does not add to the substantive law that already exists in the form of a statute or legislative rule, whereas legislative rules impose obligations. (thus- simply “remind/explain”

Ballesteros v Ashcroft (id)

An interpretive rule must be derivable from the statute that it implements by a process fairly to be describes as interpretive. Thus if the agency is using statutory construction

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tools, the rule is likely to be regarded as interpretive. If on the other hand, the reasoning is policy based, then the rule is likely a legislative one.

American Mining Cong. V Mine Safety (id)

If the answer to any of the following questions is yes, then it is a legislative rule

(1) Whether in the absence of the rule at issue there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties

(2) Whether the agency has published the rule in the Code of Federal Regulation

(3) Whether the agency has explicitly invoked its general legislative authority (Part of mead test)

(4) Whether the rule effectively amends a prior legislative rule

When a rule is interpretative rather than legislative, it is invalid for not using notice and comment procedures.

American Medical Association v US

In order to determine whether a rule is legislative or interpretive, one must look beyond the source of power to promulgate the rule. Instead, the court must look @ whether the language is clarifying the underlying statutory language or if itsimposing

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additional duties. Informal Agency Action- Nonlegislative rules- Policy statement

A policy statement is issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power. It does not purpose to be an existing duty, rather just an announcement to adopt a new duty in the future adjudication/rulemaking. Courts usually focus on whether the rule is binding on the parties or the agency to determine whether it is exempt from notice and comment procedures.

Cement Kiln Recycling Coal v EA (DC Cir)

Court must examine whether the agency action binds private parties or the agency itself with the force of law. Thus, if the action either appears on its face to be binding, r is applied by the agency in a way that indivates it is binding, it may be binding! (See also- listing/delisting endangered species= rules not statement)

Informal Agency Action-Nonlegislative Rules- Rules of Agency practice & procdure

To ensure that agencies retain latitude in organizing their internal operations, § 553 of the APA exempts rules of agency practice and procedure from notice & comment procedures. Unlike police statements and interpretative rules, however, these rules may have binding effects, particularly when they provide procedural benefits for affected parties.

Batterton v Marshall Procedural rules cover agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which parties present themselves or their viewpoints to the agency. Thus, if a rule has a substantial impact on the conduct outside the proceeding itself, it is not non-legislative

American Hosp. Ass’n v Bowen (DC CIR)

Value judgment test: Even unambiguously procedural measures affect parties to some degree. Thus, the court’s approach is shifted from asking wehether there is a substantial impact to whether the agency action also encodes a substantive value judgment or puts a stamp of approval or disapproval on a given type of behavior

But see JEM broadcasting (DC CIR) overruling the value judgment test : denied JEMS argument that

Rules that embody a judgement about what mechanics and processes are most efficient are procedural. Thus,

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FCC’s rule to deny any application with missing information without opportunity to cure a effect.

exemptions demonstrate instances were interests promoted by public participation in rulemaking are outweighed by countervailing considerations of effectiveness, efficiency, expedition and reduction in expense

Chao v Rothermel (3d cir. P 747)

Whether the rule alters existing standards, or places additional burdens. If it does not determine substantive rights, but rather outline a plan, t is procedural

Estate of Shapiro v Commissioner of Internal Revenue Service commissioner invited reliance on a procedural rule. However, not abuse of discretion in prohibiting to file.

The rule is binding if (1) the rule prescribed

substantive rules- not interpretive

(2) the agency promulgated the rules pursuant to a statutory grant of authority and in conformance with the procedural requirements imposed by congress

a. even if the rule is procedural and doesn’t require authority, the rule maker may have abused his discretion and invited reliance on it.

Informal Agency Action- Estopping Agencies

Estoppel is an equitable doctrine based on one party’s adverse reliance on the misrepresentation of another. Estopping agencies, however, raises issues of soverign immunity and separation of powers, given that the judiciary is essentially

Fredericks v CIR: where told taxpayer that didn’t have the form to extend statute of limitations, then they found it and didn’t tell him and he thought they no longer had authority to look in.

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infringing on legislative exclusive power to write the law. Neverthelss, a party may estop an agency in an extreme circumstance. There are three essential elements a party must prove. First, the party must show that the agency misrepresented itself. This must rise to the level of affirmative misconduct. Second, the party must show that reliance is reasonable. If the guidance or advice is inconsistent with the statute or regulation, the party cannot establish reasonability. A party’s reliance is more likely to be reasonable if (1) the government agents had authority to engage in the acts or omissions @ issue. If the agent did not have authority, even if the party believed he did, reliance cannot be established. (2) The agent’s reliance is more reasonable if the misrepresentation is one of fact and not law (Can always advise counsel on law). (3) If the government beenfited from its misrepresentation. This is more an issue of fairness. Finally, the party must show that he suffered a detriment. The detriment must be in comparison to the party’s underlying legal obligation i.e. whether worse off from before. Even if a party manages to prove the elements, there is a per se bar against estoppel if its consequences would be to require monetary payments to a party that are not authorized by statute, as it would violate the appropriations clause.

