Administrative Law - Pierce - Spring 2009_4

8/20/2019 Administrative Law - Pierce - Spring 2009_4

1/67

Administrative Law – Pierce, Spring 2010

INTRODUTION

• scope dwarves courts, both in # of controversies and # of legally binding rules

• agencies not mentioned in federal Const. (though in states) – entirely statutory

• heavily inuenced by policy/politics

• federal admin law inuences state and local admin law, but still lots of variationo but note: ue !rocess clause applies to all agencies

• avoidance canon important to interpretation b/c Congress writes open"ended agency

statutes – Courts often leave many important Const. uestions unanswered

• Const. does somewhat limit type of agencies Congress can create (althoughambiguous)

• history of admin law

o old assumption that no signi$cant agencies (besides cabinets) until %CC in &''

o recent scholarship has debuned this assumption

o Congress continuously created powerful agencies of all types through &'th/&*th

centuries – e+ -teamship -afety Commission (&') to solve problem ofe+ploding steamships

o but agencies were not usually sub0ect to 0udicial review

• relationship btwn admin law and Const. structure

o agencies subservient to !re1, Congress, and courts

note: for decades, -C234- put agencies on same level5 now abandoned

but some states where const. recogni1es still thin this wayo details of relationship unclear – depends on conte+t, nature of decision, what

analogy court uses, e+ 0udicial – !re1 shouldn6t be able to inuence, give favor to political cronies

legislative policy decision – !re1 should be able to inuence

• course overview

o procedures agencies use to mae decisions

o 0udicial review of agency decisions

o relationship btwn agencies and branches of govt – especially practical e7ects on

govt. of limiting Congress6s powers to create agencies


2/67

!"AT IS AN A#$N%&I' types of agencies

8. independent agency 1' usually headed by multi"member commission2' commissioners with staggered terms of years, can only be removed for cause(' supposedly independent of !re1 (although political reality9)

:. cabinet agencies1' headed by -ecretaries or 8ttorney ;eneral2' serves at pleasure of !re1 and can be removed at will(' clearly within purview of e+ecutive branch

C. others1' many have aspects of both the other types

II' re)ati*ns+ip etween agencies and *t+er ranc+es8. all agree federal agencies are subservient to !re1, Congress, Courts

1' note: for decades, -C234- put federal agencies on same level, but nowabandoned

2' some state agencies, where state constitution recogni1es/provides for them, areconsidered eual to other branches of state govt

:. but details of relationship unclear1' depends on conte+t, nature of decision, what analogy you use2' -C234- has chosen not to resolve a lot of these uestions

III'main stat-t*r. de/niti*ns8. APA 1 –


3/67

a. 2?ce of -cience and 3ech K agency b/c evaluates scienti$c researchprograms, initiate and fund research pro0ects and scholarships

b. 2A: K agency b/c statutory duty to prepare annual federal budget, aidsboth Congress and !re15 -enate con$rmation of irector and eputyirector

c. Council of >conomic 8dvisors K not agency b/c no indep. auth5 noregulatory power, power to fund pro0ects based on its appraisal, power to

issue regulationsd. Eeagan 3as @orce on Eegulatory Eelief K not agency b/c laced authority

to +ec. Ee1 -ta7 K not agency b/c 0ust assist !re1 in maintaining home andcarrying out ceremonial duties

iii. 2?ce of 8dmin provides operational and administrative supporta. lie >+ec Ee1 -ta7

b. personnel management5 $nancial management5 data processing5 library,records, and information services

c. also supports non >2! entities (Lavy, -ecret -ervice, ;-8) – but only ifthey wor at the Mhite Nouse comple+

3


4/67

ON#R$SS AND A#$NI$S

I' ON#R$SS D$L$#ATIN# L$#ISLATI3$ PO!$R: NON;D$L$#ATION DOTRIN$8. . in man. wa.s, NIRA +as m*re meaning4-) standards t+an )ater cases1' AcDinley (&*&*) – upheld statute that let -ect. of Mar during MM%


5/67

(' Nope Latural ;as (&*FF) – upheld statute that gave @ed !ower Commissionpower to set


6/67

1' Chevron – non"delegation issue not e+plicitly discusses, but refutes idea thatagency policymaers are politically unaccountable bureaucrats

2' court has (almost) unanimously upheld broad delegations of power (Ch. , p.)i' Aistretta, F'' 4- GH& (&*'*) (Ch. , p. G)

a' holding (:lacmun) – Congress can delegate power to issue bindingsentencing guidelines to an independent agency (-entencingCommission)

• intelligible principle K guideline system with sentencing ranges forcategories of o7enses/defendants

• factors to consider for o7enses, && factors to consider for

defendants, some forbidden factors (race, se+, etc.)

• near ma+ for violent/drug crimes, recidivists, G"stries, etc.

• o if maing some policy 0udgments within this framewor

' dissent (-calia) – ob0ects to delegation and maeup of bodyii' -inner, F*B 4- & (&*'*) – -ec. of 3ransportation can develop incidence

and level of a ta+ (


7/67

iv' concurrence (Aarshall) – 8griculture ept. could easily create new hearingprocess (but note: hiring 8Ps, more appropriations, etc.)

v' aftermath – -C234- seemed to abandon !8 approves F pesticides as food additives even thoughcarcinogens

' EPA argues – should be de minimis e+ception to elaney Clausec' holding – stries down >!8 order5 elaney Clause is unambiguous and >!8

cannot revise e+isting statutory scheme

v' policy concern – removing pesticides would actually massively increasecancer b/c less pesticides KT more fruits/veggies consumed by pests KTBU reduction in veggie output KT BU marup in price KT people can6ta7ord to eat veggies/fruits

vi'Carol :rowner (Clinton >!8) – got Congress to reword statute so virtuallynever applies to pesticides (only way, politically, to do)

(' modern trend – Court seems to have recogni1ed that cannot use Const. to eepCongress from enacting statutes that are too broad/too narrow, this is inevitable

II' ON#R$SS D$L$#ATIN# ADEUDIATOR% PO!$R: A#$N% ADEUDIATION,ARTIL$ III, AND T"$ CT" AF$NDF$NT8. agencies (e+ecutive branch) now ad0udicate far more disputes than courts, and

courts review only with very deferential standards:. practical necessity – federal courts could not manage caseloadC. policy argument – some argue agencies better b/c less e+pensive and more

accurate/consistent5 others argue agencies worse b/c rela+ed procedures mayincrease cost and duration of ad0udications

. general pattern – where cases don6t involve agencies, dicta creates doubt of const5but where do involve agencies, court has never struc down agency ad0udicatoryregime

>. r*we)) v' Gens*n, 2 US 22 =1B(2> =+' 2, p' 1' background – hard for &*th century employees to recover under tort (strong

assumption of ris doctrine, fellow servant doctrine)2' facts – worer6s compensation reforms, with claims before agencies(' holding – no 8rticle %%% violation

i' distincti*n twn p-)ic rig+tsprivate rig+ts disp-tesii' public rights

a' did not e+ist at common law5 were created by statute' Congress can assign in $rst instance to be ad0udicated by agencies

iii'private rightsa' right here is (although overall def. is unclear) b/c former common law

right that Congress subseuently reassigned (rather than created)

7


8/67

' must be ad0udicated by courtsc' but plenary 0udicial review of agency action is su?cient

• !8 to use binding arbitration for proper compensationiii'reviewing court can only overturn for fraud, misconduct, ormisrepresentation

2' holding (unanimous) – upheld >!8 use of binding arbitrationi' narrow class of disputes involved, good 0usti$cation e+ists

(' majority (H) – reHected p-)icprivate rig+ts dic+*t*m., sa.ing H-streJected pragmatic -nderstanding

