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1) The constitution and the Administrative Agencya) The Agencies Power to LegislateA. Administrative Agencies

1. There are a lot of Actors: police officers, department of education people, the DMV, ect. Beaurocrats from all level except those who are elected or appointed as a judge.

B. Separation of Powers Principles1. Outside of certain narrowly defined foreign affairs and military situations, intrusions by executive on private

liberty or property must be authorized by legis.2. Also, doctrine against delegation of legislative power requires that such authorization take the form of rules

that effectively control the admin decision.3. Agencies are part of executive branch, which enforces law.

C. Agency’s Power to Legislate1. Art 1, § 1: “all legislative powers…shall be vested in a Congress of the US…”2. Early cases stated that this legis power, which Const had delegated to Congress, could not be regulated to

others.3. Sup Ct later said that although the power to prescribe rules “in the future is a legislative act… Congress…

might commit to some subordinate tribunal this duty.”4. Functional approach: agency really makes law b/c agency orders are enforced by cts and the statute itself is

not enforced b/c it always must be elaborated by agency.1. Agency Independence

1. Summary of control over agencies:a. Legislative – very minimal; reduced in 1980’sb. Presidential – enormous increase from 1970’s to 80’sc. Judicial (i.e. lower cts) – peaked in 70’s (i.e. Benzene) and minimized in 1980-90.

2. Legislative devices to control admin agencies:1) Amend statute if Congress doesn’t like what agency is doing.

a. problem – statutory gridlock - difficult to amend statute when you have divided gov’t (Pres and Congress each run by different parties)

2) Appropriations statutea. Congress and Pres together can de-fund agency.b. Problem - gridlock

3) Legislative oversight and sub-committee hearingsa. require agency to report and “rake them over coals”

4) Constituent servicesa. Congressional aides call agencies w/specific problems

5) Involvement in appointment processa. esp. w/major officials; Cong can hold up appt.b. controlling who runs agency; influencing tenure in office, criteria for retention and dismissal.

6) Statutory restrictions on Pres’ removal powers7) Legislative veto power (struck down in 1980’s)8) Admin agencies have lots of control b/c of “disabled/divided” Congress. While Congress has been

weakened and disabled, the Pres (WH) has enormously increased its power since 1980’s.i) The Non- Delegation doctrine

(1) Schechter Poultry Corp . unconstitutional delegation of legislative power. Nat’l Industrial Recovery Act designed to ease depression and stabilize wages and prices. The President was given the power and sub delegated to the members of the industry members codes of fair competition. Here, the NIRA doesn’t provide the adjudication and makes everything illegal unless it is specified by the NIRA rules that are created by the industry members, with no limit.

(2) Industrial Department, AFL-CIO vs. American petroleum Institute. The Modern Non-Delegation doctrine Benzene Cases (1980) OSHA delegates broad authority to Secretary of labor to promulgate different kinds of standards. Sup Ct held this was unprecedented amount of power given to admin agency, but instead of ruling on constitutional grounds, it interpreted the statute. Plurality interpreted statutory provisions narrowly and held that OSHA must show that the existing chemical exposures to workers

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presents a “significant risk” to health before it can impose new standards. This is a non deferential aggressive construe of the statue to avoid the non delegation doctrine. Note: Carter was president and outsourcing had just started. (a) As a lobbyist you don’t want a stronger non-delegation doctrine, because you can influence the

congress easier than the Administrative Agency. Also, as a member of congress- you want the statue to be general so you can take credit for the good things and blame the bad on the administrative agency that implemented the statue.

(3) American Trucking The court said that the EPA had not set guidelines that were easily understood. This is wrong b/c the real issue is whether the statue was specific enough. This confusion came from the opinion itself. It gives 3 functions of the non delegation doctrine, but Scalia disagrees he says #1 is the only function and the other two are happy side effects. non delegation doctrine is a doctrine that applies to congress. And makes them identify problems, set up ways to address it and set up means to do that. He says there are no rules, its just a judgment.(a) When there is a non-delegation problem and it looks like there is a case that is challenging the

president for giving too much discretion—the courts aggressively construe the statue to avoid the non-delegation doctrine.

(4) Whitman v. American trucking - When conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform the Supreme Court read the statute as “requiring the EPA to set air quality standards at the level that is “requisite”–that is, not lower or higher than is necessary–to protect the public health with an adequate margin of safety,” and so concluded that the scope provided by Congress for the EPA was “well within the outer limits of our no delegation precedents

ii) The Legislative Veto(1) INS vs. Chada - it looks like judicial review of the Atty generals decision in the case. The house was

exercising judicial powers when it tried to overturn the deportation. Under Powell’s analysis it looks like only legislative review of adjudications would be out. When courts use formal type considerations there is a lot of judicial flexibility ad way for them to decide how they want the issue to come out. White uses the functional approach. Similar to the O’Connor in the FTC case. He says that the constitution sets up checks and balances and not serration of powers. He concludes that most functions are joint exercises of the different branches. Result of Chadha: all legis veto provisions, even if requires both houses, is struck down b/c fails presentment requirement.- if provisions are severable, then only provision is gone. If not severable, whole statute is gone. Thus,

cts have held provisions is severable.- this is really a great delegation to President b/c Congress can no longer review the Pres’

administrative agencies’ decisions.(2) Presentment Clause - for resolution to be legally operative, it must be presented to the Pres. for

approval/disapproval separation of powers.(3) Bicameralism Clause - no law can take effect w/o approval of both Houses so that laws could not be

enacted unless it had been fully considered. Congress must do everything in a bicameral process except as put forth in Const. H of R power to impeach; Senate conducts trial after impeachment; Senate advise & consent authority; Senate power to ratify treaties.

(4) "Congress must abide by its delegation of authority until that delegation us legislatively altered or revoked." Congress must follow procedures in Art. I or it is encroaching & interfering w/ executive authority given to Atty. Gen. Const. restraints intended to erect checks on each Branch to protect the people from improvident exercise of power.

(5) Legislative Veto- a statutory provision that says that a particular agency action will take effect only if congress does not nullify it by resolution within a specified period of time. This gives congress oversight of the agency decisions especially if agencies acted under statutes that gave them broad discussion amounting in practice to a form of lawmaking. The elements are:(a) a statutory delegation of power to the executive(b) an exercise of that power(c) a reserved power in the congress to justify that exercise of authority

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b) The Executive and the Agencies3. Executive and Agencies

0. Pres’ power to check administration agencies:1) Pres part of statutory enactment process (presentment clause and only 2/3 vote can override)2) Budget appropriations (originate in House but prepared by WH)3) Appointments

a) high officers appt w/advise and consent of Senate4) Dismissal

a) Myers, Humphreys, Bowsher – looks like limitations on Pres’ dismissal power are being rejected, and thus expanding Pres power.

5) Executive Ordersa) Nixon – turned OMB into super-agency w/power to control what all other agency’s did.

1. IntroductionA) Office of Management and Budget – has management power over fed’l admin agencies (i.e.

appropriations requests for fed’l agencies funnel thru OMB).a) no judicial review of OMB’s decisionb) OMB reviews and determines whether rules promulgated follow criteria, if not, send back to

agency.B) Executive Order 12,291 – Reagan

a) required agencies which promulgated regulations to prepare regulatory impact statements and funnel thru OMB

b) “benefits of regulation must exceed costs”- many projects flunked cost-benefit tests. Wonderful device for downsizing govt.

c) quantification required, but not equal distributiond) not judicially enforced.

C) Executive Order 12,866 – Clintona) Office of Information and Regulatory Affairs now coordinates agency regsb) Not so much concerned w/quantification, but must be equal distribution

D) Paperwork Reduction ActE) Presidential v Congressional control over administration.

F) Under Myers, Humphrey’s Executor, and Weiner, federal employees who perform:1. “Purely executive functions” (e.g., State Dept, Dept. of Defense, Dept. of Commerce, Dept. of Labor, Dept. of Energy, etc.) can be removed at the President’s discretion (Myers)2. “Quasi-legislative/quasi-judicial functions” (e.g., FTC, FCC, FRB, SEC, NLRB, ICC, usually commissions etc.) can only be removed for cause, because these agencies are intended to be independent (Humphrey’s Executor)3. “Inferior officials” (e.g., political civil service, protected civil service, special statute protected) can only be removed for cause (Weiner)

o The Appointments Clause provides that the pres, w/ the advice and consent of the Senate, appoints officers of the US, and Congress may specify that inferior officers are appointed by the pres alone, by the heads of departments, or by the courts of law. Article 2 sect 2 clause 2. (most gov’t employees are civil servants ad are not covered under the appointment clause.) there are about 1400 high level that require president, and of these 1150 require the senate approval too.

o Principal Officers: High-level officials in the executive branch and heads of independent agencies. Cabinet members and commissioners of independent agencies are principal officers b/c there’s no one in the government hierarchy between them and the pres. By Prez with advice and consent of Senate

o Inferior Officers: Lower-level executive officers who are under the supervision of other executive officials beneath the pres. They act on the authority of legislation.

o Purely Executive: Advice and consent of the Senate Required for appointment, removed at prez discretion. Including: Cabinet level members & subordinates, Secretary of state, commerce, agriculture, interior, Atty general, Administrator of EPA, OSH (makes policies), Director of FBI and FAA.

o Policy: We seem to want to limit the political influence on the commissions because they are seating the rules for many things and we need those to stay as non-partisan as possible. There seems to be a decision

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to integrate some of the departments, for example state and defense—that you need to be on the same page. But the Independent Agencies you want to make decisions for themselves and stay some what neutral and consistent.1. What’s at stake? Control

a. Executive agencies – they have must more accountability. Pres can change agency commissioners at whim. Each Pres changes agency composition.

b. Congressionally controlled agencies – aren’t as accountable. Don’t change as often.2. Why structure agencies as was done?

a. Presidential control – these agencies can change more easily.- these agencies need to coordinate w/others depending on current state, so needs to be

flexibilityb. Congressionally control – need consistency w/these agencies (i.e. NLRB)

- want only incremental control w/in these agencies and w/their regulations and adjudications.- these agencies set-up rules and make adjudications (largely for private conduct) , and thus

need continuity and stability- b/c setting up rules, these agencies need to be insulated from other things (i.e. Pres, economy)

i) Appointment of Officers(1) Buckley vs. Valeo- supports the unitary executive theory—meaning that executive powered should not be

fragmented so that one person can be held accountable for action of the executive. If President alone is accountable, then he must have the power to remove those whom he feels have not enforced the law properly.

(2) Freytag- Tax Court’s special trial judges are “officers of the U.S.” because they “perform more than ministerial tasks” and with “significant discretion”

(3) The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

(4) Vacancy must exist though need not arise during Senate recess. Recess appointments can be made during intra-session recesses as well as during recesses between Congressional sessions if not “too short”.

ii) Inferior Officers(1) Edmond v US Court moved away from Morrison factors and looked exclusively at whether the officer in

question is supervised by a principal officer to determine if he’s a principal or inferior officer. If he is supervised by someone, he’s an inferior officer. If not, he’s a principal officer. They were held to be subordinate and inferior officers. This case was about the coast guards court of criminal appeals. Here, they were appointed by the department of transportation. RULE NOW.

(2) Free Enterprise fund the Supreme Court found the appointment provisions (by the SEC) of the act constitutional, but struck down the for-cause removal provision, and the court wants the SEC to be able to remove them at will. This makes them inferior officers. The Court did not accept petitioners' argument that the constitutional infirmity made all of the Board's prior activity unconstitutional; rather, it simply severed the for-cause removal clause from the rest of Sarbanes-Oxley, leaving the Board itself intact. A department is a free standing agency that is free standing and self contained. Here, the court considered the SEC to be a department

iii) Removal(1) Myers vs. US- S Ct held that President’s power to remove is unfettered unless the officer has quasi-

judicial character meaning the powers affect the interests of individuals & the Pres. cannot control this decision. Otherwise, this would violate due process of parties before officer. But Pres. can still remove officers after they had decided case. Allowing broad power of removal means Executive can act in unity & coordination which is essential to effective action.

(2) Humphrey’s Executor v. US Sup Ct held that FTC commissioners (And other Quasi-legislative/ Quasi-judicial agencies) may not be removed prior to expiration of their term except for one of the causes enumerated in statute. Myers is confined to purely executive officials. P alone has power to remove purely executive officials. Quasi-legislative/quasi-judicial functions – Congress can limit Pres’ power to appt and dismiss (i.e. terms, criteria for appt and dismissal). Referred to as 4th branch of gov’t – insulated

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from Pres, but not from Congress. Here, FTC is quasi-judicial/legis body and says that Humphrey is not a principal officer.

(3) Weiner v. US (1958) – more expansive in limiting Pres’ removal power. Eisenhower fires Weiner, a member of War Claims Commission. Members were appointed by Pres w/advice and consent of Senate. Congress made no provision in statute for removal of commissioners. Eisenhower removed W and W sued for back pay. Eisenhower cannot remove member of commission simply b/c he wishes to install his own appointees. Pres doesn’t have inherent power to fire, discipline. Pres’ doesn’t have unlimited power to remove even if statute doesn’t explicitly limit his power

(1) Morison vs. Olson - Sup Ct upheld statute giving ct power to appt “independent counsel” who would investigate crime and prosecute high-level political officials. AG must appt IC to investigate allegations unless she is ready to say that there is clear and convincing evidence of no grounds of illegality. The court took functional approach. They said he was an inferior officer and thus the president can not get rid of the Independent council. In the dissent- Scalia says its more like Meyers than Humphries. (a) Formalist approach: IC is executive, but insulated from Pres’ control.(b) Functional approach: can’t expect White House to go after its own, so need scheme to enforce laws.(c) After the Clinton Impeachment- Most ppl agree with Scalia and this is why the statue was not

renewed that creates the IC.(d) Test:

(i) subject to removal by a higher Exec Branch official(ii) empowered to perform only specific limited duties(iii) office of limited jurisdiction.