Additionally, a new interest rate would have applied

Informal Agency Action- Reliance on non-legislative PEEKO: an individual’s When the government

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Reliance /Due process rules are generally not considered reaosonable because they are not binding. However, a party can potentially argue that failure to provide notice violates the party’s due process requiements. While this is not the best argument, it has succeeded before.

reliance on an agency position which the agency later disavowed violated party’s due process. This is a criminal case, however, so unclear whether it would be extended to civil.

tries to repudiate reliance it has provided, it may deprive a person of notice of what the law is, thus violating due process requirements.

Informal Agency Action- Consistency –Equal Protection

A party has two possible arguments

(1) Change in position violates equal protection if similarly situated people were treated more fairly under agency’s previous position (bad arg.- rational basis review)

(2) Resulting inconsistency amounts to arbitrary & capricious rulemaking. This will turn on whether the agency provides adequate reasons for changing its position

Informal Agency Action- Entrenchment

In some cases, an agency interpretation of a legislative regulation becomes so entrenched over times as parties rely on it, that the interpretation has essentially become part of the rule itself.

Alaska American Hunters (DC CIR)

In these cases, if the agency wants to change its position, it has to do so the way it would normally adopt a legislative rule, i.e. notice & comment rulemaking.

(criticism: lacks the force of law by definition so people know cannot rely on it, kind of ridiculous to require an amendment of a rule that doesn’t amend what your actually amending, because its not even in the rule!)

Avaiability of Judicial Review- Preclusion

Judicial review under the APA is generally available, however, two provisions provide for exceptions of

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judicial review. APA judicial review provisions do not apply, pursuant to § 701(1), where the statute precludes judicial review, or (2) where agency action is committed to agency discretion by law. There is a general presumption that review is available. This is because the constitution vests the entire judicial process in the courts of the US and because a particular preclusion provision may violate an individuals due process. Moreover, the introductory language of the APA, § 702, and § 704 all weigh heavily in favor of a finding that here is judicial review. Courts vary on how to properly rebut the presumption that the statute intends to allow review. Regardless of the test, the party must point to congressional intent by drawing on the language, structure, history, purposes, etc.

Abbot Labs v Gardner APA presumption in favor of review may be rebutted by clear and convincing evidence of congressional intent to restrict access to courts. Moreover, just because a statute makes parts unreviewable, does mean to whole is unreviewable.

Block v Community In order to rebut the presumption in favor of review, a party must show that congressional intent to preclude review is fairly discernible in the statutory scheme.

Even if judicial review is expressly available under the statute, a court may find that the delegation to the agency’s discretion is so broad, that it

NLRB v United Food: decision not to prosecute after a settlement was not reviewable. Moreover,

NOTE- the more important the interest @ stake, argue not committed to agency action

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precludes review. Historically, courts have interpreted this very narrowly, as evidenced in Overton Park. Moreover, just because something the agency has discretion, does not mean it will meet this exception, otherwise, it would make moot the point of setting aside agency action for being an abuse of discretion! Issues that are traditionally committed to agency discretion for purposes of the exception, are (1) an agency’s decision to not enforce/prosecution (2) an agency’s refusal to grant reconsideration of an action because of a (material?!?!?!!) error (3) allocations of lump sum appropriations (4) Pragmatic considerations determined by the court. These pragmatic considerations include nature of agency action (i.e not prosecute), the need for unreviewable discretion, judicial competence to review the decisions, the extent to which review would interfere with the agency, the nature and importance of the individual interest in review, amount of expertise required (Barlow v Collins), and comparing with other language in the statute (new york racing association- compare discretion granted in one provision with others).

it is not final because still allows judicial review if the employee breaches the settlement agreement.

Judicial Review limits- standing – constitutional requirements

Article III § 2 of the constitution limits judicial power to cases and controversies. Thus, judicial input can only be exercised when there exists concrete disputes between adverse parties that can be resolved through the application of

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law, whereby a party will have “standing.” There are three essential requirements to establish standing. First, plaintiff must allege that he has suffered an injury in fact. Second, that the injury in fact was caused by the agency action. Finally, that courts may redress the injury in fact. These obligations are jurisdictional, thus the action can be dismissed at any time.