1' facts – C@3C administering reparations procedure for disgruntled customers of

commodity broers, including permissive counterclaims – Congress did note+pressly delegate, C@3C asserted power in rule interpreting C>82' holding () – -p+*)ds T asserti*n *4 p*wer t* adH-dicate c*mm*n )aw

c*-nterc)aimsi' narrow class of disputes (unlie banruptcy courts in Lo. !ipeline)ii' narrow powers (orders only enforceable by order of d.ct.)iii'facts reviewed under


9/67

vi'counterclaim is 1' facts –

i' did not submit claim against banrupt estateii' sued by trustee to recover allegedly fraudulent monetary transfer

iii'Congress designated fraudulent conveyance actions as nvironmental %mpact -tatement processiii'positive e7ect – on agency culture by forcing biologists into internal

decisionmaing processiv' negative e7ect – causing e+treme delays in popular public wors through

lengthy court proceedings

9


10/67

4. "ivil #ervice Act i' eliminated practice of hiring/$ring based on patronageii' govt must create meritocratic system of hiring, evaluating, promotingiii'advantages – before this, all govt worers go out and campaign b/c 0ob

entirely dependent on boss getting re"elected5 higher uality worforceiv' disadvantages – enables career civil servants to basically ignore political

appointees, who are comparatively temporaryv' growing U of worforce is political appointees, politici1ed agencies

' nformation $uality Act (BBB)i' Congress (i.e., regulatees) enraged by 8mer. 3rucing (>!8 reg. of small

particulate matter) – they ob0ect to >!8 relying on woring paper thatresearchers would not disclose to >!8 or regulatees

ii' statute – no agency can mae any $nding based on low"uality dataiii' implemented by – 2?ce of %nformation and Eegulatory 8nalysis (2%E8) in

Mhite Nouse 2A:iv' result K new tool for regulatees to delay/bloc regulatory actionv' in 0udicial review, gets rolled into agency duty to engage in reasoned

decisionmaing (duty to e+plain why relied on certain evidence)C. A))*cati*n *4 Litigating A-t+*rit. twn DOE and *t+er agencies

1' if lac litigating authority, powerless to perform its mission unless can get helpof 2/local 4- attorneys

2' -C234- reuires statute to say speci$cally that agency has power to representitself before -C234-i' but 2 $ghts clauses lie this tooth and nailii' if 2 and agency disagree about litigation strategy, pre1 has to settleiii'solicitor general basically has veto power over other agencies6 args

(' Congress has allocated in a mi+ed way, giving some agencies more power thanothers

. *n/rmati*n Pr*cess, Appr*priati*ns, Oversig+t "earings, *nstit-entasew*r@

>. Limits *n *ngressi*na) P*wer1. Due Process

i' govt o?cial cannot attempt to inuence agency in adH-dicat*r.pr*ceeding vs' private part.

ii' does not apply to rulemaing, or when no private party on other sideiii'!illsbury Co. v. @3C, GF @.d * (th Cir. &*HH) (Ch. , p. *)

2. Legislative Vetoi. argument for

a' Congress lacs e+pertise and foresight to state meaningful standards inadvance (and mistaes tend to be semi"permanent since leg. processslow)

' but after rulemaing process, Congress has record on which to assessgeneral problem and agency decision

c' Congress can (and should) veto actions it determines are inconsistentwith public interest

ii' was rarely used, but still arguably a7ected agency decisionsa' e+ >!8 want to implement !olicy 8, but gets call from powerful member

who opposes !olicy 85 >!8 then has motivation to call counter"partypowerful member in other house, !re1

' note: di7erent practical e7ect of one"house vs. two"house veto

10


11/67

iii'INS v' +ad+a, =+' 2, p' BB>a' background – Congress had included veto provisions in over BB statutes,

about to add generic veto provision to 8!8' facts – 8; has discretion to decline to deport illegal immigrants, but must

submit list of those he6s declining to deport to Congressional committee5committee and full Nouse said Chadha should be deported

c' holding – )egis)ative vet* -nc*nstit-ti*na)

• &"house veto violates :icameralism, but "house veto violates

!resentment Clause• Congress can use if do within HB legislative days (can be up to F

months) and satisfy bicameralism and presentment but note: this is pretty much the same as passing a law to overturn,

which Congress could always dod' aftermath – e7ect on pre"e+isting powers of Nouse, -enate, !re19

• delay e7ective date of rules

• only been used once, when lame"duc outgoing Clinton issued

midnight rule re 2-N8 ergonomics – overruled by Eepublican CongressW :ush

note: becoming earlier and earlier b/c C Cir. allowed incoming !re1to recall rules that hadn6t yet been published in @ederal Eegister

iv' variations on veto Congress uses after Chadhaa' agency o?cials and members of appropriations committees might reach

informal agmt that will see committee approval in e+change for funding(in committee report)

' still includes them in bills, even though !re1 sometimes re0ects const. –agency docs might acnowledge need to see preclearance

c' Congressional Eeview 8ct (8!8 QQ'B&"'B') – 0oint resolution, potentialveto by !re1

3. #hort-"utting %egislative Process

i' G*ws+er v' S.nar, =+' 2, p' 10B>a' background –

• early !re1 had lots of discretion over spending (appropriations made inbroad categories, and !re1 could decline to spend appropriated funds)

• Li+on declined to spend money appropriated for programs he

disagreed with politically

• &*F statute (omnibus) reuires !re1 to spend all appropriate amounts(budget language changed from


12/67

note: C; nominated by !re1, -enate con$rms, serves &"year term,

removed only through bicameralism and presentment (has neverhappened)

• # cann*t determine spending )eve)s c t+at is executive decisi*nK t+is is )i@e *ngress c*ntr*))ing e5ec-tive

d' concurrence – C; cannot determine spending levels b/c Congress can onlyact in way that binds !re1 through bicameralism and presentment(doesn6t matter whether function e+ecutive)

e' dissent – C; is independent (removal process so di?cult), determiningspending levels is not policymaing so Congress can delegate

12


13/67

$$UTI3$ SUP$R3ISION O A#$N% ATIONI' SOUR$S O ONSTITUTIONAL PO!$R

8. 3esting )a-se1' mployee) KT complete discretion to appoint any way2' general test

i' length of duration / scope of duties / degree of $nality of decisionii' for $nality, review by 8rt. %%% court is irrelevant (b/c everyone6s reviewable)iii' if no review within e+ecutive branch KT probably an o?ceriv' if there is review but deferential KT probably in inferior o?cer (particularly if

another body has power to remove decisionmaer, even for cause)v' if has no power to issue $nal decision, and 8gency can ignore and substitute

its own decision (e+ 8P) KT employeevi'note: military o?cers/0udges are all o?cers b/c commissioned

(' policy – widely distributed appointment power subverts dem. govt, @reytag 4. Who is an Ocer!

i' :ucley v. Xaleo, FF 4- & (&*H) (Ch. G, p. F)a' facts – $ c*nsists *4 2 memers c+*sen . PreM, 2 . Senate, 2

. "*-se' holding – se)ecti*n met+*d vi*)ates app*intments c)a-se

• @>C has e+tensive rulemaing and ad0udicative powers

•

2?cer of 4- K appointee e+ercising signi$cant authority• o?cers can only be appointed by !re1, nomination sub0ect to -enate

con$rmation

• inferior o?cers can be appointed by !re1, head of ept, of court of law

c' note: Civil Eights Commission (same appt method as @>C) o, Nannah v.Parche (&*HB)

d. aftermath

13


14/67

• Congress amended @>C8 – Commissioners all appointed by !re1,con$rmed by -enate, but no more than G from same party5 -ec of-tate and Cler of Nouse sit as non"voting members

14


15/67

ii' @>C v. LE8 !ol. Xictory @und, H@Gd '& (C Cir. &**G) (Ch. G, p. &B)a' issue of -ec. -tate/Cler K unconst.