(2) Free Enterprise fund - the Supreme Court found the appointment provisions (by the SEC) of the act constitutional, but struck down the for-cause removal provision, and the court wants the President to be able to remove them at will. This is because the SEC board people can only be removed for cause they are a quasi-legislative, quasi judicial officers, thus creating two layers of removal for cause. So, the Presidents removal power is limited. Two layers of for cause removal is too much. The president would not be able to remove. The court holds them as inferior officials so the SEC can now remove the board at will.

(3) Bowsher vs. Synar- The court held that the comptroller general couldn’t exercise authority under the laws of the US and thus couldn’t establish potentially binding spending reductions under the Balanced Budget and Emergency Deficit Control Act of 1985. The court held that this would violate the separation of powers b/c congress would be interfering in the execution of the laws through the power to participate in the removal of officers of the US. Congress had specified that they would choose 3 candidates, that they only get one term, that they had to be appointed by the senate, and the President couldn’t remove except for cause—AND a joint resolution by Congress. Congress may restrict removal of administrative officials to “good cause,” But can not require the president to get joint approval to remove.(a) separation of powers is open to multiple outcomes, because the justices see different actors, the

powers or the encroachments in different ways. (4) Clinton vs. City of NY - Line Item Veto act permitted President to sign an overall, larger legis package but

in subsequent exec action to cancel certain defined and limited types of kind statutory items w/in criteria set forth. Holding: LIV Act unconstitutional. CT, using formalistic approach, characterizes the cancelling process as legis in nature b/c it is dealing with statutes. If cancelled, then statute isn’t what House and Senate voted on. Congress didn’t really vote for what turned out to be the statute. Also, can’t tell if Pres really signed statute b/c he did w/respect to some, but not all parts.

2) The Scope of Judicial Review o Options: Is this an issue of law or fact?

o If fact, defer to the agency as long as its supported by substantial evidence. Universal Camera o If its law, then the next step is to decide: Does the agency administer the statute? Did Congress

intend the agency to have such authority as to encompass taking action that would have the binding force of law?

If the answers are yes then go to chevron step one. If no Skidmore.

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Skidmore- the factors for determining whether or not to defer: the thoroughness evident in agency determination; validity of its reasoning; its consistency w/ earlier & later pronouncements; & all other factors giving agency power to persuade.

Chevron Steps: o (1) Has Congress spoken unambiguously through a statute to the issue at

hand? (Look for ambiguity by looking through legislative history, the language of the statute, traditional rules of statutory construction.

If yes- the statute controls and the analysis stops. If no, go to 2

(2) Is the agency’s interpretation reasonable?o If yes court deferso If no, No deference

a) Review of Questions of Fact= substantial evidence i) NLRB vs. Universal Camera 2 - Holds that circuit courts are to be less deferential and more independent.

Can’t just look for scintilla of evidence – must determine if substantial in relation to entire record. The court uses a sliding test- the more evidence that discounts and agency finding the less likely it is to be sustained. Included in record are Hearing Examiner’s findings, reports and opinions. Power going to Hearing Examiners b/c cts are not to look more at Hearing Examiner’s findings. In order for Board not to be reversed, it must give deference to Hearing Examiner. Board getting squeezed.

ii) Allentown Mack - S. Ct says the ct of appeals is right, and there was an unfair labor practice. They kind of based this opinion on the fact that the statements were made during an interview and Allentown should have known that these men were saying what they thought they needed to get a job. So, the vote was not based on objective considerations and should have not been taken. The NLRB’s rule of thumb that what is said about unions during a job interview is unreliable. The court was non-deferential to a rule of thumb, needs a case by case review. The court found that the did not have substantial evidence for its findings to conclude the that reasonable doubt did not exist for lack of agency support. (1) The Allentown Mac Move-

(a) The lawyer representing a party who lost before the agency focuses on a “finding of fact” which is based on the agency’s application of some rule-of-thumb respecting the evidence, e.g., that statements made in the course of job interviews do not constitute “objective” grounds for an employer’s doubt about support for a union.;

(b) The reviewing court is convinced to pull that rule-of-thumb out as a device for “disguising policy-making as fact-finding” and non-deferentially rejects it (on substantive or procedural grounds).;

(c) The reviewing court then reconsiders the evidence (in light of its rejection of the rule-of-thumb), determining that the agency’s finding was not supported by substantial evidence.

(2) Effect of “The Allentown Mack Move”(a) The reviewing court rather than the agency makes the decision on the rule issue (relative empowering

of reviewing court), and(b) The policy issue is decided on a case-by-case basis rather than by rule, thereby reducing the “rigidity”

(and so also the “predictability”) of the statutory-regulatory structure.iii) Woodby vs. INS- CT says that the burden of persuasion is “clear, convincing and unequivocal evidence.” Ct

say burden required was same as in denaturalization and expatriation cases b/c “immediate hardship of deportation is often greater than that inflicted by denaturalization. Ct worried about favored and disfavored aliens, concerned w/fact-finding abuse. See a need for a more formal basis.(1) Woodby Move-

(a) The lawyer representing a party who lost before the agency focuses on a “finding of fact” by the agency under which a critical procedural decision, e.g., the burden of persuasion, whether gov’t witness must testify orally, was made on a case-by-case basis;

(b) The reviewing court is convinced to pull that buried procedural issue out and to treat it as a question of law;

(c) The reviewing court non-deferentially decides that question of law (perhaps as a matter of ‘procedural due process’, perhaps as a matter of statutory interpretation), thereby fashioning a rule respecting the procedural issue which is applicable to a broad class of cases before the agency.

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(2) Effect of “The Woodby Move”(a) The reviewing court rather than the agency makes the decision on the procedural issue (relative

empowering of reviewing court), and(b) The procedural issue is decided by rule rather than on a case-by-case basis, thereby reducing the

“flexibility” (increasing the “rigidity”) of the statutory-regulatory structure.iv) Richardson - SCt says that this is not a constitutional deprivation of due process to allow findings on this

evidence b/c: 1) disability $ is not a guarantee, but a privilege and thus Congress can set it up any way it wants; 2) these are objective physical tests; not concerned w/manipulation or deceit; and 3) not allowing hearsay evidence would make it much more time-consuming.

v) EXAM--- if there is a finding of fact- then you should talk about “is this a Woodby or an Allentown move. If we loose which route do I take? If you are the agency which move do I want to resist? consider that most of the time courts have a choice whether to frame it as a finding of fact or of law.

vi) APA (1) §706 —The reviewing court shall … (2)(E) hold unlawful and set aside agency action, findings &

conclusions found to be unsupported by substantial evidence in a case subject to §§556 & 557 or otherwise reviewed on the record of an agency hearing provided by statute

(2) In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be given to prejudicial error.

b) Question of Law- What kind of law or rule? i) Before Chevron- Law or fact?

(1) US vs. Fifty-Three Elcletus Parrots - US customs seized the birds b/c of statute stating that any country laws which bans exporting wild birds will result in US seizing the birds. P claimed parrots were not wild & that statute did not apply, while gov’t claimed they were wild if other country said they were. 9th Cir. agrees w/ gov’t finding the case was mixed question of law & fact t/f questions of law within court’s jurisdiction. Each particular parrot- q of fact. These particular objects- you need a proceeding to go into evidence about each item (bird). A category of tings are a things under a statue--there is a policy that stems from this—and it is a question of law.

ii) Skidmore(1) Skidmore vs. Swift - fireman brought suit against co. seeking overtime for “waiting time.” D Ct found as a

matter of law that overtime didn’t apply to waiting time, while Administrator had given his preference for a flexible rule & not an all or nothing one.(a) S Ct rev’d. Administrator rulings are not reached as a result of adversary proceeding, but rulings are

made in furtherance of an official duty & are based on more specialized & broader investigations than is likely to be before a judge. Rulings, interpretations & opinions of the Administrator are not controlling under the Act, but they are a body of judgment that courts should look to for guidance.

(b) Factors used to determine how much deference should be given are: the thoroughness evident in agency determination; validity of its reasoning; its consistency w/ earlier & later pronouncements; & all other factors giving agency power to persuade.

(2) NLRB vs. Hearst - When agency makes an initial determination, the reviewing court should defer to it if it has “warrant in the record” and a reasonable basis in the law. When agency is applying a broad statutory term initially, the court’s reviewing function is limited. Justifications for deference are that Congress gave agency responsibility to make determinations & agency has expertise & experience in the matters so it more likely to get the correct answer.

(3) Packard Motor Company - Issue was whether or not foreman were considered employees or managers. Court found that nothing in the act prevented someone from being both and employer and an employee. So the court treated this as a question of law and not fact and since courts are experts on statutory construction this was properly interpreted by the courts. (a) Hearst & Packard: they came out different b/c courts were differential in Hearst but not Packard. The

reason is Hearst the dispute was whether the specific employee fell within an agreed upon term—so it was a question of fact. In Packard the issues was whether the foreman were employees, a broad general category which made it a question of construction which makes it a question of law.

iii) Professor Davis’ “legislative rule”/“interpretative rule” set-up for statutory cases

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(a) A rule is a “legislative rule” if it is “the product of an exercise of delegated legislative power to make law through rules”.

(b) A rule is an “interpretative rule” if is “a rule an agency issues without exercising delegated legislative power to make law through rules”.

(c) “Legislative rules” are “controlling upon courts” if constitutional, if within the granted power, and if properly issued. (‘consistent’/‘permissible’ construction of statute?)

(d) “Interpretative rules” are “not controlling upon the courts” but may have “power to persuade” (‘independent’ judicial construction of the statute?)

(2) Holly Hills Non-deferentially held that statute required map-based decision and not based on # of EEs. It appears to be legis rule, but ct is non-deferential. All cases are mixture of both legislative and interpretive. Here, frankfurter says that he would defer but the Administrator went above his ability. He used numbers to define an “area” and thus Congress did not intend numbers or they would have used it. Frankerfter says this—(remember the statue says ‘as defined by the administrator’) So he really doesn’t defer. Ct using labels to defer and not defer on functional grounds:

(i) is there area where you need uniformity(ii) will there be lots of conflict – “balkanization”

iv) Chevron (1) Chevron USA v. NRD - Case concerns interpretation of words “stationary source” in 77 amendments to

Clean Air Act. Statute requires states to develop air pollution plans that “require permits for the construction and operation of new or modified major stationary sources” in accordance w/strict standards. EPA promulgated rules that allowed states to define an entire plant, containing many different kinds of pollution-emitting units, as if it were a single stationary source. EPA allowed the states to treat each plant as if a bubble were placed over it; the owner would remain free to act as he wished w/in the bubble as long as the total emissions from the bubble, considered as a source, become no worse. The DC circuit looked at the statute and said the bubble policy was incompatible with the purpose and there was no deference to the agency. Holding: S CT held that EPA’s bubble policy was a permissible construction of the statute. Stevens writes the Majority here.(a) Ct reviewing agency’s construction of a statute must ask:

1) Step #1- Has Congress directly spoken to the precise question at issue?a) Yes – If CT is able to tell what Congress said, then end of matter. If agency’s actions are

consummate w/Congress.- FN #90 – The judiciary is the final authority on issues of statutory construction and must reject administrative constructions that are contrary to clear congressional intent. If a ct, employing traditional tools of statutory construction ascertains that Congress has an intention on the precise question at issue, that intention is the law and must be given effect. (the rule has to be consistent with the statute.)

b) No (if statute is ambiguous or vague) – go to prong #2.2) Step #2- Is the agency’s answer to the question at issue based on a permissible construction

of the statute? (deferential to the agency)a) Yes – a ct may not substitute its own construction of a statutory provision for a reasonable

interpretation made by an agency.b) by not expressing its intent, Congress is giving agencies the power to construe statutes by

regulation.c) such legis regulations upheld unless arbitrary, capricious, or manifestly contrary to

statute.d) Note: up to this point, S Ct has not rejected agency interpretation based on prong #2

(although some lower courts have held against agency based on #2). Once it makes it past #1, then S Ct will uphold. IF you really limit your look to the statue and legislative history than you almost always get past step 1. Then you are on step 2, which is very deferential. These agencies are Meyers (Presidentially appointed) agencies. They are administration initiated and authorized rules and interpretations and this says to the courts--- back off because this is an executive function and they will prevail. This gave

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the Whitehouse more power to initiate policy, and the court says that this is ok because if people do not like his policies they can vote him out during an election.

e) Effects of Deferential Chevron: f) A very substantial empowering of agencies (and, ordinarily, the White House) and a correlative

disabling of the lower federal courts;g) Increased statutory/regulatory flexibility as agencies are able to alter rules without the need for

statutory amendments when conditions, priorities, policies, and Administrations change (and so also a relative empowering of the White House vis a vis Congress-by getting them to amend the statute);

h) More centralized and uniform statutory/regulatory structures as agencies fashion rules that apply across the entire country (as against the many “conflicts between the Circuits” and the many “conflicts within the Circuits” that arise with non-deferential judicial review of agency interpretations of statutes).

i) this allows for a lot of ‘on the ground’ changes w/o having to amend the statute. This allows each administration to change the way things are done and do them their way. And now they don’t have to work with congress on getting their way. This has led to the increasingly powerful President and a weaker congress. (Also consider that there is no leg veto, OMB oversight and other things have lead to a weaker Congress. Since mid 1980’s.

v) Difference between deferential and non-deferential (1) If you want the court to defer- you want them to take the easy route and say the statute has the

ordinary meaning. BUT if you don’t want the court defer to the agency then you say that they should use all of the traditional tools of statutory construction to figure out what they think the statute says.

vi) Non-deferential Chevron(1) INS v. Cardoza Fonseca (1987)- §243 forbids AG from deporting alien “if AG determines that such

alien’s life or freedom would be threatened” for reasons such as race, religion, nationality, or political belief. §208 permits AG to grant asylum to an alien who does not wish to return home “b/c of a well-founded fear of persecution” for similar reasons. INS has long held that the alien must satisfy requirements under either statute w/“more likely than not” proof. INS argues that the statute is ambiguous, therefore, under Chevron, SCt should defer to agency. The INS interpretation is wrong. Issue: Is the interpretation of the 2nd statute correct? Did Congress intend the 2 standards to be identical?