Judicial Review limits- Standing- Injury in fact

An injury in fact is an invasion of a legally protected interest, which is concrete and particularized, and actual or imminent and not conjectural or hypothetical. Historically, the courts tended to determine whether plaintiff’s had standing, inquiring whether the action violated a legal right possessed by the plaintiff, i.e. those rights granted by the constitution, statutes, or common law. However, this legal rights test eventually changed given the amount of public rights groups challenging agency actions.

Sierra Club v Morton The legal rights test is no longer applicable. Instead, standing may be granted if individual members of a group have suffered aesthetic, environmental, or recreational injury.

NOTE: this was dicta- P’s did not have standing in this case b/c merely had ideological interest.

Standing- procedural violations

Standing for a procedural violation is only granted when the agency’s procedural violation could impair a separate concrete interest. The right to have the executive observe procedures is insufficient. Thus, plaintiff

Defenders of Wildlife

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must show that they would have standing to challenge the substantive outcome.

Standing- Informational violation

Informational injuries may be sufficient to confer standing.

Federal Election Commission v Akins: court concluded that a group of voters had standing to challenge FEC’s decision that a lobbying group was exempt from statutory reporting requirements.

An informational injury that directly related to the exercise of voting is concrete.

Standing- Environmental Injury

In an environmental injury action, plaintiff must show geographic and temporal nexus.

Lujan v National Wildlife- georgraphic nexus required- site specific activities that diminish member enjoyment

Lujan v Defenders of Wildlife: must show that aqency activities were going to occur @ an established date, or regularly occur. Not enough to show that you’ve gone in the past

Standing – Risk of future injury

A plaintiff may still have standing even though there is only a risk of the injury occurring. Increases in risk can qualify as congnizable injury in fact. Plaintiffs must demonstrate a “substantial probability” that injury will occur.

Defenders of Wildlife Environmental and health injuries are often purely probabilistic.

But see Public Citizens Inc v National Highway afrty Admin: D.C Cir. Cautioned against using statisticians.

Concurring opinion: would not apply this test @ all if court were not required to do so by stare decisis.

But see Mass. V EPA: allowing standing because of the increased risk that coastal properties would be flooded if didn’t regulate But see Summers v Earth Island Ist.: not allowing standing

Scalia: recognition of standing on these grounds would make a

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based on statistical probability that a few members would happen to stumble on a parcel of land affected by action

mockery of the standing requirement. Must alleged concrete, particularized injury

But see Monsana v Geerston Seed Farms: a farmer complained of potential contamination of alfalfa due to genetic engineering regulation- good enough risk, can qualify

Standing- Causation - redressability/procedural

A person who has been accorded a procedural right o affect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, the plaintiff need not show that following different procedures would necessarily have changed the outcome or that an order to follow more procedures would cause the agency to change its decision

Defenders of Wildlife Note- courts will allow standing to NEPA violations, i.e. didn’t to the EIS., because argument is that maybe they wouldn’t have done the action after contemplating the effects.

Standing- Causation/redressability in equal protection

In cases involving equal protection violation, the supreme curt has held that disappointed applicants need not prove that their applications would have been successful, reasoning that the injury in fact giving rise to standing is a denial of equal consideration

Standing- Judicial prudential limits

In addition to the constitutional limits on review, judges have developed prudential limits as well, however, because they are judge-made, they may be waived by statute. There are 3 limitations. First, a litigant cannot raise another persons legal rights. There is an exception, however, for association standing. If the

Allen v Wright

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association standing. Moreover, courts have expanded it to allow litigant who has suffered a concrete interest. Second, the court will not address grievances more appropriately addressed in the representative branches and Third, plaintiff’s complaint must fall within the zone of interest.

Standing- Judicial Prudential Limits- zone of interest

Are the interests sought arguably within the zone of interests t be protected or regulated by the statute or constitutional guarantee in question. (Association of Data Processing v Camp). This test is not meant to be especially demanding .

Clark v Serurities Ind. Assn (p 1111)

Thus, if a court finds that Congress intended that a particular class of plaintiffs be relief upon to challenge agency disregrd if the law, a member of that class will satisfy the zone of interest test

Standing- Separation of poers principles

The court has invoked separation of power principles in three distinct ways in standing cases. First, the court has used standing to restrict the jurisdiction of the federal courts to cases or controversies under Article III. Second, it has invoked standing rules and other justiciability doctrines to preclude the federal courts from resolving disputes it deems better suited t the political process so that the courts will not intrude into areas committed by the constitution to other branches of government. Third, some justices use standing as a tool to prevent congressional overreaching by constricting the courts to aid in its battles with the executive branch.