• agenc. +as e5ec-tive p*wers, s* *ngress ma. n*t app*intv*ting *r n*n;v*ting memers – here, even though non"voting,have potential to inuence

' issue of members from same party K non0usticiable

• imposs. to determine whether actually limited !re1 appt power

• maybe 0ust political sign from Congress, since it can re0ect nominees

under advice/consentc. aftermath

• -C234- granted cert, but dismissed after $nding @>C laced power to

litigate in -C234-

• @>C reconstituted itself, e+cluding non"voting members (upheld by C

Cir.)iii'Pandry v. @%C, BF @. Gd && (.C. Cir. BBB) (Ch. G, p. &F)

a' holding – @%C ALEs are emp)*.ees, *nst' sa.s n*t+ing a*-t +*wt+e. are app*inted s* *ngress +as c*mp)ete discreti*n

• 8!8 Q(b) authori1es an agency to substitute its own opinion for that

of an 8P as if the 8P had never issued an opinion• relying on @reytag (infra)

' dissent – 8Ps are inferior o?cersc' all agreed – any change in law that increased the legal e7ect of 8P

decisions would mae them o?cers or inferior o?cers KT would forcechanges in the manner in which they are selected KT reuire a change inlaw that would authori1e the !resident to remove 8Ps in somecircumstances

". Principal Ocer vs. #n$erior Ocer i' e+amples of inferior o?cers (in >dmond, Ch. G, p. H) – district court cler5

election supervisor5 vice consul with temp. consul powers5 4- commissioner

in district ct. proceedingsii' @reytag, B& 4- 'H' (&**&) (Ch. G, p. GB)

a' issues –

• #& whether 4- 3a+ Court -pecial 3rial udges (-3) are o?cers/inferior

o$cers

• (# infra)

' holding (unanimous) – STEs are in4eri*r *9cers

• authority to render $nal decision of 3a+ Court in declaratory 0udgment

proceedings and small"amount ta+ cases

• duties, salaries, means of appt all in statute

•


16/67

• 8; conducts prelim. investigation, if thins warranted noti$es specialG"0udge !anel, who appoints %C (and sets 0urisdiction)

• can be removed by 8; only for cause, or by !anel if thins

investigation has been completed

• congressional oversight

' issue &' – can %C be appointed this way9 what type of o?cer9 (issue &( infra)

c' holding (')YI is in4eri*r *9cer, s* *-rt pane) can app*int

• sub0ect to removal by higher >+ec :ranch o?cial – 8; for cause

• limited scope – investigation and prosecution for certain fed crimes5 nopolicymaing authority, has to follow 2 policies

• limited 0urisdiction – granted by !anel pursuant to 8; reuest5 plus 8ct

itself restricted to certain feds suspected of certain serious crimes

• limited tenure – basically single tas, then terminated

iv' >dmond, B 4- H& (&**) (Ch. G, p. )a' issue – can -ec of 3ransportation appoint civilian members of Coast ;uard

criminal appeals court9' holding – yes, H-dges *n *ast #-ard *-rt *4 Appea)s are in4eri*r

*9cers• distinguishes Aorrison – 0ur. not narrow, tenure not limited

not reuired to defer to trial court6s factual $ndings

• compares to @reytag – sig. duties/discretion but still inferior

• depends on whether !rincipal 2?cer (below the !re1) directs and

supervises wor here, supervised by 8; who can remove without cause, and maes

rules/procedures and by C8 for 8rmed @orces, which reviews cases, but narrower

scope of review (cannot reevaluate facts)

8; subord. to -ec. of 3ransportation' Who is %ead o$ a Depart&ent! =t+at can app*int in4eri*r *9cers>i' @reytag, B& 4- 'H' (&**&) (Ch. G, p. GB)

a' issues &( – since -3 inferior o?cer, whether 3a+ Court is dept (with Chief udge as head) or Court of Paw or neither (&' supra)

' holding &' (unanimous) – yes, -3s are inferior o?cersc' holding &( () – ta+ court is court of law, so Chief udge can appoint

inferior o?cers -3s

• not an agency/dept.

6department re4ers *n). t* cainet departments

=6e5press). created and given t+e name *4 a dept .

*ngress> limited in # and easily %ed, sub0ect to political oversight, share

!re1 accountability to the people @L not addressing @3C, ->C, @ed >nergy Eeg Comm, @ed Eeserve

leg. history, Congress intended this as 8rt. % court not agency

• is *-rt *4 Law n*t )imited t* Art' III, H-st +as t* e5ercise H-dicia) p*wer *4

US 3a+ Court does not mae political decisions

16


17/67

powers similar to district courts (contempt, in0unctions, etc.)

decisions not reviewed by Congress or !re1, only 4- C8s and -C

C8s review lie district court, not lie agency rulemaing

d' concurrence (F) – ta5 c*-rt is an e5ec-tive ranc+ department, wit++ie4 E-dge as "ead

• not Court of Paw

*n). an Art' III c*-rt can e *-rt *4 Law 4*r app*intments

c)a-se C that has power to mae $nal decision butcan be removed by votes of ->C

@. 'ecess (ppoint&ent )lause1' 8rt. %%, Q , Cl. G, nd of their ne+t -ession.=i' recess9 long intra"session ad0ournmentii' happen9 e+ist, not ariseiii' issues with holdover o?cers on comissions

2' pragmatic e+ception to -enate consent reuirement(' freuent source of friction btwn e+ec/leg. branches


18/67

1' facts – pre1 unilaterally removes postmaster (2?cer) in de$ance of 3enure in2?ce 8ct, which says !re1 cannot remove any o?cer without -enatecon$rmation

2' holding (3aft) – 8ct unconst., PreM +as -n)imited discreti*np)enar. p*wert* rem*ve an. e5ec-tive ranc+ *9cer =s* *ngress cann*t )imit>

(' continued meaning9i' not this broad propositionii' tension with :owsher (Congress could not retain removal power over C; b/c

e+ecutive o?cer) and Chadha (Congress cannot veto agency action withoutpresentment to !re1)

>. independent agencies and removal power1' characteristics

i' headed by multiple membersii' nominated by !re1, con$rmed by -enateiii'no more than bare ma0ority of members of same partyiv' sub0ect to staggered $+ed termsv' !re1 removal only for causevi' in what sense independent9 perhaps collegial nature

18


19/67

2' Numphreys >+ecutor, * 4- HB (&*G) (Ch. G, p. F')i' facts – @E removes Numphrey as @3C Commissioner, sending him letter

e+plaining b/c of di7erent political philosophiesii' holding – -n)aw4-) 4*r PreM t* rem*ve c indep' agenc.

a' $+ed term of years, could only be removed Cv. LE8 (C Cir. &**G)@. Aorrison v. 2lson, F' 4- HF (&*'') (Ch. G, p. H)

1' facts – -aturday Light Aassacre5 independent counsels (%Cs) to investigateand/or prosecute criminal conduct by !re1 and other high"raning o?cials5 %Csappointed by special G"0udge court, can only be removed by 8; for cause

2' issue &' – does this violate


20/67

iii'policy arguments – court would have to say same things re an asst 8; orasst -ecretary of -tate (but note: these have broad policymaing power)

' continued meaningi' Congress eventually agreed with -calia6s6 policy args, abolished %C

I3'Ot+er PreM Attempts t* *ntr*) Agencies8. ,ature and -cope o$ Pre (uthority

1' [oungstown, GFG 4- * (&*) (Ch. G, p. H&)i' -C234- unlawful for 3ruman to nationali1e steel mills during Dorean Mar

ii' acson concurrenceiii'#& – !re1 power t* review maH*r =/nancia)).> r-)es iss-ed .