(2) Holding: S Ct rejects INS interpretation and uses statutory construction tools. Stevens is the Majority writer here. using traditional tools of statutory construction, SC concluded that Congress did not intend the 2 standards to be identical. used FN #1 on pg 282 ‘the judiciary is the final authority on issue of statutory construction’ to eviscerate Chevron.

(3) New test:(a) Prong #1 – If a court, employment traditional tools of statutory construction, ascertains that Congress

had an intention on the precise question at issue, that intention is the law and must be given effect. See footnote #1 pg 282

(b) Prong #2- if the statue is silent or ambiguous with respect to the specific issue… whether the agency’s answer is based on a permissible construction of the statue. (same as deferential chevron)

(c) Effects of Non-Deferential Chevron: (d) A relative empowering of the lower federal courts and a correlative disabling of the agencies (and,

often, the White House);(e) Reduced statutory/regulatory flexibility over time as agencies must ordinarily seek statutory

amendments to alter rules (and so also a relative empowering of Congress vis a vis the White House);(f) Less centralized and uniform statutory/regulatory structures as there are many “conflicts between the

Circuits” and many “conflicts within the Circuits” as lower federal courts interpret statutes differently (with concomitant opportunities for regulated parties to forum shop among and between the Circuits)

(g) This way empowers congress because the Whitehouse has to get their help when making changes. There will be more conflicts among the circuits. This is the basic structure you now have.

After Chevron: Doing the Analysis (4) Chevron Step Zero, Skidmore deference

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(a) US vs. Mead - In 1993, customs officials issued a ruling letter, classifying Mead’s (D) day planners as diaries, requiring them to pay a tariff. When D protested, custom’s headquarters released new letters explaining why they had changed their practice. Although Customs had authority from Congress to issue regulations to establish procedures for the issuance of binding rulings, ruling letters responded to transactions of the moment, were not subject to notice and comment before issuance and did not have to be published, but rather, only open to public inspection. Agency did not use the authority given to it by Congress. Therefore, remand to agency to see if agency should be given deference under Skidmore. If agency is given rulemaking authority or the ability to determine rights through adjudication, then good indication that Congress intended to give agency this power. But if given this authority and don’t use it, then don’t get Chevron deference

(b) Barnhart vs. Walton - interpretive rules will sometimes get Chevron deference. In dictum, Ct stated that Chevron deference can apply to interpretive rules promulgated informally, so long as the totality of the circumstances suggest an implicit congressional delegation of law-interpreting authority(i) Relevant circumstances to be considered:

1. interstitial nature of the legal question2. related expertise of the Agency3. importance of the question to the administration of the statue4. complexity of that administration5. careful consideration that Agency has given the question over a long period of time

(c) Gonzales vs. Oregon- The US Supreme Court found that Congress' intent was clear and that the purpose of the CSA was to regulate criminal activity and illegal drugs. Under the standard established by Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)), when Congress' intent is clear, there is no room for Agency interpretation of the Statute.

(d) Long Island Care at Home v. Coke - the Supreme Court granted Auer deference to an internal advisory memorandum interpreting the scope of the domestic companionship exemption. The initial proposal that indicated that the agency was considering the matter was sufficient notice b/c it was reasonably foreseeable that it would be decided differently(i) Interpretation- look at words and their meanings. Easy cases could be decided: if the case falls

within the core meaning of the word or phrase then apply the rule to the case that falls under it. The hard cases: where a rule runs out (like modifying its habitat –is that harm?) indeterminate pernumbra of the statutory language then the person who is doing the applying is interpreting the statue. So the judges really have no choice but to interpret the statue clearly in order to make law. So then the question is who should make the law—a judge or an agency. LITERALISM, FORMALSIT STYLE. Deferential chevron—step 1, non deferential step 2

(ii) Statutory construction- you look at goals, ends, purposes, ect. What is the statute built to do and how does it do it. Don’t look to the words—but the policy. Easy cases are where it is clear that one decision advances all goals and doesn’t undermine any of them. The hard cases are some goals are advanced and some our undermined. So the decision has to be what is the most important goals and what decision would advance those important ones. So this isn’t really a choice between judge or agency but seen as who is in a better position to fashion the rule given both perspectives. This is a court acting as an overseeing approach. GRAND STYLE

(5) Chevron Step One(a) Babbitt vs. Sweet Home Chapter -Majority is more functionally oriented—agency’s interpretation is

reasonable and within ordinary understanding of what “harm” might mean. Endangered Species Act make illegal to take any endangered species; “Harm” was included in definition of “take” in the statute. Dept. of Interior issued regulations defining “harm” to including the modifying of habitats which resulted in the killing or injuring of wildlife as a result of impairing animals’ breeding, feeding or sheltering. Statute is sufficiently ambiguous so as to include habitat modification under the word harm. Words in a statute take on meaning from the words around it; all of the other words around the definition of “take” include purposive actions designed to reduce an endangered species b/c of human control. Language of the statute show that a taking can include something that is not being purposefully done

(b) MCI Telecommunications Corp v. American Telephone - SC rejected FCC’s rule, non-deferential chevron. Ct said there is no ambiguity in statute. “Modify” means incremental change and this rule

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fundamentally changes everything. Scalia uses 9 different dictionary definitions of modify and says that the dictionary used by the petitioners is wrong. The dictionaries should be used is the “ordinary meaning that was there at the time the statute was enacted.” Under prong #1, FCC interpretation fails. Not a “litmus test issue.”

(c) FDA vs. Brown and Williamson - the regulation limited the sale or advertisement of cigarettes. The FDA said that this regulation came out of the FDCA as amended. The SC takes the non-deferential chevron approach but doesn’t apply the literal meaning (bc then they would have to agree with the reg). So basically, they strike the regulation using the grand style and goes to the legislative history of not only the FDCA but other statutes as well. Also, they look to the structure of the statute—and say that then the statue would require the ban of the sale of tobacco all together. So they do what they have to in order to find the result they want. Bryer here says- if you look at the FDCA- cigarettes fall within this meaning! It is clear.

(6) Chevron Step Two(a) Entergy Corp (b) Ohio Department of Interior- Various groups sought judicial review of the natural resource damage

assessment regulations promulgated by Interior Dept. Attacking regulations as impermissible interpretation under Chevron. Holding: 1) lesser of rule provision – invalidated as impermissible; 2) hierarchy of assessment method – invalidated as impermissible; 3) contingent valuation – upheld. CT says nothing in CERCLA which speaks to this issue, so it passes prong #1 and goes to prong #2. Under prong #2, Ct, non-deferentially, sets a range a possibilities which would be ok. The problem is that here the provisions don’t fall w/in the range of options.

(c) National Cable and Telecommunications vs. Brand X- agency interpreted a statue. The question was does the judiciary’s previous interpretation of that statue get a sare dicisis? The court said that only if the court said that their opinion was the ONLY way to interpret the statue. But if the court never said that then chevron may kick in.

b) Other methods of Judicial Reviewi) “The Kent v. Dulles Move”

(a) The reviewing judge looks to see whether a “dear, dear interest” is injured or put at risk by the agency action;

(b) If the answer to (1) is ‘yes’, the reviewing judge looks to determine whether Congress in enacting the statute authorized the agency (expressly or by implication) to injure that “dear, dear interest” in the way the agency has injured it;

(c) If the answer to (2) is ‘no’, the court holds that the agency has acted beyond its authorized powers (ultra vires), that the agency action is therefore void, and that the decision on the matter is remanded back to Congress to deal with by statute.

(d) Dear dear interest: apply a regulation retroactively, availability of judicial review, where an agency attempts to apply its regulations outside of the US or when it is attempting to apply its regulatory requirements at the state level, when agencies try to regulate native Americans.

(e) Where these interests are involved congress needs to be specific in there delegation of power. (f) Effect of “The Kent v. Dulles Move”

(i) The reviewing court strikes the agency action while avoiding the heat of non-deferentially using heavy-duty Constitutional weapons, (though perhaps only until a later day);

(ii) The tough policy issue is allocated to Congress and the President, jointly, to decide by way of enacting or amending a statute;

(iii) A large measure of policy flexibility over time is accommodated as the decision on the tough policy issue is decided by statute rather than as a Constitutional matter and so can be changed by statute rather than by amending the Constitution or convincing the Court to overrule itself on a Constitutional question

ii) More Types of Admin law strategies taken by Judges to uphold or turn over a Admin agencies interpretation of statues (1) Statutory interpretation model: (Llewellyn’s Formal. Ordinary language, meanings)

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(a) The language of the statute is clear- easy case. The language is indeterminately- hard case. They are elaborating on the staute—there would be a question of who is ultimately making law. This gives the Administration law making power.

(2) Statutory Construction model: (Llewellyn’s Grand. Purposes goals, means-ends. The language carries out all purposes are carried out with the terms- easy case. The language caries out some purposes but undermines others in the statue- hard case. – the task is looking generally at the statue as whole and its regulatory structure that has been developed up till now. (a) Statutory Construction Tools (lots of machinery the reviewing Ct could use to say that Congress has

spoken re: statute):1. use of dictionary – to define terms (i.e. Scalia)2. use of legislative history – to determine intent and definitions3. plain language of statute4. agency’s interpretation of statute – if agency has interpreted right after enactment, may assume

that agency was working closely w/Congress and its intent reflects Congress’.5. expertise6. statutory purpose – look at purpose as elaborated in its structure; ask whether this interpretation

relates to its structure. Look for subsidiary purposes and then look to see what the statute is doing with those purposes. (also the structure may help)

7. Maxims:i) expressis mious exclusis alterius – if statute deals w/one thing but not the other, then the other is

not intended to be included in statute. And exclude those that are not mentioned.ii) noscitur a socus – understand the meaning of word by looking at words nearby.

iii) The Arbitrary and Capricious Standard and the Hard look review doctrine(b) Citizens to preserve Overton Park -Fed’l Aid to Highways Act – prohibit Secretary of Trans from

authorizing use of federal funds to finance the construction of highways thru public parks if a “feasible and prudent” alternative route exists. If no such route exists, Secretary can approve construction thru parks only if there has been “all possible planning to minimize harm” to park. Citizens challenging approval of $ to build highway thru Overton Park alleging that there was no formal finding that proposed route was “feasible and prudent.” Holding: SC held against Secretary and for Citizens. Overton Park technique: Ct construed Act to require that: 1) parks are to be regarded w/special importance; and 2) there be a particularly good reason to take park. Ct rejects approval of funding for highway, not on merits, but on basis that Ct doesn’t have enough info on whether agency satisfied stringent statutory requirements.(i) Agency action will be found not to be an “arbitrary, capricious, abuse of discretion” only if the

agency did what the ct construed under step 1 as necessary under statute.(ii) If court can’t tell whether agency did what it was supposed to or considered required factors, then

it can’t say that it’s not “arbitrary, capricious, abuse of discretion”, so remand back to agency.(iii) Agency must either create record to prove that they adhered to statute or be able to sufficiently

satisfy the ct w/its rationalizations.(iv) Ct will set aside decision unless the agency convinces ct that it did what was statutorily required.

(c) Massachusetts vs. EPA- Mass petitioned the EPA to regulate greenhouse gases. The standard the court uses when reviewing the denial of a petition by an agency is arbitrary and capricious. Found that the EPA’s decision to commence a rulemaking proceeding was arbitrary and capricious because “reasonably endanger public health and welfare” should trigger protection of the statute. Look to see if an agency ignored expert findings – could be a sign of acting arbitrary and capricious. Even without a formal petition from the citizens, an agency can review their own rules and make changes

(d) Motor vehicle Manufactures vs. State Farm- Secretary of Transp rescinded requirement that new vehicles be equipped w/passive restraints w/out notice and comment proceeding. Holding: remanded back to agency. SC said that agency failed to present an adequate basis and explanation for rescinding the passive restraint requirement and that agency must either consider matter further or adhere to or amend Standard 208. CT used OP technique: 1) agency didn’t consider other alternatives (i.e. air bags); 2) agency didn’t adequately explain its dismissal of the benefits of automatic seatbelts; and 3) agency failed to articulate basis for not requiring non-detachable belts. The SC- uses an aggressive hard look review and seems to deter agencies from changing rules.

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(e) FCC v. Fox Television the Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves.

(f) Basic Variations on “Hard Look” Review(i) Procedural “Hard Look” Review: In step #2, the reviewing judge looks to the procedures used

by the agency, whether required by the Constitution or by statute or adopted by the agency on its own, and considers whether those procedures were such as to ensure that the agency made a reasoned decision that is in accord with the limits, constraints, or focus specified in the course of step #1. (Bazelon in Ethyl Corp. v. EPA (D.C. Cir., 1976) goes further and invites reviewing courts “to establish a decision-making process that assures a reasoned decision by the agency” [later repudiated by the Supreme Court in Vermont Yankee Nuclear (1978)]).

(ii) Substantive “Hard Look” Review: In step #2, the reviewing judge “acquires whatever technical knowledge is necessary as background” so that the judge can give “a hard look” to whether the agency gave “a hard look” to the issues and problems involved in the decision. (Leventhal in Ethyl Corp. v. EPA).