Judicial Review- Timing of review

The issues raised by the timing doctrine involve balancing the need to hold agencies accountable and the need to avoid improper judicial interference with the

Ticor Tittle Insurance v federal trade

1 judge thought action was not final, another thought it was not ripe, and 3 others believed didn’t exhaust remedies

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exercise of decision making authority that has been properly delegated by congress to agencies. In order to avoid such interference, four doctrines of timing apply: finality, exhaustion, ripeness and primary jurisdiction. As a practical matter, however, a given case will often represent multiple timing issues, and the matters overlap.

Judicial Review- Timing- Finality

Finality prevents court interference in ongoing agency activities. The court in standard oil said the test for finality depends on (1) whether the action is a defintive statement of the agency’s position, or (2) whether the action has direct and immediate legal force requiring immediate compliance by regulated entitles. The court has gone on to announce other tests, however, none has overruled the other, thus they all may apply.

Franklin v. Massachusetts

To determine whether an agency action is final, the court must examine

(1) whether its impact is sufficiently direct and immediate and has a direct effect on day to day business.

(2) Whether the agency action is only the ruling of a subordinate official or tentative

(3) whether the agency has completed its decision making process and

(4) whether the result of that process is one that will directly effect the parties

Bennet v Spar (1) The action must mark the consummation of the agency’s decision-making process- it must not be merely tentative or interlocutory

(2) EITHER the action must be one by which rights or

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obligations have been determined or which from legal consequences will follow/direct and immediate effect

Exhaustion While exhaustion and finality are very similar, exhaustion differs in that it focuses on the plaitntiff’s conduct rather than the agencies. § 704 of the APA has been interpreted by courts as requiring a person to exhaust administrative remedies, but only in two circumstances. First, when expressly required by statute. Second, when an agency requires it by rule AND provides for an automatic stay of the agency action pending appeal. There are three versions of exhaustion. First, a plaintiff must file a claim firectly with agency, and thus cannot bypass the agency. Second, even if you file a claim with the agency, you must follow through with the entire set of available procedures. Finally, there is issue exhaustion which is the notion that litigants may be barred n raising certain issues in court that it did not raise with the agency (this is more in adversarial context- about surprising the opponent). Exhaustion protects the authority of agencies to administer regulatory programs especially when the action under review involved exercise of discretionary power. It also promotes judicial efficiency by allowing agencies to correct their own errors and avoid judicial intervention and provide useful record, particularly in

Daby v Cisneros: interpreting § 704- overruling common law

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complex technical cases. To determine whether an issue is precluded, the court must balance the interest of the individual in attaning prompt access to federal court against the institutional interests. (McCarthy v Madigan)

Judicial Review- Timing- Exhaustion exceptions

There are three exceptions, however, to the exhaustion requirement. First, when the resulting delay would prejudice the plaintiff’s ability to obtain judicial relief at a later time such as when delay would cause irreparable harm (Bowen v City of NY). Second, if the agency would lack the authority to resolve the issue or grant the relief requested, such as when the plaintiff challenges the constitutionality of the statute under which the agency operates. Third, if an administrative remedy may be inadequatewhere the administrative body is shown to be biased or has otherwise predetermined the issue before it such that requiring exhaustion would be futile. It is not clear however whether these exceptions would be applicable under the APA, or only when the APA does not apply.

Judicial Review- Ripeness Ripeness overlaps with finality because an agency decision that is not final will not be ripe for review. Ripeness issues will typically arise in contexts other than pre enforcement review, such as when a litigant challenges an agencys planning document after adoption but prior to application in a factual context. The court in Abbot labs created a 2 part test. First, si the issue fit for a judicial decision. Typically if

Ohio Forestry v Sierra Club Test

Whether an issue is ripe (1) Whether delayed

review would cause hardship to the plaintiffs (like 2d factor in abbot labs)

(2) Whether judicial intervention would inappropriately interfere with further administrative action

(3) Whether the courts would benefit from further factual development of the

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the nature of the claim is purely legal, this will weigh in favor of review. Second, would hardship result to the plaintiff if the court withholds review? Typically a court would focus on whether there is a legal duty imposed requiring plaintiff to alter his primary conduct. If the only option is to violate the regulation or comply with something that is wrong.

issues presents (like first abbot labs)

Primary Jurisdiction Primary Jurisdiction permits a court to stay or dismiss an action properly before it in order to allow a federal agency to address it. The relevant considerations are (1) whether the question at issue is within the experience of the judges or involves technical or policy considerations peculiarly within the agency’s expertise (2) whether the question is particularly within the agency’s discretion

(3) Whether there is substantial danger of inconsistent rulings and

(4) Whether a prior application to the agency has been made

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Documents

Law... · Web viewCement Kiln Recycling Coal v EA (DC Cir) Court must examine whether the agency action binds private parties or the agency itself with the force of law