e5ec' ranc+ agenciesii' X! as Nead of Competitiveness Council to resolve disputes between 2A: and

agenciesiii'2A: can delay publication of rule

a' but subordinate to statutory deadlines' (agency might use to advantage to get e+pedited 2%E8 review)

iv' reuires rules be consistent with cost/bene$t analysisa' 2%E8 taes into account more broad policy concerns – e+ for >!8, not 0ust

clean air or water, but also economy, foreign relations, etc.' note: must be consistent with -tate @arm (8VC test5 consider factors

Congress told to in statute) and Chevron (deference to agency)v' 2A: can reuire consultation with other agencies, consideration of other

data

20


21/67

a' note: must be consistent with Lova -cotia @oods (8VC, can6t leave issueunanswered)

vi'applies only to e+tent consistent with lawa' e+plicit recognition of acson6s characteri1ation that !re1 can6t really

order someone to violate the law2' Clinton >+ecutive 2rder &,'HH

i' includes same ma0or elements as Eeagan >2ii' e+pands reuirements to apply to


22/67

ADEUDIATION

I' ONST' R$UIR$F$NTS – DU$ PRO$SS8. w+en d-e pr*cess app)ies

1. hen DP re7uires agency to use ad8udication rather than rule&a9ingi' Pondoner v. enver, &B 4- GG (&*B') (Ch. F, p. G) – particulari1ed facts

a' facts – city repaving pro0ect5 after completion, demanded more inproperty ta+es from Pondoner b/c value of property had increased5 citydenies him hearing on how much property value has increases

' holding – govt cannot increase individual)s ta+es based on contesteddetermination that his property has become more valuable, withoutproviding him notice and some ind of hearing (but still unclear what indof hearing reuired)

ii' :i"metallic, G* 4- FF& (&*&) (Ch. F, p. ) – legislative factsa' facts – enver, to increase services to population, plans to raise property

ta+es by FBU5 :i"Aetallic refuses, citing Pondoner' holding – govt. can increase ta+es of a group without providing any notice

or hearing5 decision not made based on contested facts uniue to !, butinstead on legislative facts and opinions about policy – ! has access topolitical process, where can disagree with city council and/or vote themout of o?ce

2. DP in ad8udication : li$e; liberty; or property i' ue !rocess reuires hearing in some ad0udicationsii' 3>-3 (&) is there liberty interest9 () apply Aatthews v. >ldridge factors to

determine procedures reuired3. is there a liberty interest!

i' stat-t*r. entit)ement w+ic+ P is a)read. receivinga' ;oldberg v. Delly, G* 4- F (&*B) (Ch. F, p. &)

• facts – federal 8id for ependent Children (8@C) for children with only& parent that is not able"bodied man5 e+ parte investigation ifsuspected ineligible5 no notice or hearing prior to termination of theiraid, which would be reinstated retroactively if ! won appeal

• holding – statutory entitlements are


23/67

• facts * locality distributed list of nown druns to bars/liuor stores,instructing them not to sell alcohol to them5 Constantineau on the list

• P argues – o?cial stigmati1ed, depriving him of liberty interest bylabeling him detrimentally

• holding – o?cial stigmati1ation is unconst. without !5 ! would neednotice and opportunity to be heard before list distributed

' !aul v. avis, FF 4- H*G (&*H) (Ch. F, p. G)• facts – local police chief circulated list of nown shoplifters (with pics)

to merchants5 had never been convicted• holding – no ! violation

re"interp. of Constantineau, need o?cial stigmati1ation 8L

deprivation of something tangible (there, right to buy boo1e) here, no deprivation of anything tangible

iii'emp)*.mentservices Q i4 can *n). e /red 4*r;ca-sea' :oard of Eegents v. Eoth, FB' 4- HF (&*) (Ch. F, p. H) and

!erry v. -indermann, FB' 4- *G (&*) (Ch. F, p. G)• facts – public university professors $red without hearing+ Eoth K "year

at"will professor where need F years to get tenure5 -indermann K &B"year professor at non"tenure college

• holding – in employment Ds where employee can only be terminatedfor cause, employee has property right in employment and thereforemust have ue !rocess before taen away Eoth had mere


24/67

a' facts – --8 terminating disability payments5 same procedure L[C using toterminate 8@C payments (after written denial of bene$ts, entitled to 8Poral hearing, but bene$ts taen away until after hearing determineseligible)

' holding – constitutional (reversing lower courts relying on ;oldberg)• G"part test for whether can tae away bene$ts pre"hearing

(&) imp*rtance *4 interest at sta@e – sub0ective, not monetary

(e+ S,BBB in food stamps might be worth more than S&BB million

to utility)5 lingering problem of whose values, necess. notlegislature6s

() ris@ *4 err*r *4 c-rrent pr*ced-res, and va)-e *4 added

pr*ced-res (G) c*st *4 added pr*ced-res

• distinguishes ;oldberg – p-re paper +earing *@a. disability bene$ts less important than 8@C, which provided +press, F'& 4.-. (&*')

a' facts – driver $red, he claims for whistle"blowing and trucing companyclaims for 4%5 23 orders co. to reinstate him, and employer demandsfull evidentiary hearing

' plurality – p-re paper +earing OQ 5 no disclosure of witnesses totrucing company b/c danger of $ring other whistleblowers

c' dissent – need oral evidentiary hearingvi'Namdi v. Eumsfeld, F 4- B (BBF) (Ch. F, p. HH)

a' facts – 4- citi1en held on 4- soil as


25/67

1' 8rnett v. Dennedy – G"0ustice plurality5 individual who relies on statute as basisfor property right must accept statutory procedures for invoing that right (taethe bitter with the sweet)

2' :ishop v. Mood – seems lie H 0ustice adopted, but ambiguous b/c also paralleldiscussion of federalism concerns and other rationales – but afterwards,conservative circuits began to apply

(' ' 0ustices re0ect in Cleveland :oard of >d. v. Poudermill, FB 4- G (&*') (Ch.F, p. HB) – tenured public school teacher had rig+t t* pre;terminati*n

+earing even t+*-g+ n*ne pr*vided . stat-tei' *n). )**@ at )egis)ative )ang-age t* see i4 t+e. intended t* create a

pr*pert. rig+tK +*w m-c+ pr*cess is d-e is entire). a H-dicia)4-ncti*n

ii' but pre"termination hearing can be brief, informal, paper hearing (not oralevidentiary of ;oldberg)a' note: this is common outcome of many cases in post">ldridge world

25


26/67

II' STATUTOR% R$UIR$F$NTS8. *rma) AdH-dicati*n, APA


27/67

• classic ad0udication b/c only a7ecting one entity through issuing or notof permit

c' holding – >!8 interp. of


28/67

i' 8!8 reuires – internal separation of functions, and 8Ps to have decisionalindependencea' feds generally separate (b/c enough resources), most issues in state

conte+t' Congress sometimes created separate agencies to prosecute and

ad0udicate (e+ 2-N8 maes rules and 2-NEC ad0udicates)ii' policy – more uni$ed system is more e?cient, but split process potentially

fairer for regulatees

iii'Mithrow v. Parin, F& 4- G (&*) (Ch. F, p. *) – can have same individualperform all functions and still const. under ue !rocess

iv' pecuniary bias disualifying – Mard, ;ibson, @riedmanv' viewpoint bias disualifying – Paird v. 3atum

2. udicial


29/67

• circuit courts dividedc' holding – SOTUS -p+e)dK saw instit-ti*na) ene/tsd. results