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3) Common Law Requirements, Clarity, Consistency and Fairness

Courts use certain ‘methods’ to decide:

a) Straightforward judicial identification of measure of rule specificity required of agency (by Constitutional means, such as Procedural Due Process’ “void for vagueness” and First Amendment “over breadth” doctrines, and by non- deferential interpretation of statutes).i) Boyce Motor Lines vs. US- Interstate Commerce Commission regulations provided that drivers hauling

explosives should avoid congested areas where feasible by prearranging alternative routes. Statute provided that those who knowingly violated regulation subject to fine or imprisonment or both. P charged under regs and challenges as too vague. Holding: SC holds that statutory scheme as it is doesn’t violate Due Process. Regulation is not too vague. Rule specificity isn’t required, no more than a reasonable degree of certainty can be demanded. The court says that this regulation is ok because the lobbying efforts by the trucking lobby. The

§553(c) [trigger], §§ 556, 557

Exclusions

Moreinformal

Informal

Formal

AdjudicationRulemaking

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lobby wanted the discretion to decide how to ship stuff, and that’s what they got and now they need to live with it.

ii) Forsynth county Georgia vs. The Movement- Ordinance set up a variable fee system applicable to getting parade permit, which gave the administrator the power to adjust the fee up to maximum $1,000. Challenge to order alleging that it is facially invalid b/c it doesn’t prescribe standards for administrator to apply when he sets permit fee and he could be suppressing ideas. Holding: SC holds for challengers. Nothing in the order prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The 1st Amend prohibits the vesting of such unbridled discretion in a gov’t official. – the court was using ad law to protect the Amendment

iii) Sogling vs. Kaffman - Univ of Wisconsin brought disciplinary proceedings against SDS members for misconduct b/c of they protested Vietnam War when Dow Chemical recruited. Students challenged disciplinary proceedings claiming DP violations – lack of specificity in university discipline regs. Arg: deprivation of his liberty interest in obtaining education which can’t be taken away w/out 14th Amend due process, which requires notice and detail. Holding: Judgment for Students. Use of misconduct as standard for imposing penalties falls for vagueness. [Pushes regulatory scheme in a rule-like direction by forcing university to specify what constitutes misconduct]

iv) Hornsby vs. Allen- H unsuccessfully applied for liquor license. §1983 action alleging that she met all requirements yet her application was still denied w/out any reason. Approval is contingent on approval by ward alderman. She alleged political favoritism. Holding: Allegations are sufficient to show 14th Amend Due Process violation. H was not given an opportunity to know through reasonable regulations the standards to be met before obtaining a license. More rule-like regs required. [allowed ct to avoid Equal Protection issue by treating it as rule-specificity case]

v) Holmes vs. NYC- Applicant challenged selection process for low-rent housing. Alleged that the applications were not processed chronologically, in accordance w/any ascertainable standards or in any systemic or reasonable manner. Holding: D violated DP. DP requires that selections be made in accordance w/ascertainable standards and when all candidates are equally qualified, selection must be in some reasonable manner. Again, more rule-like regs required.

b) Ct’s decision on whether rule is required – based on the merits. i) To understand Ct’s decision, you must think functionally – look at consequences. Ex: W/transit visa, there is

no real background check. It’s done quickly to facilitate int’l travel, but it shouldn’t be relied on to allow alien to remain in country. Each visa represents something different which must then be treated differently. Comes down to merits.

ii) Fook Hong Mack vs. INS- F entered US on transit visa and stayed for 6 months. F sought favored status. Statute provided that AG had discretion to grant favored status. AG refused to change status b/c of reg which said that transit visa are given out only on condition that alien not apply for adjustment of status. F alleged that AG in fashioning rule affirmatively decided not to use her discretionary authority which violated statute. (the scope is chevron here- the court would decide it was deferential chevron?) F arguing for case by case adjudication. Holding: AG’s decision and rule-like regulation upheld.

iii) Asimakopoplus vs. INS - P came to states on student visa (“protected status”) and stayed for several years. They asked AG to suspend their deportation under statute that gives her discretion to suspend deport if alien has lived here for 7 yrs and good character. AG refused to suspend b/c of earlier INS case, which held that AG could exercise her discretion in favor of protected status alien only if equities were particularly strong. Holding: Reversed AG’s decision. AG must use case by case analysis. AG cannot rely on rule-like adjudicatory decision. Non deferential chevron. The difference here—they type of visas and the result that the court wanted….(1) Consistent Explanation– Requirement that agencies explain their decision. By requiring agencies to

explain their decision, CT is pushing scheme to be more rule-like. This is really Overton Park. Ex: airbag case – remanded to agency b/c it hasn’t adequately explained reasons.

c) Judicial use and non-use of Chenery doctrine that agencies must satisfactorily explain the grounds, reasons, bases for their decisions. This is a lot like hard look review, contrasts with appellate court review of trial court—because they will say you need to specify your reason, the outcome isn’t that important.

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i) SEC vs. Chenery Corp 2- SC upholds SEC’s decision on remand. It’s ok that SEC has same standard b/c relied on its expertise and explained rather than relying on inapplicable case law.

d) Judicial determination that agency has not adequately explained its inconsistent action with reversal or remand of action to the agency. Special Chenery doctrine for decisions made in agency adjudications. i) SEC vs. Chenery Corp - SEC has authority to reorganize companies and must approve voluntary

reorganization as well. C’s were officers, directors and controlling SH in utility holding company in process of reorganization. SEC ruled that Cs couldn’t sell or buy stocks in new company, but had to redeem it for purchase price plus 4%. SEC approved the reorganization but ruled that C couldn’t participate in new company by buying preferred stock. SEC based its decision on case law, which in other contexts imposed a duty of fair dealing. SEC promulgated a “presumption” standard against participation in re-org company by those who control the co. going into re-org. Can overcome presumption, but burden is very high and must convince SEC that everything is ok and good. SEC said C violated “duty of fair dealing” and failed to meet presumption standard. Holding: SC reversed and remanded. 1) SEC hasn’t really justified adequately its decision. Case law doesn’t apply and even if it did, SEC must explain the reason and rationale for decision. 2) If SEC imposes new standard (i.e. presumption), needs to do so by rule-making process, not by adjudication. 3) This rule, announced after activities, can or cannot be applied retroactively. Ct requires more rule-like scheme.

e) Judicial authorization of agency’s retroactive application of a new rule or policy fashioned in the course of an adjudication (vs. judicial rejection of retroactive application of such rule or policy). This is a balance act where you have to look at reliance, predictability, compared to agency responsiveness, flexibility. i) NLRB vs. Guy - it was not permissible to allow retroactivity. There is a change in the substantive rule of

conduct so its not ok to impose. The employer relied on the old rule and thought he had to fire the employee bc he wasn’t union anymore.

ii) NLRB vs. Local 176 - the court sustained a change of policy but refused to enforce it in this case because it would be ex-post facto.

iii) NLRB vs. E and B Brewing- the NLRB’s new policy was held impermissibly retroactive in this particular case because they were over ruling a line of cases which had allowed the hiring practice.

iv) Leedom vs. NLRB - the NLRB allows this because there is a shift towards less union power. This policy is allowed to change because a shorter contract bar was more favorable because it was one of the ways the NLRB allocated power between unions and management over time. This changes based on who (R or D) put the board in place. Retroactivity because the change happened a lot at was necessary to achieve statutory objectives, there was little reliance on the bar and the remedy is kind of prospective- you just have to have a new union election. Economic changes necessitate that NLRB allowed to change contract bar rule

v) NLRB vs. APW Products vi) NLRB vs. Majestic Weaving vii) H and F Binch Co vs. NLRB

f) Requiring Consistency- Adjudication i) Brennon vs. Giles - OSHA didn’t even try to justify why it was departing from previous decisions. This

pushes the agency towards a rule structure because they are not allowing a lot of discretion by the agency. This is important because it leads people to think the decisions are arbitrary—and that there is favoritism or not justice. There seems to be a duty of the court

ii) Comcast Corp. vs. FCC - Comcast- agencies are not bound by the prior decisions of their staff. The AGENCY is the law maker, not the staff or ad law judge. Their authority only reaches to a case not to rulemaking. Pg 482.

g) Judicial authorization of agency’s retroactive application of a new rule or police fashioned in the course of a rulemaking. Can’t make things unlawful that was previously regarded as lawful. i) Bowen v. Georgetown University Hosp (1988)- HHS passed rule in 1981 that decreased hosp reimbursement.

Hosp challenged and had rule held invalid. In 1984, HHS re-promulgated rule using valid procedures. 84 Rule had retroactive effect all the way back to 1981. Holding: Rule as it provides for retroactive effect is impermissible. CT relied on statutory grounds saying that Medicare Act prohibits retroactive legal effect. According to Sec of HHS, statute allows rules to have retroactive effect. Ct says no. retroactive provision

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applies only to case-by-case adjudications, not to rule-making. Scalia, concurrence: Relied on APA to hold it was impermissible retroactivity. He distinguished primary and secondary retroactivity. Secondary retroactivity – regulatory changes that have legal effect on transactions that were already fixed in the past is ok (like a trust that was set up and then the tax rates were changed, it applies in the future but the trust was set up in the past.) Primary retro- making conduct that was lawful, unlawful and this is not ok.

h) Judicial use of the Arizona Grocery doctrine that agencies must follow their own rules until they change them (vs. judicial recognition of an exception to the doctrine).i) Arizona Grocery v. Railway Holding: ICC cannot subject RR to reparations for rates lower than 96 cents.

Once agency sets rule (i.e. 96 cents), then it must follow that rule until it is changed. When ICC sets rate, it is prospective for future and must be adhered to.

i) Judicial refusal to use the doctrine of equitable estoppel against the government (vs. judicial recognition of an exception to non-use of the doctrine). i) Schweiker vs. Henson- P went to SSA. Agent told her she wasn’t eligible for benefits, so she didn’t complete

the written application, which was required. She was, however, eligible. She is suing to get past benefits and to estop gov’t from requiring a written application in her case. This was a ‘non action’ case. He failed to disclose that she needed to apply in writing. Holding: Judgment for govt. Ct said there may be EE if: 1) P would have taken action or failed to take a certain action; 2) employee’s representation violated a regulation and not just manual which said she negligent by failing to recommend she complete written application.

ii) Office of Personnel Management vs. Richmond -P claimed gov’t is estopped from terminating his disability payments and is entitled to loss income. P relied on erroneous info from gov’t agent about a statutory provision– benefits contingent on him not earning 80% of his current pay for 2 consecutive yrs. Rule/Rule changed – that if you earn 80% in 1 yr, lose benefits. He had made more than 80% in 1 yr and had asked about his before and gov’t employ said its ok. Holding: SC held for gov’t – no EE. Majority relied on Appropriations Clause - “can make appropriations made in accordance with the law.” Law refers to statute/regulation but not individual representations. Unconstitutional to expend money based on gov’t employee’s representations. [can’t make EE claim in any expenditure claim]Concurrence – Appropriations Clause discussion is crazy. Agrees no EE. If you had EE, then no incentive to change regulations b/c employees can simply misrepresent the statute and gov’t would have to adhere to this.

j) Judicial uses of the doctrines of res Judicata or collateral estoppel against the government. We don’t permit the matter to be reopened. But the gov’t can raise the presise issue that it lost in the previous case.i) US vs. Mendoza - M challenged gov’t asserted failure to adequately implement a law facilitating

naturalization of aliens who had served in US armed forces. In a previous case, 68 Filipinos had prevailed on the same claims and gov’t decided not to appeal. M now challenging on same grounds and arguing non-mutual offensive collateral estoppel that the issue has already been decided. Holding: No collateral estoppel. A rule allowing non-mutual collateral estoppel against the gov’t in such cases would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue. Also, solicitor general considers a variety of factors, such as limited resources of Gov’t and the crowded dockets, before authorizing appeal.

ii) Non-acquiescence arises when gov’t refuses to comply with a ct’s decision. The administrative agency complies in the particular case, but refusing to follow the decision in other cases not before the ct. Claimants in these cases can use CE as a defense, but ct still reluctant to use CE in these cases.

k) Procedural Requirements in Agency Decision Making – every procedural requirement reduces agency discretion. i) Londoner v. Denver- Property owners in Denver challenged the assessment of a tax against them to cover

costs of paving a public street on which their property fronted. Before deciding to pave and also before assessments, their was notice and an opportunity to provide written comments to Board of Public Works. P challenged on 14th Amendment procedural due process grounds. It was a deprivation of property – money – which can’t be done w/out giving due process (oral testimony – full blown hearing) Holding: P entitled to some sort of oral hearing. Some opportunity must be given for oral testimony. [by forcing board to listen, the board can’t just blow off the owners’ interests so it becomes a more individualized assessment of costs]

ii) Bi- Metallic Investment - Suit to enjoin an order increasing the valuation of all taxable property in Denver by 40%. I: Do all individuals have constitutional right to be heard before a matter can be decided in which all

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are equally treated? Holding: Property owners did not have individual right to be heard in this case. Too many people affected and also owner can challenge the assessment orally after being assessed. Not considered a taking (i.e. no property interest) b/c Ct determined that individual evidence not relevant - it wouldn’t add anything to the discussion. Since it’s a large group the safeguards are the political safeguards in electing people.

iii) Southern Railway vs. Virginia - Act permits highway commissioner, executive officer, without notice or hearing to command a railway company to abolish any designated grade crossing and construct an overhead when, in his opinion, it is necessary for public safety and convenience. RR challenged claiming the Act deprives it of property w/out due process of law and thus violated 14th Amend. State commissioner argued it needed coordination over grade crossing decisions over the entire state b/c it affects general populations. Holding: SC held that statute is unconstitutional as it conflicts with 14th Amend. While the decision needs to be coordinated, it cannot be made w/out evidence presented by RR. Not necessarily oral testimony, but at least opportunity to present written evidence. RR are in position to prove the evidence necessary to make coordinated decisions re: grade crossing.

l) Under the APA i) Dominion Energy vs. Johnson - Clean Water Act requires anyone who discharges pollutants into navigable

waters to obtain a permit, which are administered by EPA. Permits good for only 5 years. Dominion seeking variance from one of the categorical limits in its permit renewal request. EPA denied variance request. Dominion appeals to appeals board, requesting evidentiary hearing. Board accepts appeal but only allows written submissions—no hearing. Seacoast had previously held that EPA is required to use formal adjudication procedures in issuing permits under the CWA—“agency must offer opportunity for a public hearing.” If not construed to require formal adjudication, no procedures mandated for informal adjudications. Minimum amount of procedures will be required under the due process clause since its an adjudication—increase in constitutional decision making. Seacoast rule: Rebuttable presumption that a statutory preference to a requirement of a formal hearing will require formal adjudication (anti-FL East Coast Railway—presumption the other way)(1) But pre-Chevron decision and in Brand X, Ct had said that a prior interpretation of statute by a court

doesn’t bind agency unless in retrospective decision, court says that this is required under Chevron step 1.(2) Statute does not unambiguously require formal adjudication so agency has discretion to interpret statute

in a reasonable way. Agency decision is sustained as reasonable interpretation of CWA.(a) One problem that might occur with the lessening of a requirement for formal procedures is that there

might be less hearings and less ability for the public to have an opportunity to participate and introduce evidence

4) Adjudications and Legislative Rulemaking Processesi) Formal, individualized adjudicative process:

(1) like common law – disinterested adjudicator/judge(2) triggered by formal pleadings/complaint, discovery, trial-like hearing, evidentiary requirements,

testimony, cross-examination, formal record.(3) Review – substantial evidence on findings of fact.(4) When adjudication, pushed toward case by case (i.e. FCC, FTC)

ii) Informal, legislative rule making(1) no participation rights(2) decision maker decides everything – evidence, who he talks to, intermediate decisions.(3) When legislative, process of decision-making is pushed toward rule-like.

iii) Exceptions: (1) Chenery – SEC adjudication – got rule out of it(2) Boyce – ICC promulgating rule thru informal process and getting a case by case determination out of it

b/c rule is so general.b) Formal Rulemaking

i) 1887 – 1970: All or Nothing: An era of either 1) formal rulemaking (e.g., ICC rate cases, CAB rate cases, FPC rate cases) or formal adjudication (e.g., NLRB unfair labor practice cases, FCC licensing adjudications, AEC nuclear power licensing cases, FTC unfair methods of competition cases, INS deportation proceedings)

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or 2) very little in the way of rulemaking procedures, with § 553(a) of the APA excluding rules respecting military or foreign affairs and rules relating to agency management of public property, loans, grants, benefits or contracts, and very little by way of enabling act procedures for the promulgation of substantive rules, and very little in the way of required safeguards for such case by case decisions as the DOT approvals of interstate highway routing decisions.

ii) 1960s and 1970s: critiques of ossification and capture by regulated entities.iii) 1970s: The Rise of Informal Rulemaking:iv) Aggressive statutory constructions to permit agencies to proceed by rulemaking, e.g., National Petroleum

Refiners v. FTC (octane posting rule, D.C.Cir. 1973);v) Judicial deference to agency decisions to proceed by rulemaking or by adjudication, so long as agencies

authorized to act in both ways, NLRB v. Bell Aerospace (1974);vi) Very narrow, restrictive read on § 553(c)’s “on the record after opportunity for an agency hearing” trigger for

formal adjudication, U.S. v. Florida East Coast Railway (1973), thereby paving the way for use of the § 553 notice and comment process.

vii) 1970’s and thereafter: the era of command-and-control regulation:(1) During the 1970’s, Congress and the President enacted an enormous number of complex regulatory

statutes in the environmental, natural resources, and safety areas, all of which make primary use of rules promulgated through the n & c process;

viii) From the 1980’s and thereafter, a great many statutes in the health law area, the education law area, the economic regulation area, etc, were enacted which also put rules promulgated through n &c procedures at the center of statutory/regulatory structures.

ix) The rules (fashioned through n & c rulemaking)/enforcement action (through formal adjudication) model:(1) Accommodated agency decision-making on a wholesale basis while making an end run around searching

judicial review, as courts were reluctant to strike rules on arbitrary, capricious, abuse of discretion grounds and, once rules were effective, they could not be challenged in subsequent enforcement actions (the only issues being whether the rules were violated or not), e.g., FPC v. Texaco, American Airlines, Heckler v. Campbell.

(2) The judiciary reacted by developing “hard look” review, Overton Park, and by interpreting § 553’s “notice” and “concise general statement of basis and purpose” provisions to require extensive “paper records”, which greatly facilitated “hard look”, e.g., Nova Scotia Food Products, Weyerhauser v. Costle.

x) Vermont Yankee Nuclear Power v. NRDC (1978): The Supreme Court brings an end to Bazelon-type “procedural hard look” review, wherein the reviewing court required agencies to engage in extra-statutory process to meet the “hard look” judicial screen.

xi) Mid-1980’s and thereafter: White House reaction to “hard look” review(1) White House (OIRA in OMB) oversight, review, and management of agency rulemaking, beginning with

E.O. 12,291 during the Reagan Administration and carried on by every Presidency since; thereby casting “hard look” review as much more of a conflict between unelected, non-expert lower federal court judges and the Presidency (with the consequent aura of “Separation of Powers” concerns).

(2) Greatly increased agency use (under White House influence, no doubt) of the §553(b)(A) and (B) exceptions to avoid n & c requirements, thereby saving time and effort, reducing the hassles of having to deal with those who would object to rule, and depriving the lower courts of much of the ammunition they could use for “hard look” review.

(3) Continuous battle in the courts over whether the § 553(b)(A) exceptions are available in particular case (see next 2 slides).

xii) Mid-1980’s and thereafter: White House reaction to “hard look” review(1) White House (OIRA in OMB) oversight, review, and management of agency rulemaking, beginning with

E.O. 12,291 during the Reagan Administration and carried on by every Presidency since; thereby casting “hard look” review as much more of a conflict between unelected, non-expert lower federal court judges and the Presidency (with the consequent aura of “Separation of Powers” concerns).

(2) Greatly increased agency use (under White House influence, no doubt) of the §553(b)(A) and (B) exceptions to avoid n & c requirements, thereby saving time and effort, reducing the hassles of having to deal with those who would object to rule, and depriving the lower courts of much of the ammunition they could use for “hard look” review.

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(3) Continuous battle in the courts over whether the § 553(b)(A) exceptions are available in particular case (see next 2 slides).

xiii) § 553(b) exceptions to n & c process (1) § 553(b)(A)’s “interpretive rules, general statements of policy, or rules of agency organization, procedure,

or practice”(2) § 553(b)(B)’s “when agency for good cause finds … that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest”(3) Stakes: if agency uninterested in info, data, perspectives, views from n & c, then(4) agency saves time (commonly over a year), energy, etc., and avoids having to deal with unwanted

comments,(5) policy centralization and control in the White House is enhanced,(6) reviewing courts are deprived of much of the material out of which they could engage in demanding

“hard look review”.(7) § 553(b)(B) exceptions have not been particularly contentious, with standard “good cause” exceptions in

cases of emergency, where statutory deadlines made n & c impracticable, and for “technical amendments” to existing rules

c) Judicial Control of Agency choice of Procedures(1) NLRB vs. Wyman-Gordon - NLRB (D) ordered Wyman-Gordon (P) to produce the names and addresses

of its employees to the union. D says you have to give it up b/c in its prior adjudication Excelsior, they had decided that these lists should be required. (But were not applied retroactively against companies in Excelsior—said this decision would go into effect 30 days after Excelsior decision) Not going to remand this on Chenery grounds, because we know that the agency will rule (NOTE: strong dissents argue this should be remanded under Chenery. Does violate the APA—can’t promulgate a rule in this way: If agency wants to change its policy on a prospective-only basis, the only way to do so is through a rulemaking procedure. Board then goes on to say that they will allow the board to affect this change in policy and issue an order for Wyman-Gordon to comply with because there was adjudication against Wyman-Gordon, If does implement retroactively, Excelsior could challenge the application as arbitrary and capricious in the retroactivity balancing test

(2) Mortion vs. Ruiz- Indian denied benefits. The APA requires that rules be promulgated in a certain way. Once they are promulgated, the agency must follow their own rules.

(3) NLRB vs. Bell- Board upsets a longstanding rule that had treated all buyers as managerial and issues order allowing buyers to organize and perhaps engage in collective bargaining. Applies it to company that is before board (not prospectively) Court goes back to Chenery and says APA didn’t change Chenery rule. Choice of adjudication vs. rulemaking lies with agency—only when discretion is abused will choice of agency be overturned by court

d) If Board doesn’t want to promulgate a rule and wants to change policy prospectively what should it do?(1) Policy should be changed with notification to regulated community that they are contemplating a change

in policy (but don’t be as formal as Board was in Excelsior)(2) Next case, apply change and give a rationale for doing so (don’t just cite former decision) (3) FPC vs. Texaco - FPC, thru notice and comment, adopted regs governing terms and contracts between gas

producers and pipelines, to whom they supplied gas. Regulations prohibited escalator clauses in the K. FPC refused to look at an application for license b/c it has an escalator clause. Licensing process is actually a formal adjudication matter, but FPC short circuited that requirement by pulling out formal adjudication matter and putting into a notice and comment rulemaking scheme by making it prerequisite. Without reg, Texaco could challenge license decision thru formal adjudication and argue fairness of escalator clause. Holding: Notice and comment sufficient.

(4) Heckler vs. Campbell - SSA defines disability in terms of effect a physical or mental impairment has on a person’s ability to function in workplace. If person can engage in other work, then they don’t qualify for SS benefits. The determination would be made by case by case adjudication. Formal adjudication where claimant could present evidence. SS fashioned guidelines providing that certain impairments are so severe that they prevent a person from pursuing any gainful work. Holding: guidelines are ok. Guidelines subject to deferential review.

ii) Formal on the Record Rulemaking

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(1) US vs. Florida East Coast -ICC raised incentive per diem rates for use of RR cars thru notice and comment rulemaking. The statute required a hearing for making rules but not a hearing on the record. RR challenged rule alleging that there should’ve been formal rulemaking b/c there would’ve been a hearing where it could have brought up issues and developed record. RR wanted this b/c it wanted formal findings of fact b/c then subject to substantial evidence review. It could challenge case by case and distinguish itself. Holding: SC rejects RR’s argument. No language that hearing must be “on the record.” Just b/c statute requires hearing, it isn’t enough.

iii) Notice and Comment(1) US v. Nova Scotia - P contend that there is an inadequate administrative record upon which to predicate

judicial review, and that failure to disclose to interested parties the factual material upon which the agency was relying vitiates the element of fairness which is essential to any kind of administrative action. Holding: CT using §553(c) remands rule. Tells agency that it must deal with comments, interests and arguments re: regulation. Must include this discussion as support for regulation in Fed’l Register.

(2) Vermont Yankee v. Natural Rescore Defense –fund represents subsequent development of Overton Park. put limit on Overton Park review. did not, however, kill Overton Park (see airbags case) Beginning in 1980’s, era of extensive judicial involvement by lower cts thru Overton Park came to halt. imposes strict limits on the courts’ ability to impose new or additional procedural requirements beyond those required by the APA and the particular statute governing the agency’s action. See above as well. (a) Judge Bazelon, a much cited judge in the DC Circuit, said that the court should limit the their

substantive review of mathematical and scientific evidence by technically illiterate judges because it is dangerously unreliable. He wanted the courts to strengthen administrative procedures but he didn’t get his way.

iv) Agency Interpretation of its Own Regulations(1) Hoctor vs. US - Ct. held rule that required 8 foot fences for "big cats" was legislative rule subject to notice

& comment rulemaking b/c it was reached arbitrarily & was not an interpretation of a particular statutory provision. When agency specifies a standard in numerical terms, it is actually giving a legislative rule.

v) Exceptions to Notice and Comment(1) Good Cause- APA 553 bB is the exception to notice and comment. It allows the agency to dispense with

notice and comment when the agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest.