• new grid system meant --8 vocational e+perts reorgani1ed before grid – generalists organi1ed geographically

after grid – specialists organi1ed by specialty5 read up on certain

industries, how uali$cations and available 0obs changing• bene$ts – speciali1ation produces more accuracy5 increased

consistency b/c based on uniform grid5 e?cient b/c costs and timeneeded go way down

• but note: grid system only replaced U of cases5 in others, need moreindividuali1ed assessment b/c case hinges on how much a7ects abilityto wor (an+iety, depression, chronic pain)

ii' :owen v. [ucert, F' 4- &G (&*') (Ch. , p. &F)a' facts – statute reuires --8 to consider age, educational level,

e+perience, and impairment• if consider all at once can be highly sub0ective• s* SSA deve)*ps r-)e – ;step decisi*nma@ing pr*cess

step ass whether severe, 8P should stop at that step if not

non"e+clusive list of severe impairments

' holding – -p+*)ds, -t mi5ed reas*ns• partly upheld b/c --8 reassured at oral argument that 8P has

discretion and that --8 watering down• by the time of challenge, --8 had changed rule to eliminate most

controversial features• --8 recipients – disabled and elderly – have strong political lobby

c. eects• unintended K fewer bene$ts awarded• did improve consistency, timeliness•

but, even with rule, many cases fell into residual category impairmentclear but severity unclear, or have to aggregate e7ects of severalimpairments

4. (gency 'ules to )ontrol Procedure/Predicate o$ (d8udicationi' [etman v. ;arvey, H& @.Gd HHF (th Cir. BB&) (Ch. , p. &*)

a' rule can eliminate completely an entire class of ad0udications' facts – @88 rule (very old)

• reuires airline pilots to retire at HB showed increased ris of sudden incapacitation by stroe and heart

attac – but docs now little about ris factors besides age –de$nitely both over" and under"inclusive

having individuali1ed hearings very e+pensive, and delay couldresult in pilots having accidents in meantime

• e+emption procedure will be summarily denied unless contain proposed techniue to

assess indiv6s pilot6s abilities and ris of sudden incapacitation 8ge -i+ty >+emption !anel – e+tensive testing

• @88 has denied every petition for e+emptionc' rule had survived court challenges in -C234-, challenged when better

medical evidence gained

29


30/67

d' holding – rule upheld• new test (Cog-creen"8>) is still doubtful and agency can dismiss

!anel6s reliance on• inuiry K whether @88 appropriately considered the evidence and

provided su?cient 0usti$cations• inappropriate to inuire into @88 motives (assess only to satisfy court

review since has never granted e+emption)• deference to @88 b/c e+pertise and policy 0udgment

e' aftermath – Congress passed statute raising age from HB to H4' note: both choices are poor – either costly V accurate rule, or e?cient but

both over" and under"inclusive rule

30


31/67

RUL$FAQIN#I' !+. R-)ema@ing&

8. practical advantages o$ rule&a9ing&. note: b/c of these, courts often inclined to interp. statutes to give agencies this

power. higher uality rules b/c

i' broader input through comment processii' focus on policy issues rather than idiosyncratic facts in indiv. ad0udicationsiii'forward"looing instrumental approach

G. greater fairness b/ci' broader participation rightsii' better noticeiii'application to all regulatees at same time

F. most e?cient and e7ective b/ci' binding e7ectii' reduction in hearings and scope of hearingsiii'more clarity about what it taes to comply

. better political accountability b/c advance notice, broader participation rights,transparent process

:. types o$ rules&. procedural – inherent power to issue, even if statute completely silent (e+

length of briefs). interpretative – non"binding, tell public how agency interprets statute it

implements5 can be done at any time without any procedures5 courts approveb/c good policy

G. legislative – have legal e7ect, virtually indistinguishable from statutes5 must begiven power from governing statute5 most but not all agencies can issue

C. agency poer to issue legislative rules&. Lat6l !etroleum Ee$ners 8ss6n v. @3C, F' @.d H (C Cir. &*F) (Ch. , p. G)

i' facts – new @3C chairman asserts power to mae legislative rulesa' creates rule for octane posting at gas stations' di?cult to enforce through ad0udication b/c

• widespread and ad0udications only bind & party

• oil companies maing a huge pro$ts (willing to 0oin together and spend

lots of money $ghting individual ad0udications)ii' holding – T +as p*wer t* iss-e )egis)ative r-)es

a' statute clearly authori1ed @3C to % unfair trade practices' statute has


32/67

i' admits stat-te amig-*-s -t t+in@s g**d s*cieta) p*)ic. 4*r T t*ma@e )eg' r-)es

ii' s*me t+in@ *ngress *n). intends t* est*w p*wer w+en stat-tesa.s 6vi*)ati*n *4 t+is stat-te t* vi*)ate agenc. r-)es

. C, whether conduct of publiclytraded $rm violate -V> 8cta' found a violation based on interps of 0udicial opinions' but -C disagreed with ->C6s interp of the cases, reversed and remandedc' on remand, ->C decided – in $rst instance – that behavior was a violation

of -V> 8ct, as a matter of policyii' Ps argue – ->C cannot do this b/c counter to court ruling and maing rule

without rulemaing processiii'holding &' – agenc. can ta@e acti*n *n remand identica) t* t+e acti*n

reversed . c*-rt I agenc. can pr*vide di8erent and )ega)).permissi)e asis 4*r t+e acti*n

a' court reviews both result and reasoning behind it' court may uphold nd (same) decision as long as accepts new reasoning

iv' holding &( – agenc. can ann*-nce genera)). app)ica)e princip)es *ncase;.;case asis in adH-dicati*ns rat+er t+an r-)ema@ing b/ca' +celsior

• >+celsior rule was announced in prior ad0udication, but prospective

' !%./ argues – met ad0udication pro. reuirements, therefore validc' plurality (F) – $5ce)si*r n*t adH-dicati*n -t pr*' Jawed r-)ema@ing

c pr*spective5 but upheld order b/c could do so as ad0udication w/Myman

d' concurrence (G) – t+in@ $5ce)si*r *rder va)id adH-dicati*nr-)ema@inge' dissent () – agree with plurality that pro. awed rulemaing b/c

prospective5 therefore agency can6t use against Myman4' some thin overrule Chenery %% b/c

• one ma0ority (H) thin >+celsior ad0udication"rulemaing invalid (but

non"binding dictaZ)

• but another ma0ority () thin Myman order should be upheld

ii' Aorton v. Eui1 (&*F)a' facts – Eui1 on special welfare program for Lative 8mericans

32


33/67

• moves o7 reservation to tae 0ob5 after laid o7, re"applies for specialwelfare bene$ts

• :ureau for %ndian 87airs (:%8) says only available to Lative 8mericans

living on reservations – decided in ad0udication B years ago, upheldby courts

' holding (unanimous) – Eui1 gets bene$ts

• agency can issue legal binding rule only through formal rulemaing(but doesn6t mention Chenery %% or Myman";ordon)

• but other 0usti$cations – due process5 govt has $duciary duty to Lative

8mericans5 agency reuired to apply own rules (


34/67

F. -t SOTUS -nanim*-s). a9rmed +ener. II without mentioning Eui1i' :ell 8erospace (&*F) (Ch. , p. G)

a' there are advantages to rulemaing, but LPE: has discretion to decidead0udicative procedures wor well too

' choice to use ad0udication over rulemaing reviewed for abuse ofdiscretion

". ad8udication?rule&a9ing and retroactivity i' :owen v. ;eorgetown 4niv. Nospital, F'' 4- BF (&*'') (Ch. , p. GH)

a' in formal rulemaing – agency cannot issue retroactive rule unless Congress has e+plicitly authori1ed