(2) American Hospital Association v. Bowen - HHS (D) contracted with Peer Review Organizations (PROs) to oversee the expenditure of Medicare dollars by doctors and hospitals. PROs were to determine whether hospitals and doctors were performing in accordance with various standards. HHS promulgated its regulations concerning the organizations of PROs, their activities and their enforcement powers without following notice and comment procedures. American Bus rule: Legislative rule is one that is (1) binding upon the agency and (2) constrains agency discretion. General statement of policy is one that (1) doesn’t have effect, impose rights or obligations (2) leaves agency and its decision makers substantial discretion as to whether or not to apply standard in statement Interpretive rules—similar to general statement of policy. Only clarify or explain existing law or regulations—don’t have full force and effect of substantive rule. Comes down to what is the effect of the rule? (but note that really when court is determining what type of rule it is, it is determining its effect) Under §553(b), interpretive rules and general statements of policy do not have to be promulgated under notice and comment procedures

(3) Appalachian Power Co. vs. EPA- if the agency treats a document issued at HQ as controlling in the field, then it is in effect binding and therefore a legislative rule

5) Due Process Hearing Rights and the New Propertya) Bailey vs. Richardson - gov't employment held to not be a liberty or property interest under 5th Amendment. due

process t/f no quasi-judicial hearing was needed to dismiss employee. b) New Property

i) Goldberg vs. Kelly- Suit brought by NY city family receiving welfare alleging that they didn’t get due process. Their aid was terminated. Prior to the determination to cut off aid, there was no opportunity for oral testimony/cross-examination. There was, however, opportunity for post-termination fair hearing where

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recipient may appear personally, offer oral evidence, confront and cross examine witnesses, and have a record made of the hearing. I: Whether due process requires that the recipient be afforded an evidentiary hearing before the termination of benefits. Holding: SC said yes. Ct holds that plaintiff is entitled to a pre-termination hearing. She has a protected property interest – entitlement to welfare benefits. The courts states that just because there is a protected liberty interest, doesn’t necessarily mean that full blown trial is required. Must use 2 step inquiry. In any event, CT ordered: pretermination hearing, impartial decision maker, right to: 1) present oral argument, 2) present oral evidence, 3) cross-examine adverse witnesses, 4) be accompanied by counsel; decision based solely on evidence at hearing; statement by decision maker of reasons for decision. (1) Note: Prior to Goldberg court decision, court would have held that there was no constitutional

requirement for oral testimony b/c it is privilege to receive welfare and at discretion of govt. She could sue that she didn’t get statutory protection, but not due process.

ii) Board of Regents vs. State College - Roth was hired for one year term as college professor. At end of his term, he was not rehired. No reason was given for the failure to rehire him. Roth brought suit under §1983 contending that failure to rehire him violated 14th Amendment. 1st he asserted that failure to rehire was retribution for his exercise of free speech (liberty interest). 2nd he asserted that university’s failure to give him reasons or opportunity for hearing violated procedural due process. He argued that he has a protected property interest in teaching. Also argued that he had liberty interest in his reputation. Holding: Judgment for University. 1) no protected property interest. 2) K didn’t have renewal pending a “for cause” determination; 3) K specifically provided that Roth was to be terminated on June 30; and 4) annual K which gave him no entitlement to job. CT is clear that what triggers an interest is a statutory/regulatory basis. Reputation: Roth also argued that he had a liberty interest in reputation – to be able to readily go out and get another job. Roth argued by not renewing K, gov’t was depriving him of his liberty interest to get a job b/c of his injured reputation. Ct rejected this b/c there wasn’t evidence of any injury to him. Ct said it might buy this some other time – implicit in this is that maybe interest isn’t based only on regulatory/statutory scheme.(1) Note: 1st Amendment argument is definitely an old liberty interest, and thus if this had been seriously

challenged, court would have undoubtedly ordered full trial type hearing.iii) Perry vs. Sindermann - Sindermann had been teacher at Texas college for 10 years under a series of one-year

contracts. College had no formal tenure policy. The board voted not to re-hire him. There was no hearing or reason given. Faculty hand book that gave guidelines for renewal. S filed suit under §1983 asserting that the board’s action was in retaliation for his exercise of 1st Amendment rights to free speech. Also asserted college violated his due process. He had a property interest in continued employment. Holding: Judgment for Sindermann. He is entitled to trial on the merits. He had a protected property interest – an entitlement to continued employment b/c there was college and state faculty guidelines which communicated a de facto/“for cause” policy.

iv) 1983 - the act provides for damage awards and equitable redress against persons, typically government officials who under color of state law deprive any person of any rights privileges or immunities supplied by the constitution and the laws of the untied states.

c) Assessing the Entitlement Doctrinei) Ridgely vs. FEMA- the court found that the P’s were not entitled to rental assistance because the Act said the

president “may” provide assistance, and FEMA interpreted the statute and required eligibility standards. The P’s said that the eligibility requirements were unfair. But the court held that because the act was permissive, there was not property right to the assistance.

d) Arnett vs. Kennedy - K, fed’l service EE, was discharged by superior. K was informed of the charges and afforded an opportunity to respond to charges orally and in writing and to submit affidavits. K didn’t respond and argued the proceedings were unlawful b/c he had right to a pretermination trial type hearing before an impartial hearing officer. K arguing 5th Amen was violated b/c he has protected property interest – job – and should get full blown hearing. 1st statute: an individual in fed’l dept may be removed or suspended without pay only for such cause as will promote the efficiency of the service. 2nd statute: establishes the administrative procedures by which an EE’s rights under statute #1 are to be determined. It requires only notice and opportunity to provide written evidence. K argues that there was no cause, so at least he should have full blown trial to determine if gov’t has cause for dismissal. Holding: Rejected K’s challenge. Ct uses bitter with the sweet argument. While K has property interest in working, it is subject to the statute’s procedures for determining dismissal.

e) Beginnings of retrenchment, Rehnquist w. only a plurality, with uncertain support (Loudermill (1985)). Apparent majority for sharply distinguishing substantive state law from state procedural law and grounding entitlement on

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former only (Loundermill). Some indications that at least some “protected property interests” cannot be extinguished by changes in state law (“old property” redux?)

f) The ‘bitter with the sweet” theory was rejected in later cases. 6) Determining if Processes is Due

i) Mathews vs. Eldrige - Prior to cutoff of disability payments, a beneficiary is provided a summary of evidence upon which the proposed determination to terminate is based. Individual is provided opportunity to review evidence, respond in writing and to submit additional evidence. After termination, a trial type hearing is afforded. (1) The Mathews v. Eldridge paradigm: B X P < C calculus, directed toward “accuracy” of decisions;

Uncertain status of “governmental interests”; this is a test. Its not a workable test. (2) Broad v. narrow categories of governmental actions, e.g. dismissal from school for academic

nonperformance v. dismissal for misconduct; Medicare claims disputes of >$100 v. Medicare disputes of < $100;

(3) Safeguard-by-safeguard or by packages of safeguards, e.g. Loudermill, Winegar.ii) Goss vs. Lopez - pre-Eldrige (student discipline) student entitled to oral notice of grounds for suspension and

an opportunity to discuss matter orally w/administrator, but doesn’t have right to counsel, confrontation, cross examination or to present witnesses.

iii) Winegar vs. Des Moines Independent Community -Teacher suspended and transferred had a protected “liberty interest” due to the injury to his reputation and should have been afforded opportunity for oral evidentiary hearing, either before or after school’s decision to suspend.

iv) University of Missouri vs. Horozits -Student dismissed from medical school after given several chances to improve provided adequate due process; academic evaluations are more subjective and so there is substantial judicial deference to educational institutions’ procedures.

v) Schweiker vs. McClure - Review determination, subsequent oral hearing, and written determination sufficient due process for processing Medicare claims; additional governmental review would provide little value, per second Eldridge factor.

vi) Gray Panthers vs. Schweiker- Ct. held that there needed to be a meaningful process for rejection of Medicare claims over $100, but that for rejection of claims that are less than $100, a telephone complaint line that was busy 40% of the time satisfied due process. At a minimum, a claimant must have an opportunity to know why a claim has been rejected either orally or in writing.

vii) Cleveland Board of Education vs. Loudermill - P, security guard, was dismissed b/c he had lied on his initial job application. Under Ohio law he was classified as a civil service EE entitled to job during good behavior and efficient service and was dismissible only for misfeasance, malfeasance or nonfeasance in office. The statute provided minimal procedural protections, which state complied with. Holding: Ct considered the argument that property was conditioned by statute’s procedures, and it squarely rejected that argument. The right to due process is conferred not by legislative grace but by constitutional grace.

viii) Gilbert vs. Homar- Due process allows the suspension of a tenured campus policeman who was charged with drug offenses without any pre-suspension process and without pay. The Mathews factor of government interest gave them enough weight to fire without due process

7) Present Federal Practice Jurisdiciton a) APA 701(a)(1)’s “preclusion by statute” exception to Abbot Lab’s presumption:

i) Statutory silence ordinarily means ‘reviewable’, e.g., Bowen v. Michigan Academy of Family Physicians (1986), though courts occasionally interpret statutes to implicitly preclude judicial resolution of at least some kinds of challenges, e.g., Block v. Community Nutrition Institute (1984);

ii) Courts commonly construe apparently preclusive statutory language narrowly so as to permit courts to entertain at least some kinds of challenges to agency action, e.g. Harmon v. Brucker (1985), Veterans Benefits scenario culminating with Johnson v. Robison (1974). Johnson was a reaction to the creation of the statute--- not to an action under the statue (that was precluded)

b) APA 701(a)(2)’s “committed to agency discretion by law” exception:i) A far more expansive exception than commonly recognized, e.g. judicial review of a Federal Reserve Board

interest rate increase, judicial review of National Park Service decision reducing hours and staffing at the Arch, judicial review of President’s speech, judicial review of FEMA decision not to stage prior to hurricane;

ii) Illustrative early cases, e.g., Panama Canal Co. v. Grace Line (1958), Waterman Steamship (1948);

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iii) Marshall’s misguidedly narrow “no law to apply” analysis in Overton Park, decisively discredited by Scalia in Webster. (1) Webster v. Doe The majority stated that personnel decisions were under the agency discretion exception

and therefore not reviewable. Scalia says that the “no law” to apply provides less than the full answer as to whether the 701A2 applies, and he says that there were ways to review the discretion under 706. (a) Scalia apparently flipped on the way he felt between Webster and Heckler.

(2) Heckler v. Chaney - when the statute which the decision’s authority is premised on provides no meaningful standard by which to judge the decision, there can be no judicial review. Presumption that agency refusals to take enforcement steps are generally not judicially reviewable

iv) Norton vs. Southern Utah —the agency actions that are subject to judicial review, there is a presumption of reviewability. Agency action is either an action or a failure to act. (fashion a rule, or order or something very specific.) A failure to regulate generally is not reviewable.

v) Interplay of APA 701(a)(2) with 701(a)(1) and with 706(2)(A)’s “arbitrary, capricious, abuse of discretion” scope of review standard.

vi) Enforcement actions not reviewable, agency resource allocation not reviewable because the worry is that the courts got involved, the process will be slowed, they don’t know as much about the agency’s strategy, ect.

8) Different kinds of claims a) Traditional “legal wrong” test: only those who could allege and then prove that agency actions caused or would

cause them “legal wrong” had standing to sue, with a “legal wrong” largely understood as agency action unlawfully injuring a common law right or some Constitutional right. The test constituted almost a complete merger of the standing issue with the question whether the challenger would prevail on the merits. What counted as a “legal wrong” was expanded somewhat in the 1950s and 1960s to include unlawful interferences with statute-based rights.

b) Data Processing (1970): the Supreme Court scuttles the “legal wrong” rubric in favor of a two prong test, where Prong #1 has the court inquiring into whether the challenger has suffered or will likely suffer “injury in fact” as a result of agency action, and where Prong #2 has the court asking whether the interest of the challenger is “arguably within the zone of protection of [the enabling act or some other legal limitation on the agency]”. Data Processing (which itself granted standing to the competitors of banks benefited by agency action) greatly expanded the number and sorts of persons who could challenge agency action, thereby greatly increasing opportunities for courts to oversee, influence, check agency action. Prong #2: whether challengers interest is “arguably within the zone of protection of [the enabling act or some other legal limitation on the agency]”:i) Though obviously echoing the old “legal wrong” test, Prong #2 has not been much used to restrict standing.

The Air Courier case is the only instance of the S. Ct. denying standing on Prong #2, the court said the statute has nothing to do with postal service job protection.

ii) National Credit Union Administration (1998): Thomas says “there does not have to be an indication of congressional purpose to benefit the would-be plaintiff”, so the inquiry is simply into whether challengers interest would be protected were he to prevail, and, O’Connor in dissent argues this would collapse Prong #2 into Prong #1.

iii) There remains some life to Prong #2 as illustrated by the Dismas Charities case (6th Cir, 2005)(operator of community correction center denied standing to challenge Bureau of Prisons regulation on Prong #2). Note that occasionally Prong #2 is used to deny standing re certain kind of challenges but not all, e.g., Dismas Charities (abuse of discretion challenge not available, but APA 553(b)(A) challenge is). With Prong #2 characterized as merely a “prudential” limitation on standing (and so not a Constitutional requirement), could it be statutorily eliminated, leaving only Prong #1 as standing test?

iv) Prong #1: whether challenger has or will suffer “injury in fact” as a result of the agency’s action. The cases speak expansively of “any palpable, concrete, particularized injury” and the injury need not be economic or to property but includes injuries to recreational, environmental, aesthetic, health and safety interests.

v) The challenger must allege and then establish not only that he suffers or would suffer a “concrete and particularized injury” but also that the injury “fairly can be traced to the challenged action” of the agency (“causation”) and that that injury would likely be remedied should the challenger prevail against the agency (“redressability”), see, Simon v. Eastern Kentucky Welfare Rights (1976).

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vi) “Causation” and “redressability” requirements afford the courts considerable flexibility in granting or denying standing, see e.g., Brennan’s concurrence in Simon, and Duke Power v. Carolina Environmental Study Group (1978), depending on how injury is characterized and depending on how much consideration is given to actions of third parties and other future events. See also Friends of the Earth v. Laidlaw Environmental Services (2000) (where generalized deterrent effect of civil penalties held to meet “redressability” requirement even though entire penalty goes to U.S.

vii) Challengers’ “concrete and particularized injury”, “causation”, and “redressability” showings are much more difficult at the trial stage and at the summary judgment stage than at the pleading stage, Lujan v. Defenders of Wildlife (1992), since allegations are sufficient to survive a motion to dismiss the complaint but the challenger is often required to adduce a detailed factual basis at the later stages.

viii) Courts have fashioned some rules of thumb, e.g., “a person has no standing to challenge the tax liability of another”, “much more is needed when a person challenges the regulation of another than when he challenges a regulation of himself”, “no person has standing to challenge a remedied violation”.

ix) Prong #1 is often said to be a Constitutional requirement, grounded in Art III’s “case or controversy” provision, designed to prevent advisory opinions and judicial wild goose chases; and Art. III has been used to strike statutory “citizen standing provisions”, e.g., Lujan (citizen standing provision in Endangered Species Act). (Some, e.g.., Scalia, speak in “Separation of Powers” terms about standing.)