' in ad0udication – agency can announce retroactive rule unless result isunduly unfair

c' note: incentivi1es agencies to use ad0udication over rulemaingii' ept -tore 4nion v. LPE:, (C Cir. &*) (Ch. , p. F&)

a' when retroactive rule in ad0udication would be ineuitable

• (&) whether case is one of &st impression

• () whether new rule is abrupt departure or void"$lling

• (G) reliance of party on former rule

•

(F) burden on party of new rule• () statutory interest in applying new rule despite reliance

' note: th Cir. does case"by"case cost/bene$t analysis insteadII' (P( 'ule&a9ing Procedures

8. Pr*ced-res, APA ( – notice, comment, $nal rule1. notice

i' published in @ederal Eegister, !8, *B @.d F& (C Cir. &**&) (Ch. , p. )

a' facts – >!8 rule for ha1ardous substances

• issued notice discussion various ways might de$ne something as

ha1ardous

• years later, in $nal rule, has some new things dealing with mi+turesand residue from cleaning process

' #hell argues – notice did not give warning that might include mi+tures orresidues, and -hell never got to comment on this possibility

c' holding – rules for -hell b/c n*tice m-st 6ade?-ate). 4*res+ad*w/na) r-)e OR /na) r-)e m-st e 6)*gica) *-tgr*wt+ *4n*ticec*mment pr*cess

vi'!ortland Cement, F'H @.d G (C Cir. &*G) (Ch. , p. HG)a' facts – whether/how to regulate cement plants under C88

• $nal rule very draconian, and agency mainly relied on internal study

that had not been released to the public' Portland "ement argues – should6ve had opportunity to see and comment

on study5 unfair and inconsistent

34


35/67

c' holding – rules for !ortland

• agenc. m-st disc)*se met+*d*)*g. and 4-)) res-)ts *4 tests=s-mmar. n*t en*-g+>

• agency must submit study to court, and !ortland must submit what

comments it would6ve submitted in response KT here, commentse+pose many holes in agency study

vii' 8merican Eadio, F @.Gd (C Cir. BB') (Ch. , p. H)a' facts – @CC rule to regulate use of radio spectrum' holding – remand to the @CC

• 4ai)ed t* satis4. n*ticec*mment re?' *4 APA c redacted st-8*n w+ic+ it re)ied – agenc. m-st disc)*se tec+nica) st-diesdataand sta8 rep*rts interpreting

• also failed to provide reasoned e+planation for certain measurement

factor

• but !s must show pre0udice (not 0ust procedural error) to set aside rule– !s here did show pre0udice by showing


36/67

' facts – licensing of Xermont [anee nuclear power plantc' 0" "ircuit – agency must have hearings about where to safely store

nuclear waste5 can be read as remanding under 8VC standardd' holding (unanimous) – c*-rts can *n). mandate pr*ced-res re?-ired

. r-)e, stat-te =APA *r *rganic>, *r c*nstit-ti*n =DP>K cann*tre?-ire e5tra pr*ced-res

• courts misconceiving their role before this, many courts believed could treat agencies as lower

courts, e+ercising supervisory powers over them now, -C emphasi1es agency is part of co"eual, coordinate branch

of govt

• if rules getting struc down for this KT agencies over"procedurali1e KT

bene$ts of informal rulemaing loste. result

• 0udges disagreeing with Xermont [anee had other options most

popular K apply


37/67

• frustrate 0udicial review – maes hard for 0udges to assess under 8VC ifnot aware of all materials before Commissioners

• unfair – one record for public, another for those


38/67

v' -ierra Club v. Costle, H @.d *' (C Cir. &*'&) (Ch. , p. '*)a' facts – >!8 rule re coal"$red steam generators emissions under C88

• industry groups and environmental groups both sue

• e+ parte comm. are * meetings with MN/Congress, all entered onto

docet' holding – e5 parte c*ntacts *@a. +ere

• constrained by C88 te+t, Xermont [anee5 C88 silent on e+ partecontacts (but reuires >!8 to docet all docs of central relevance)

• 0udges shouldn6t necessarily loo asance at e+ parte contacts in

informal rulemaing

• bene$ts – agency win support for rules, reduce future enforcement re.by informing industries, spur provision of info to agency

4. @ias and Pre8udg&ent i' both 8!8 and ue !rocess reuire neutral decisionmaerii' potential sources of bias – pecuniary, relational, prior role in dispute,

pre0udgmentiii'but note: e+perts often have strong views, and pre1 appointment inherently

involves policy bias (arguably democratic)

iv' 8ssn of Lat6l 8dvertisers v. @3C, H @.d &&& (C Cir. &**) (Ch. , p. *)a' facts – @3C %mprovement 8ct abrogated rulemaing ability

• Chairman !ertschu ma0or force behind, gave widespread interview

about how children6s 3X evil and immoral (b/c ads for sugar cereal,etc.)

' Ps argue – challenges rule b/c !erschu biased against their cause, citingspeeches and interviews

c' holding – upholds rule5 standard w+et+er 6-na)tera). *pp*sedmindK +as never een app)ied t* dis?-a)i4. r-)ema@er fromrulemaing process

III'$5empti*ns 4r*m APA R-)ema@ing Pr*ced-res, APA (

8. -ub8ect


39/67

a' no comments agency should6ve responded to (common challenge to leg.rules)

' only way to challenge K argue legislative rule, instead of policy, thatshould6ve had notice/comment period

. policy – this type of rule serves important function in industryi' almost always issued in response to regulatee reuests for help in interp,

provide useful guidanceii' but prisoner6s dilemma problem b/c if particular rule bad for regulatee, going

to challenge despite wider bene$tsG. 8merican Aining, ** @.d &&BH (C Cir. &**G) (Ch. , p. &&)

i' facts – Aine -afety and Nealth 8ct authori1es A-N 8dmin to reuireregulatees to mae reportsa' A-N8 issues rule reuiring regulatees to report each occupational disease


40/67

. but advantages of rulemaingi' higher uality rulesii' greater fairnessiii'more e?cient/e7ective because binding and fewer hearingsiv' better political accountability

C. rulemaing ossi$cation&. most admin. law scholars blame Congress and courts. Eegulatory Legotiations Aovement (passed almost unanimously)

i' pressure agencies to use negotiationii' agencies tried, but really only wored for minor rulemaingiii' in ma0or rulemaing added even more timeiv' !ierce notes problems $nding big enough venue5 %ing all issues,

unbelievably lengthy5 never going to get large # to agree. trend towards remand without vacating

&. old method – if court perceived aw in rule, any inadeuacy su?cient for courtto vacate and remand case to agency for further proceedings

. new trend – C Cir. &**GG. if not of type agency can correct on remand, and vacating would mean ma0or

disruption

F. but some C Cir. members thin unlawful. no en banc C Cir. or -C234- has yet supported (so far only dissents and some

G"0udge panels)

40


41/67

EUDIIAL R$3I$!I' R$3I$!AGILIT%

8. str*ng pres-mpti*n *4 reviewai)it.1' 2verton !ar, FB 4- FB (&*&) (Ch. F, p. 'H)2' background – 23 implementing fed highway statute and approving routes, but

state/local govts actually chose the routes5 choice of route often contentious b/cenormous econ. conseuences to rural towns/disrupted city life