9) Ripeness and Exhaustiona) APA 704 authorizes judicial review only of “final agency action”, which is typically taken to involve three related

(and sometimes difficult to distinguish) doctrines having to do with timing of judicial review: 1) agency actions must be “ripe” before review is available, 2)challengers must exhaust administrative remedies (or the case must fall within some exception) before obtaining judicial review, and 3) only “final agency action” is reviewable. In general, a timing problem is understood to raise a “ripeness” issue if further agency action on the matter in controversy is likely or possible at the time the challenger seeks judicial review, i.e., the ball is still in the agency’s court. Timing problems are generally understood to raise exhaustion issues if the challenger can or could have done something at the agency level prior to judicial review, i.e., the ball is (was) in the challenger’s court.

10) Finality of agency action: for agency action to be “final”, the agency decision-making process must have reached a resolution and come to a halt, e.g., Public Citizen v. U.S. Trade Representative (D.C.Cir, 1993)(agency decision to send a proposed treaty to the president does not count as “final agency action”)a) Franklin v. Massachusetts (1992) (challenge to census as submitted by Secretary of Commerce to President “not

final” and, while “final” when transmitted by President to Congress, not subject to APA arbitrary and capricious review because President not “an agency” under the APA.

11) Traditional Ripeness doctrine required agency action to be “final” and to be sufficiently focused and concrete to make judicial review appropriate. In cases where the statutory structure involved agency promulgation of substantive rules and implementation or enforcement through trial type adjudications, judicial review of the rules was ordinarily held to be ripe only at enforcement stage, i.e., pre-enforcement review was unavailable.a) Abbott Lab’s presumption that agency rules are “ripe” at pre-enforcement stage (1967): FDA’s “every

time” regulations were held to be “ripe” upon promulgation since rules were “final” and had the force of law (not merely advisory to DOJ lawyers), the issues were sufficiently concrete and focused for judicial review since they posed a pure question of statutory interpretation, and there would be substantial harm to the challengers were they forced to challenge rules only as defense to enforcement action. FDA’s “access” regulations were held “not ripe” at pre-enforcement stage because FDA retained discretion re inspections where rules likely to be fine-tuned (and so issues not sufficiently concrete and focused) and because no irreversible injury to challenger if required to wait. Harlan’s majority opinion downplays concern about challengers’ ability to use pre-enforcement review (with attendant stay of enforcement pending review) to delay and frustrate and distort agency rulemaking process. Fortas’ dissent contends pre-enforcement review and attendant stay of enforcement pending review empowers every district judge to frustrate agency development of programs.

b) Ready availability of pre-enforcement review greatly increases bargaining power of potential challengers vis-à-vis agencies by enabling them to threaten delay and expense unless the agency plays ball at the rule formation stage, note NHTSA’s shift from auto safety rulemaking to safety defect recall adjudication system.

c) Post Abbot Labs developments: Many statutes now provide for pre-enforcement review of rules. Some statutes, e.g. Clean Air Act, Clean Water Act, both authorize pre-enforcement judicial review of many kinds of EPA rules (ordinarily in the D.C.Circuit Court) and prohibit enforcement stage review of those rules. There is a substantial

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body of case law dealing with the question of whether the availability of pre-enforcement judicial review forecloses review of those rules at the enforcement stage or after a statutory limitations period for pre-enforcement review has expired, see., e.g., NLRB Union v. FLRA (D.C.Cir., 1987).

d) Three types of exhaustion problems:i) Situations where a litigant seeks judicial review of a claim to avoid the administrative process altogether,ii) Situations where a litigant seeks judicial review of claim which was submitted to but rejected by the agency

when the controversy includes other claims that are the subject of ongoing agency proceedings which have not yet been decided (interlocutory review),

iii) Situations where a litigant seeks judicial review when agency proceedings are over, and where he did not raise (or did not pursue) the claim before the agency (the problem of “waiver”)

e) Basic rationale for general exhaustion requirement: Have agencies exercise their discretion because it is they who have expertise and overall responsibility for managing and coordinating regulatory programs; give agencies the opportunity to correct their own mistakes; refrain from giving the bargaining power attendant to early review to regulated interests; avoid involving judiciary in matters where issues not focused nor sufficiently concrete; avoid piecemeal review; save judicial resources. The exhaustion requirement is applicable if the person could still do something before the agency, before the judiciary reviews the case.

12) Whether Judicial Relief is Available a) Jurisdiction: Does a Court have the Power to Review?

i) Statutory basis required at federal level (though writs also available in many states);ii) Many enabling acts provide for judicial review, with courts of appeals ordinarily specified where no record to

be developed on review, e.g., review of rules, formal adjudications like NLRB proceedings, and with federal district courts ordinarily specified where record may be developed, e.g., where enforcement actions brought in courts rather than before agency ALJs;

iii) Statutes of general or special jurisdiction, e.g., 42 U.S.C. 1343 jurisdiction for 1983 actions, 28 U.S.C. 1361 for mandamus actions, 28 U.S.C. 1346(b) for Federal Tort Claims Act cases;

iv) General federal question jurisdiction provision, 28 U.S.C. 1331, as default to federal district courts with $10,000 amount in controversy requirement eliminated in 1970s re federal and state governmental actions;

v) Courts ordinarily with power to review an agency decision when illegality raised as defense in enforcement action.

b) Venue and Service of Processi) Specific statutes sometimes specify reviewing court, e.g., many EPA rulemakings to D.C. Circuit;ii) 1962 amendments to 28 U.S.C. 1391(e) greatly enlarged venue options to include any federal district in which

1) a defendant resides, 2) cause of action arose, 3) real property involved is located, or 4) plaintiff resides if real property not involved;

iii) 1391 (e) also provides for expansive service of process to agency or government officer by certified mail beyond bounds of district;

iv) Forum shopping and “race to the courthouse”;v) Sagebrush Rebellion legislative effort to restrict venue for cases where federal property involved (i.e.,

national forest lands, wildlife refuges) to district where agency action “would substantially affect the residents”.

c) Reviewablility: What challenges can be made?i) Distinguish among challenges that might be brought against agency action: Constitutional challenge;,

statutory challenges; clear statement challenge (Kent v. Dulles-type search for specific statutory authorization); regulation interpretation challenge; substantive arbitrary, capricious, abuse of discretion challenge; “hard look” review; substantial evidence fact review.

ii) Abbot Laboratories v. Gardner (1967): presumption that final agency action are reviewable and presumption extends to challenges of all sorts. Both APA and Art. I, Due Process based.

iii) APA 701(a)(1)’s “preclusion by statute” exception to Abbot Lab’s presumption:(1) Statutory silence ordinarily means ‘reviewable’, e.g., Bowen v. Michigan Academy of Family Physicians

(1986), though courts occasionally interpret statutes to implicitly preclude judicial resolution of at least some kinds of challenges, e.g., Block v. Community Nutrition Institute (1984);

(2) Courts commonly construe apparently preclusive statutory language narrowly so as to permit courts to entertain at least some kinds of challenges to agency action, e.g. Harmon v. Brucker (1985), Veterans Benefits scenario culminating with Johnson v. Robison (1974).

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iv) APA 701(a)(2)’s “committed to agency discretion by law” exception:(1) A far more expansive exception than commonly recognized, e.g. judicial review of a Federal Reserve

Board interest rate increase, judicial review of National Park Service decision reducing hours and staffing at the Arch, judicial review of President’s speech, judicial review of FEMA decision not to stage prior to hurricane

(2) Illustrative early cases, e.g., Panama Canal Co. v. Grace Line (1958), Waterman Steamship (1948);(3) Marshall’s misguidedly narrow “no law to apply” analysis in Overton Park, decisively discredited by

Scalia in Webster v. Doe (p. 801) and apparently rejected by Marshall himself in his concurrence in Heckler v. Chaney (1985)(p. 795).

(4) Interplay of APA 701(a)(2) with 701(a)(1) and with 706(2)(A)’s “arbitrary, capricious, abuse of discretion” scope of review standard.

v) APA 701(a)(2)’s “committed to agency discretion by law” exception: (continued)(1) Is there a presumption of non-reviewability for cases where agency failure to act is challenged?

Rehnquist’s opinion in Heckler v. Chaney (1985) (challenge to FDA decision not to bring enforcement action against states non-approved use of lethal injection drugs); longstanding non-reviewability of exercises of prosecutorial discretion; justifications for presumption of non-reviewability (p.794).

(2) Nor is APA 701(1) available in many cases of agency non-action; Scalia’s very narrow interpretation of APA 706(1)’s direction of federal courts to “compel agency action unlawfully withheld or unreasonably delayed” in Norton v. SUWA (2004); while “agency action” is defined to include “failure to act”, “failure to act”is interpreted as failure to take a discreet action and action must be legally required.

(3) Courts commonly hold certain kinds of challenges to be unavailable as “committed to agency discretion by law”, but hold other kinds of challenges to be reviewable, e.g., Webster v. Doe (1988)(abuse of discretion claim against CIA Director for dismissing employee because homosexual non-reviewable but Constitutional claim reviewed and rejected); note 2, p. 803.

(4) Modest trend toward expansion of “committed to agency discretion by law” exception, e.g., Lincoln v. Vigil (1993)(Indian Health Service decision to fund and then defund program out of lump-sum appropriations not reviewable), Ellison v. Connor (5th Cir, 1998)(Corps of Eng. decisions to grant or deny permits to use Corps property not reviewable), Dept of Navy v. Egan (1988)(decision whether to grant security clearance not reviewable).

(5) Functional analysis of reviewability questions: whether judicial review of particular challenges (or of any) would undermine or frustrate or distort what the court view as the agency’s ability to implement its statutory objectives, see note 2, p. 806, and many of the cases.

d) Would preclusion of review of all challenges, including Constitutional challenges, to an agency’s discreet action damaging a challenger’s generally recognized rights be a deprivation of Due Process? Scalia’s opinion in Webster v. Doe (1988); series of draft cases in mid-20th century, pp. 809-10

Review Session notes:

Agencies are making laws by: case by case or by fashioning rues.The questions are –can agencies make case by case law that doesn’t impose on Article 3 power? And Can agencies make rules by fashioning laws that don’t impose on Article 1 power?

Crowell v Benson- public benefits and narrow public burdens are fine for the ad law to make case by case decision on. Also, tax cases or cases that involve immigrants and tariffs, it is ok for non- article 3 judges to preside over this. Crowell was a private party vs. private party who were fighting over benefits. The adjudication of cases like that can go to non-article 3 adjudicators? The cases where rights and duties are founded in statues? Again, the answer is yes. Hughes says that two kinds of decisions are made: statue interpretation or decisions of law. This is ok because the courts do not have to give deference on decision of the law. (but they defer on findings of facts) And the second is finding of fact (Courts will not give deference to Constitutional or jurisdictional facts though. the case it was scope of

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employment and on or above navigable waters.). There is deferential judicial review here. Also, the longstanding practice of courts using masters to find facts. This is really a matter of practicality, relying on experts.Minor theme: NO other cases or statues that have categorized facts the same way that Crowell v. Benson did.Major theme is that: there is not a virtual article 3 limit that congress by statue can create for non-article 3 judges. NO limit on the power congress can give to non-article 3 judges.

Northern Pipeline- different from Crowell. Brennan, formal approach, wrote the opinion. Really this is the only case to find a violation of article 3 – an impermissible delegation of article 3 power. The focus is private rights cases. There are 2 kinds of private rights. There are the ones that deal with rights and duties, created in a statue. Which the non 3 judge could do. Ex: bankruptcy.But when you give the non3’s cases or controversies that turn on the common law rights and duties, then there are issues and this is not ok. SO for ex: common law contract claims should not be addressed by a non 3 judge.Brennon approach- public right- ok for non3Private right- statue- ok for non 3Private right- common law- not ok for non3sVery formal.

CFTC v Schor- arose after northern. O’Connor approach, functional. Because the non3 judges in this case were looking to adjudicate contract issues (churning) These rights were of common law origin . O’Connor looks at if is this appropriate allocation of power? She says no, because the contracts are really specific to the trade, so it is ok for the CFTC to decide. The decisions aren’t applicable anywhere else really. Also, they are a counter claim so it really makes sense to give them the power to decide if this transaction was ok.If you take the functional approach- the statutory scheme is upheld. The political process takes care of any issues that would be there.

Know functional and formal approach. Crowell tool: the way courts characterize facts, a formal approach.

Courts say the 7th Amend is only applicable to art 3 cases. Because these AL hearings are statutory proceedings. Also it would just mess it all up because juries don’t have expertise—which is why we have ALJ’s.

Rarely, as a matter of procedural due process- full blown article 3 judges have to be used. Obscenity, the contention that a confession was coerced, and other must be used.

Making law by rules-

Schechter- the president got to set up a whole web of administrators to manage the economy. They tried to implement the codes of fair completion.

American trucking- non delegation doctrine is a doctrine that applies to congress. And makes them identify problems, set up ways to address it and set up means to do that. He says there are no rules, its just a judgment.

When there is a non-delegation problem and it looks like there is a case that is challenging the president for giving too much discursion—the courts aggressively construe the statue to avoid the non-delegation doctrine. See Benzene—and the Osha statue. This is a non deferential aggressive construe of the statue to avoid the non delegation doctrine.