3. holdingi' because statute doesn6t preclude review, court can (freuently cited for

strong presumption of reviewability5 !ierce says e+traordinarilyinterventionist)

ii' APA )ists circ-mstances w+en -nreviewa)ea' i4 c)ear and c*nvincing evidence t+at *ngress intended t*

prec)-de review, C01=a>=1>' i4 c*mmitted t* agenc. discreti*n . )aw =asica)). n* )aw t*

app).>, C01=a>=2>iii'standard of review

a' 8!8 QBH()(8), aVc,


42/67

ii' holding &( (") – avoidance canon allows const. review5 &Fth 8m. reverseincorp. through th 8m. (ohnson v. Eobison and others)

iii'dissents (26Connor, -calia) – C%8 reuires wide discretion5 broad"basediv' implications – means fate of gay employees at C%8 largely dependent on

admin


43/67

C' Necler v. Chaney (&*')i' facts – anti"death penalty group $les lawsuit with @8 arguing drugs used for

lethal in0ection are not safe/e7ective5 @8 does nothing (doesn6t investigate)ii' 0" "ir . – applies presumption of reviewability/@8 policy statement re o7"

label use to compel @8 to actiii'#"O45# – reverses

a' pres-mpti*n *4 -nreviewai)it. 4*r agenc. inacti*n

• reality that no agency has resources su?cient o act on every case (and

factors that induce action or inaction are very complicated' pres-mpti*n can e re-tted . )ang-age *4 c*mmand =6s+a))>

H-sticia)e standard

• only by statute or leg. rule – policy stmts cannot rebut (nonbinding)

• says unlop met this standard

• note: incentivi1es agencies to use policy stmts

II' TIFIN# O R$3I$!8. Overview

1' reuirements (&) $nality () ripeness (G) e+haustion2' often means di?cult to get 0udicial review – can tae many years and ! need to

meet all G criteria while govt only has to prevail on one:. Temp*ra) Limits1' generally H years to see review, but Congress often cuts way bac through

statutes2' 8damo Mrecing – permissible for Congress to set 0udicial review period for C88

at GB days(' but if issue was not ripe when rule issued, review is available GB days after

ripeningC. ina)it.

1' if agency action has no immediate legal e7ect, is not $nal (e+ sends to !re1 orCongress for approval)

2' @ranlin v. Aassachusettsi' issue – ept. of Commerce decision re method of taing censusii' holding – n*t /na) agenc. acti*n

a' ept. of Commerce gives t* PreM t* appr*ve, so does not have $nallegal e7ect

' result can never get H-dicia) review b/c !re1 is not agency for reviewpurposes (rare to get review, only if has done something that is


44/67

a' 2 and :CC decisions are not $nal b/c -85 maes di?cult to !8 non"$nal decision K declaring smoing a carcinogen5 no formallegal conseuences, even though very inuential in convincing state govts topass smoing bans

44


45/67

' are decisions under @%@E8 $nal9i' to be sold, pesticides must be registered with >!8ii' >!8 can

a' cancel use of pesticide if $nds that costs e+ceed bene$ts (elaborateprocedures, tae years)

' suspend use of pesticide that present


46/67

' # issue of law not appropriate for 0udicial resolution5 lie Fth 8m.search/sei1ure (complicated, highly fact"dependent area of law)

c' #G – not much hardship in revoe of cert. (but note: ! have cease sellingdrugs)

' e7ects of 8bboti' . $5+a-sti*n *4 Administrative Remedies1' overview

i' doctrine strongest in ad0udication where normally & or appeals availablewithin agency

ii' 8!8 – no reuirement besides ripeness/$nality reuirements of QBF (unlessorganic statute or agency rule reuires petitioner to e+haust intra"agencyreview)

iii'non"8!8 e+ceptionsa' Aadigan

• would cause undue pre0udice to protection of rights at issue

• admin agency lacs power to grant e7ective relief

• e+haustion would be futile b/c admin body is biased

' AcDart – criminal hardship conte+t2. policy

i' allows agency to e+ercise its discretion, apply its e+pertise indeveloping/resolving factual issues

ii' enhances e?ciency, avoids over"burdening agencies and courts with

premature appealsiii'respects agency autonomy as separate branch of govt (e+ecutive)(' H-dge;made e5cepti*n

i' AcDart v. 4- (&*H*)a' facts – Xietnam draft5 AcDart e+empt as sole surviving son, but he refused

to raise issue before agency and declined all opportunities to appeal5 latercharged with felony draft"dodging

' holding – e+cuses AcDart6s failure to e+haust b/c

• admin remedies no longer available

46


47/67

• hardship in criminal conte+t

• issue did not involve fact"$nding, discretion, or e+pertise

• no oodgates, since others less liely to be as foolish

47


48/67

ii' AcCarthy v. Aadigan, BG 4- &FB (&**)a' facts – prisoner sues prison o?cials b/c of unconst. conditions in prison5

doesn6t use admin process in prison that can order conditions beimproved

' holding – not reuired to e+haust admin. remedies b/c damages notavailable in prison admin. proceeding


49/67

C (&**')i' facts – 8%!>C not following campaign $nance law to register as !8C and

disclose (claims not a political org, so not reuired to register)ii' holding ("F) – standing5 in0ury su7ered by every voter is cogni1able when

Congress has created the right and agency has interfered (distinguishes from-chlessinger and Eichardson)

C. )ausation1' speculative or indirect causal relationships don6t count

2' other consideration –i' courts reluctant to tell those with discretion (e+ %E-, 8) to enforce law

betterii' (although before Necler v. Chaney, which said court cannot review agency6s

e+ercise of its enforcement discretion unless statute couples language ofcommand with 0usticiable standard)

(' 8! v. Campi' issue – review of Comptroller of Currency6s decision to allow bans to provide

data processing services to their customersii' holding – standing5 don6t need to show that particular member would lose S

as result of particular ban6s successful e7ort to tae particular customerfrom member


50/67

ii' holding – n* standingK c*-)d n*t pr*ve 4at+er w*-)d +ave paid rat+ert+an g* t* Hai)

50


51/67

. 'edressability 1' -teel Co. (&**')

i' facts – group achieved environ. standing in trial court (in0ury"in"fact tomembers)a' violator stopped practice 0ust before complaint $led (after rec6d notice of

lawsuit), pre"empting in0unction' instead of in0unction, 0udge maes pay civil penalties to 3reasury for

past violations of an environmental statute

ii' holding – P did n*t +ave standing c n* redressai)it.a' payments to govt cannot redress an in0ury to an individual ! caused by

those violations b/c individual obtains no bene$t as a result of payment togovt

iii'note: practical e7ect on violatorsa' since govt agencies don6t have resources, private suits the real threat' potential s can violate, then stop 0ust before decision and avoid any ind

of penalty2' Paidlaw (BBB) ( 0ustice ma0ority)

i' narr*ws Stee) *'a' applies only to violations before $ling of lawsuit

' if comes into compliance during pendency of the case, payment oftreasury would be su?cient to redress in0ury

ii' redressabilitya' *ngress +as discreti*n t* decide w+at remedies wi)) redress an

inH-r.' if put remedies in statute, indication that these will redress

iii'causationa' Fth Cir. (and others) had been reuiring ! to prove that illegal discharges

actually came from s (as part of causation) – very di?cult to prove' but -C234- disagrees

• inH-r.;in;4act is Ps c+ange in e+avi*r

• e+ stopped $shing, etc. b/c of lement of -eparation of !owers=

51


52/67

ii' 3ae Care Clause vests !re1 with e+clusive power to enforce environmentallaws (and other public laws, designed to bene$t whole rather thanindividuals), precludes court from interfering with !re16s discretion

iii'!ierce says F. 0ustices agree

52


53/67

arth %sland %nstitute (BB*)i' facts – !ar -ervice cuts bac on procedural rights of par users to ob0ect to

proposed par changes that would degrade its wilderness statusii' holding () – n* standing 4*r envir*' *rgs

53


54/67

a' must $nd actual individual (not 0ust probability) who wishes to taeadvantage of procedural device and is denied (note: !ar -ervice hase7ectively made sure this doesn6t happen b/c each time & individualwants to comment, they allow them to)

iii'dissent – **U probability that & of members will be a7ected

54


55/67

I3'STATUTOR% STANDIN#8. Lega) Rig+t Test (historical)