Congress can write statues that are very specific or they can delegate the power to the agency. In the 30’s and 40’s they had the legislative veto where they could change the way the agency had interpreted the statue. So the agency decisions were all effective pending congresses veto—this was held unconstitutional. The potential that a regulation could be vetoed was a problem for people when were trying to work within these states. There was a dynamic where

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the agencies and the sub committees of congress would work out understandings and compromises in the future. Chada whipped this out. (this is why the prof thinks that things are dysfunctional today) this doesn’t work wit the functional approach for checks an balances. Justice burger set out categories (with the basis’s in the constitution) and because of their mutual exclusitivity he found that the legislative veto not within the categories.—so it was ultra varies, and fails the bicameral clause in the constitution and violates the presentment clause. The two house veto is still a violation of the presentment clause.In Chada- it looks like judicial review of the Atty generals decision in the case. The house was exercising judicial powers when it tried to overturn the deportation. Under Powell’s analysis it looks like only legislative review of adjudications would be out.

When courts use formal type considerations there is a lot of judicial flexibility ad way for them to decide how they want the issue to come out

White uses the functional approach. Similar to the O’Connor in the FTC case. He says that the constitution sets up checks and balances and not serration of powers. He concludes that most functions are joint exercises of the different branches.

The president “ shall appoint all other officers that appointments are not here and shall be established by law::Buckley 89-90

Principal officer --- see slide to be sent “ some Appointment Cases”Inferior officer- see slide under the control of someone who is under the control of the president. Can be appointed by someone elseA department- see slide and Free Enterprise FundThis is important because if it is an interior officer then the appointment can be done by the head of the department.Congress by statue my put some restrictions on candidates for officers of the untied states. Like a certain number of D or R on the committee.Vacancies- Recess Appointments ClauseNew hot issue- “a vacancy must exist but need not arise during a Senate recess” but what counts as a recess or vacancy is at issue here. Now… its exists during the recess, which allows the president to appoint someone and then not have to get approval. But they are only in office for the congressional session- 2 years.

Discharges—Principal officers engaging in purely executive functions then the pres candor whatever. If the statue tries to limit the pres then its unconstitutional.If the principal is engaging in quasi- leg work than there can be restrictions on the discharge.See Myers Humphrey’s executor. Ex: CIA director, homeland security, ect subject to presidential whims… employees at will. Any attempt to limit that is unconstitutional.Quasi- leg or Quasi- judicial then they are not at will and congress can limit their removal. Like the FTC, NLRB CFTC NRC, ect. It is supposed to insulate people from the control of the white house. IT is also important to have stable, predictable rules in these areas.

Q: is a person a person who does this___ under but the statue says that the president can only fire if _____. You need to decide what function and what kind of officer the person is serving and then decide if that statue is constitutional or not.

Clinton case—separation of powers.Rule making by non independent agencies. Meyers, SEC, NLRB. Humphries or wiener- quasi judicial quasi- legislative President has directive authority- to HHS to extend the visitation rights. Increased expansion of white house control. This started in the Regan administration.

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DISCOUNT RATE- the future cost and benefits are really high because they have front end cost, and they last for a long time. High discount rate the ____ figure this out. Table page

Reconfiguration of law making power. Line Item veto- Clinton vs. New York The president would sign the bill but cancel specific prevision in the bill. This would allow the president to reform the law essentially. Stevens opinion. Separation of powers—like the Chada case. Exercise of one type of power or another. Scalia dissents and says that line item veto act is ok and give the president executive power. Its like the line item veto was part of every statue after it passed. Congress was ok with giving the president that power- they did it. Bryer—he says that if its necessary and proper and passes the checks and balance tests—so the line item should live. He also notes that congress can exempt something from the line time veto if they wanted. So the money that the president refuses to spend on whatever doesn’t get spent on anything else.

Scope of review Universal camera- default scope of review. SEC 7062b of the APA. Hearings that are grounded in the evidence, in the record. But if there is just an agency and a reviewing court- then the agency will fact find. There is a fair measure of variance. The agency will give deference to the hearing examiner if there is a report that was prepared—especially where creditability was an important factor.

Scope of review- for App ct- thy look at how closely the board looked at the hearing examiners report. Woodby move used when the judiciary is concerned that the agency is deciding cases differently with out telling you why they did and in a way that obscures the fact that they are deciding them differently. INS deportation cases were being decided on something like what categories they belonged to—but the INS used varying burdens of persuasion to make it harder or easier for them to be put out or stay. The move is for the challengers lawyer who is saying the burden is not disclosed so we cant know what to prove. So the lawyer wants it decided by a judiciary as a matter of procedural due process. If the lawyer convinces them that the question is what’s the burden—then the court will be non deferential on the constitutional (due process) question and then it apples the high burden of persuasion. So then its hard for the government to prove that they should be put out. SEE SLIDES. This reduces the agencies discretion and makes it more rigid.

Allentown Mack- SEE SLIDE. So there was testimony by different people and the agency used Rules of thumb (this case used the one that “workers who apply for a job say what they think employers want to hear about unions”) So the NLRB discounted what the potential employees said and then found that there was no good faith in the revote for the union. So the courts before would defer to the agencies rules of thumb because it was based on their experience but SCALIA says no special weight because it stacks the deck in the finding of fact. It whipped out the employees that favored the union. He says the rule of thumb is legal in nature and the the court is just as entitled to decide as we are. He says the agency is disguising it as fact finding. IT hasn’t been used a lot as a tool. This makes it more case by case—no more rules of thumb, which diminished the predictability a bit.

Electerous Parrots- the question is ‘wild’ is law or fact? It lets the court second guess the agencies decision. Defined by species so it’s the courts decision. Newsboys- question of fact Forman unions- Packard- Law fact—just presents optional and arguments that both sides can go with.

CONGRESSIONAL CONTROL OF ADMINISTRATIVE AGENCIESAppointment of Executive OfficialsCongress may not participate in the appointment of administrative officials.Removal of Executive OfficialsCongress may not participate in the removal of administrative officials, except by impeachment by the House and conviction by the Senate.

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Congress may restrict removal of administrative officials to “good cause.”

The Legislative VetoLegislative Veto: Under the legislative veto, congress reserved the power to reject agency action w/ a vote, depending on the particular provision, of both houses of congress, by one house of congress, or by a single congressional committee. Legislative vetoes weren’t presented to the pres for signature or veto.The S. Ct. has struck down the legislative veto as unconstitutional.Other Options- g 83—not important on the test.Congressional Review Act- 1996- when there are rules that greatly affect the economy Congress has 60 days to disapprove. A joint resolution- same decision made by the house, senate and the president. It is mostly symbolic.Enacting regulations as statutes- When statue is rejected it has to be unconstitutional. So the only kinds of challenges that could happen with the statue isJoint resolution of approval.

So basically here Congress is trying to find a way to keep themselves in the loop. The do this through:Apportioned money! Congress can say you can use money on this, not that. Much like Earmarks.They can amend statutes so overrule statues, but this requires both houses.Oversight committees- basically when congress both house and the pres had to ok the statute so it works with Chada.Case work and Constituent Services help congress become familiar with and work in the systems they set up.Presidential appointments- they can also limit the dismissal of these appointees.

Result of Chadha: all legis veto provisions, even if requires both houses, is struck down b/c fails presentment requirement.if provisions are severable, then only provision is gone. If not severable, whole statute is gone. Thus, cts have held provision is severable.this is really a great delegation to President b/c Congress can no longer review the Pres’ administrative agencies’ decisions.

Justice Burger starts the opinion with him explaining that there are leg, exec, and judicial exercise of power and that each should confine themselves to their power. So you look at what kind of power is being exercised and then you can decide who should be doing it. Here- Legislative Power is being exercised because it was “legislative in purpose and effect.” There are only 4 powers that are not legislative that congress can do and they are listed in the constitution – pg 80 a-d. This action is deficient because it: doesn’t live up to the presentment clause, it violates bicameralism clause. This case turns of the fact that it was a leg power. THEN you can see how leg power should be carried out and THEN make sure it was within the leg power given to congress.

So- Leg vetoes are no more, but here the statute (and the others) were severable from the leg veto. Now the power that is delegated to Admin agencies is unchecked. So this makes the Admin agencies very important.

Presidential v Congressional control over administrationSee pages 102-103 to see ways that Congress is trying to limit the power of the president. They may set up statues that specify the qualifications, and other conditions that a person must meet in order to be placed in that position. Ex: no nepotism statue Sec. 3110 (b) or other statues that restrict the appointments clause. A recent example, pg 104, Congress adopted a statutory provision that provides that the administrator or FEMA have certain minimal experience in the field. The president objects in a signing statement and said “the executive board will construe 503 c2 in accordance with the Appointments clause of the constitution.”

Removal or Dismissal of Presidential AppointeesTxt page 106- suggests that the framers had 4 Positions:power to hire and fire should run togetherthe president should be left to fire people at willThe Constitution only talks about impeachment as a way to remove people. So it is the only way.Congress should dole out the power of who can fire and can apply conditions to the hiring or firing. This must be done by enacting a statue.

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The decision of 1789- concluded that the president had the power to remove executive officers of the president.

Questions of law – agency decisions are sufficient as long as non-deferential Art. 3 review exists.Questions of factordinary questions – non-Art 3 judges can make findings and the fed’l cts can use a deferential scope of review (i.e. substantial evidence)constitutional/jurisdictional questions – requires trial de novo of the record by Art 3 judge.

Now – Doctrinal Uncertainty!Due Process - example of using something other than Art 3 to require Art 3 adjudication (5th Amend – federal; 14th Amend – state)theory – interests at stake are so high and of such concern that it would be inappropriate to be adjudicated by non-Art 3 judges who are politically controlled and/or biased. So what were the kind of questions that had to be left to the Article 3’s? whether or not something was obscene?Argue that full blown de novo trial of facts by Art 3 judge is required.Juries are not compatible with the process because it would undermine the “expertise” the agency has and would slow down the process.Areas subject to this protective process:Rate-makingcontention – rates so low that industry can’t make $$, can’t stay afloat.there is a taking, so requires full blown review de novo

Deportation casescontention – where person claims to be citizen, there is a great personal stake – requiring full blown de novo review.Fact- trial proceedings.

Judicial review of agency decisions Q of law- the answers apply to a category of cases. Q of Law- grounded in the constitution. So then the court decides if there is a protected liberty or property interest. Courts give NO deference to the agency when the decision is grounded in the constitution. The courts feel its their duty to interpret the constitution.

Grounded in statue or the agency’s enabling act—the deference depends on the pre-chevron and post-chevron era. First Davis’s interpretative and legislative rule approach. Leg rule- more deference. Interpretive rule- less deference. Leg rule- agency fashioned under circumstances that congress indented them to decide the rules in the area. The leg has delegated it to them.

Chevron-Deferential- chevron- chevron itself. It was kind of a Davis interpretive rule. Then the SC said no. Steven’s says- Step 1- has congress spoken directly to the precise question at issue. If yes-> congressional intended it controls. If congress hasn’t spoken-> then is the agency’s interpretation reasonable and permissible? You usually get to step 2 because congress doesn’t directly speak to the issue very often., if they did they wouldn’t need admin agencies. This increased statutory regulatory flexibility over time. Empowered agencies, and created a more centralized uniform statutory/regulatory structure all the time. Takes power from the lower fed courts.

Non-Deferential Chevron- Cardoza. Steven’s opinion. Change is in step 1. Here Stevens focuses on the foot note in chevron that says “ traditional tools of statutory construction ascertains that congress has an intention….” Lwellen maxims, statutory structure, dictionary. You need to use all the tools. Effects are a relative empowering of lower fed courts. Disabling of the agency and the white house. Less flexibility over time, less centralized.

When do judges use them? Its their politics to use EITHER deferential or non Deferential. So no matter what side they are on they will use their polices to decide if they want to use Def or non. Mead- Stevens says the agency will have to defend its positions under both. When the agency has n and c it has to deal with both sides—but here it didn’t have to do it.

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Skidmore- give the agency’s decision as much weight as it deserves, which is really non deferential.

Brand X internet - agency interprets statue. Does the judiciary’s interpretation get a sare dicisis? Only if the court said it’s the only interpretation of the statue. But if the court never said that then chevron may kick in.

Of their own regulations- agency interpretation is given great deference in this situation. But if the interpretation mimics the statute the courts will look through that to see that its really a stuatory interpretation case.

Kent vs. Dulles- delegation to the state department to fashion rules about the development of pass ports. This is a question of law. This has to be challenged by saying this is unconstitutional by a violation of the 1st amend. The court has to be careful here bc if they decide its not ok then they would have to get an amendment of the constitution. So the courts 1- dear dear interest involved (right to travel here) 2- very specific congressional authorization required. Look to the statue and the practices, ect. 3- act pursuant to statutory authorization

Chevron doesn’t trump Kent. If there is a dear dear interest--- Kent forces congressional direct action.

Hard look review- regardless of the process the agency engages in you use this. 7062a the court will hold unlawful- agency action that is arbitrary, abuse of discretion. Single decisions. Overland park. These decisions can be made in rule making. Vermont Yankee-

Regardless of how the decision was reached---hard look should be used fits in everywhere. ALWAYS use it. You are challenging the agency’s decision saying it was arbitrary, capricious or abusing its discretion. Then the agency has to say ‘here this is how we decided’ A challenge saying that even though they had a statue they were still wrong. NOW the court demands to know how the agency made the decision and if they can show that their outcome will likely stand. N and C really facillated this because now its easier for the court and the agency to say well I used this but not that, ect. APA requires a detail full convincing explanation in certain cases anyway. The courts rarely decide that the outcome is arbitrary, or an abuse of discretion. They don’t want to do that because they would be displacing the agency’s power.

KNOW how a tool pushes things--- like to the rule or case by case side.

Under Making rules- don’t need to know cases because they don’t really have much precedential effect. Except Chenery- know that. So basically know the methods and what they do. THIS goes under Method 6- Chachares case- IRS had rule that they wont wire tap but someone did. The court didn’t care that they had violated their handbook because it wasn’t a substantive rule. They said that practically people didn’t rely on the handbook.

Know ripeness and exhaustion. Exceptions to judicial review.

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