1' 8le+ander -prunt V -onsi' facts – rail freight structure regulated by %CC5 pre"e+isting rate structure

favored by -prunt5 but after hearing, %CC found it illegal under statute (b/cunduly discrim) and ordered EEs to change in ways that harmed -prunta' EEs acuiesce, rather than challenge legality of order' but then -prunt sees 0udicial review

ii' holding – n* standing c *rder did n*t vi*)ate its 6)ega) rig+t2' -anders :rothers (after -prunt, before 8!)

i' facts – @CC comparative hearing5 competing station sees review of @CCdecision granting license to new competitor

ii' holding –a' ! has no right to be free from competition' but ! has standing b/c statute confers standing on anyone who is


56/67

3' STANDARDS O R$3I$!8. S-stantia) $vidence Standard =4act;/nding in 4*rma)

adH-dicati*nr-)ema@ing>1' applies to agency $ndings in

i' formal ad0udicationsii' ad0udications pursuant to statutes that e+pressly incorporate it

2' 8!8 BH()(>) reviewing court uphold agency fact"$nding if supported by


57/67

' Eichardson v. !erales, FB 4- G'* (&*&) (Ch. F, p. &&)i' facts – post"deprivation disability hearings by --8 8Ps5 doctors6 written

reports (hearsay) vs. testimony by !6s personal doctor (admiss.)5 8P rulesagainst !

ii' issue –– can hearsay alone be substantial evidence9iii'holding – supported by substantial evidence

a' agenc. can ase its /ndings *n +earsa. evidence t+at w*-)d einadmiss' in n*rma) tria), even i4 c*ntradicted

' --8 hearings meant to be informal/accessible•


58/67

policy – otherwise could have indiv. ad0udications would get more

scrutiny than nationwide rules(' *verview

i'


59/67

a' facts – rule under L3AX-8 reuires all pneumatic passenger tiresretreaded after &*F to have info molded onto sidewall (si1e, ma+inate/load, ply rating, tube, bias, etc.)

' holding – r-)e is A

• party challenging it submitted high uality studies by credible

consultants that rule was unnecessary and impracticable – agency didnot respond adeuately to the studies

• record does not establish that reuirements are (&) practicable5 ()

more than remote relation btwn reuirements and motor vehicle safety(stat. reuirements)

• labeling is necessary, but not permanent labeling would only become factor if retreaded tire resold after a?+ed label

has worn o7 record says nothing about how often this is these case

if rare, might be outweighed by costly/burdensome permanent

labeling re. -ec. asserts, without proof, that these are practical despite

numerous indications that econ. infeasible

' SOTUS ad*pts 6+ard )**@ reviewi' Aotor Xehicle Aanufacturers v. -tate @arm, FHG 4- * (&*'G) (Ch. p. &FB)

a' facts –

• Carter6s LN3-8 issued mandatory passive restraint rule – every car

mareted in 4- had to have either (&) airbags or () seatbelts assumptions

automaers will respond with HBU air bags and FBU automatic

seatbelts these are roughly euivalent in e?cacy

rule will save &,BBB lives per year at cost of S& billion

• Eeagan6s LN3-8 rescinded passive restraint rule before implemented

b/c automaers will respond with &U airbags and **U automatic

seatbelts automatic seatbelts would not be e7ective b/c they would increase

use by only U

• by time of court challenge K automaers opting for automatic

seatbelts (much cheaper)' issue – can LN3-8 rescind the rule mandatory passive restraint rule9

59


60/67

c' holding &' – 4*r p-rp*ses *4 review, rescissi*n amendment iss-ance =a)) get A>

d' holding &( (unanimous) – rescissi*n was A c did n*t c*nsideramending r-)e t* re?-ire airags

• would solve problem of automaers choosing auto seatbelts b/c

cheapere' holding &3 () –

• rescissi*n was A c 4ai)ed t* e5p)ain w+. a-t*matic

seate)ts w*-)d increase -se . *n). X

• studies showed very successful (but agency had distinguished on

grounds that they were studying ignition interloc5 drivers could undothese easily in contrast)

ii' e7ect of


61/67

• d*es n*t +ave t* pr*ve new p*)ic. etter than old policy – 0ustplausible reasons to support agency6s belief

• does not have to apply avoidance canon

• ma0ority doesn6t address issue of whether at direction of pre1

d' dissent (F) –

• agency should have had to apply avoidance canon – here, serious &st

8m. issues with eeting e+pletive rule

•

if change at direction of pre1, should not count as plus note: some argue plus because pre1 more accountable5 some argue

minus b/c agency supposed to be applying neutral e+pertise note: agencies hardly every try to 0ustify change in policy based on


62/67

STATUTOR% INT$RP' IN ADFINISTRATI3$ LA!]]note: uestion of pure statutory interpretation K involve only meaning of words instatute, not applying words to given situationI' T+e Pre;+evr*n Appr*ac+

8. 8!8 QBH and 8arbury v, 8adison – courts decide what the law is5 but what6s theboundary btwn issues of law (for courts) and issues of policy (for agencies)9

:. LPE: v. Nearst, G 4- &&& (&*FF) (Ch. H, p. G)1' facts –

i' LPE8 provides safeguards for


63/67

. :en1ene, FF' 4- HB (&*'B) (Ch. , p. &)1' facts –

i' 2-N8 administered by 2-N (rules) and 2-%C (enforcement actions)ii' how many parts per million of ben1ene can be in closed worplace

a. old rule K &Bppm5 new rule K &ppmb. has serious health e7ects if long"term e+posure at concentrations far

above &Bppmc. but cannot now if has bad long"term e7ects at lower concentrations

(unethical/impossible to study b/c animals inappropriate for long"term andimposs. to isolate from other carcinogens in people)

iii'agency pics lowest feasible amount of ben1ene, that wouldn6t put factoriesout of bi1 – but bi1 disagreed this was feasible

2' plurality (F) – OS"A permits creati*n *4 new standard only i$ OS"A /nds*)d standard created a signi/cant ris@

(' concurrence (Eehnuist) – statute unconst. delegates fundamental policydecisions to politically unaccountable bureaucrats

. other cases from boo1' %n :onanno Pinen -ervice v. LPE:, FF 4.-. FBF, F&G (&*'), the Court

counseled that the agency6s construction of the statute must be a?rmed unlessit is C v. Chenery, GG 4.-. &*F, B–B' (&*F), the Court opined,


64/67

iii'critici1ed, but some studies were positive5 public and e+perts divided (typicalsituation)

iv' new set of rules – Carter W Eeagan adminsa. new de$nition of


65/67

' potential to produce less fractured opinionsN. status of "hevron

1' btwn &*'F and BBB – -C234- said nothing about scope of Chevroni' obviously applied to interps. adopted in legislative rules and in formal

ad0udicationsii' but lower courts di7ered whether also applied to interp. rules, policy stmts,

informal ad0udications, advisory letters, amicus briefs, etc.2' since BBB – -C234- has addressed scope issue several times

(' no consensus, ustices di7er signi$cantly

65


66/67

III'App).ing +evr*n8. "*w )ear is )ear&

1' [ellow 3ransportation v. Aichigan, G 4- GH (BB) (Ch. H, p. GF)2' 8:8 v. @3C, FGB @.Gd F (C Cir. BB) (Ch. H, p. G')

:. T+e T**)s *4 Step 1 Ana).sis1' Chevron, @L *


67/67

i' would apply Chevron to any agency interp. that

Administrative Law - Pierce - Spring 2009_4

Documents

Transcript of Administrative Law - Pierce - Spring 2009_4