Senate Majority Leader communicated strong views concerning EPA adopting a rule less burdensome on coal interests.EPA adopts rule consistent with his rules
CRT: two part test for undue influence
1) content of the pressure irrelevant/extraneous to issue being considered
2)Agency is affected by pressure
Constitutional requirement for standing in judicial reviewed agency decisions
Lujan v. Defenders of Wildlife (3 elements)
Injury in fact (1. concrete and particularized and 2. actual or imminent, not hypo)
Causal connection between injury and conduct complained of
Likely the injury can be redressed by a favorable decision
Note - procedural violation alone does not satisfy standing requirement
Different methods of analysis whether Crts should defer to agency interpretations of statute and its own rules
Christensen/Mead- Crt should give weak Skidmore deference (based on experience) to interpretation of statute, unless Barnhart factors are present and convince the Crt that Congress intended a strong deference
Barnhardt factors- the granular nature of the legal question; related expertise of the agency; importance of question to administer the statute; careful consideration of the agency over time
Seminole Rock/Auer- Crt gives strong deference to agency statements of interpreting its own rules (note* same deference is not given to agency interpretations of statute governing the regulations being interpreted)Gonzales v
Oregon- agency cannot "parrot" statute in a N&C regulation and then expect strong crt deference to its intepretive policy statements
Gonzales v Oregon (judicial limits on Seminole Rock deference)
agency cannot "parrot" statute in a N&C regulation and then expect strong crt deference to its intepretive policy statements
AG of OR issued a regulation copying a Controled Substance statute, then interpreted the rule to exclude assisted suicide drugs.
SCOTUS found no deference as the agency did not use its expertise to formulate the administrative regulation, and was hiding the ball behind Seminole Rock deference.)
Chevron step 0 failed - AG was not granted rulemaking authority under Controlled Substance statute
Standard of review of questions of fact under hybrid rulemaking
Arbitrary and capricious
APA section 706(2)(A)
Crt overrules decision when it finds decision was not based on consideration of relevant factors or if there was a clear error in judgment (Citizens to Preserve Overton Park, Inc. V. Volpe)
Bi-Metallic Investment Co. v. State Board of Equalization of Colorado (SCOTUS 1915)
(Rulemaking as prospective)
The Board mandated a 40% increase in property values for purposes of tax assessment. Bi-Metallic sued claiming a taking without an opportunity to be heard.
Crt: For efficient administratability, there must be a limit to individual argument in matters that affect the general public. Where a rule is general, it becomes impracticle that everyone affected be afforded an opportunity to "have a direct voice in its adoption.The Constitution does not require all public acts to be done in town meeting or assembly of the whole
Large groups of similarly situated entities may not have a right to an individual hearing even if their property is negatively affected
Humphrey's Exec. v. US (SCOTUS 1935)
Humphrey was names commissioner of FTC by Hoover for a term of 7 years. Statutory removal was allowed for "inefficiency, neglect of duty, or malfeasance." Two years later Roosevelt asked him to resign and fired him when he wouldn't. Humphrey did not agree and insisted that he should receive pay (which his wife pursued post-mortem).
Crt: FTC was estalblished to be nonpartisan and impartial, neither legislative nor executive, but rather quasi-legislative and quasi-judicial. Constitution does not grant absolute authority to POTUS to remove all officers at will.
Unlike postmaster in Myers, commissioners are granted inherent quasi-legislative and quasi-judicial functions. Such functions necessitate independence, which cannot be maintained if commissioners must face removal if they displease POTUS
US v. FL East Coast RR Co. (SCOTUS 1973)
(Ambiguity of "Hearing")(Creation of "Hybrid Rulemaking")
Congress tasked ICC with establishing per diem rates for RR's using another RR Co.'s railroad cars. The ICC convened an informal conference to discuss objections to the roughly planned rates and compiled information. A year later an interim report was issued including tentative decision and notice for the RRs to file position papers within 60 days. The ICC overruled objections and implemented the interim plan.
Two RR companies brought action to set aside the per diem rates established, claiming violation of APA section 556(d) [Required to have an adversarial like hearing for adjudications].
Crt: The term "hearing" in APA section 553 is controlling absent Congressional intent for something more formal (like "on the record" - APA section 556).
Section 553 does not mandate oral arguments to satisfy a requirement for a "hearing."
Even when a statute requires a formal rulemaking process under APA s.556, submission of all or most of the evidence can be in written form if a party will not be "prejudiced thereby."
Chocolate Manuf. Assoc. v. Block (4th 1985)
USDA is tasked with enacting the Supplemental Food Program for Woman, Infants, and Children program (WIC). Congress tasked USDA with assuring the appropriate levels of fat, sugar, and salt content in foods.
Agency proposed a rule to eliminate sugary cereals, but did not discuss flavored milk. The USDA received 78 comments asking flavored milk be banned from WIC.
USDA banned flavored milk and the Manuf. Assoc. sued saying that the final rule was so different from the proposed rule that it was not given proper notice.
Crt: When the final rule deviates from the proposed rule, it must be a "logical outgrowth" from the original rule. Otherwise proper notice was not given.
Is it "in character with"?
Does it "materially alter"?
Tripoli Rocketry Assoc. Inc. v. ATF (D.D.C. 2002)
Agency use of letter
FTA sends a letter to Aerotech, makers of a model rocket fuel 'APCP', saying APCP was an explosive and that its use must be limited. Tripoli takes issue and sues.
FTA says that this in an interpretive rule, or in the alternative a party-to-party letter.
Crt: Three key indicators that a rule was made:
1) official pronouncements made on behalf of ATF
2) Has only future effect from the date of the first announcement
3) statement were designed to convey a final pronouncement of ATF's legal position
This is in fact a rule.
Sugar Cane Growers Cooperative of FL v. Veneman (DC.C. 2002)
(Notice requirement for N&C) (Harmless error and failure to follow N&C)
Food Security Act allowed the USDA to pay farmers in-kind (PIK program) with sugar in return for their not growing sugar crops. Farmers bid to be paid in kind for a percentage of the cost of the crop they would destroy, with participation in the program limited to the price paid and no future increases in farmed land.
USDA indicated it would not create the program without proceeding with N&C rulemaking, but did so after announcing in the Federal Register a "Notice of Program Implementation" without APA rulemaking.
Plaintiff claimed the rule void b/c USDA promulgated the rule without N&C. USDA says PIK was not a real rule, was an isolated agency act, and had no future effect on any third party. USDA argued that even if N&C was not followed, the error was harmless. District Court grants summary judgment for USDA.
Crt: Cooperative wins. A press release in the Federal Register is not sufficient notice, and "utter failure to comply with N&C cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.” The court can invalidate the rule because the rulemaking process was not followed.
Morton v. Ruiz (SCOTUS 1974)
(Agencies can fill the gap but must give notice)
Mr. Ruiz (American Indian) moves near a reservation to work in a mine. Mine shuts down and Ruiz applies for benefits from Ind. Affairs. He is denied based on an UNPUBLISHED agency interpretation of a law commanding BIA to "provide welfare services to needy Indians" to mean only to grant benefits only to Indians "living on" reservations, not near them. Ruiz sues for lack of notice.
Crt: APA holds that rules that affect substantial rights of individuals or their obligations must be promulgated after sufficient notice is given. BIA failed procedurally. Though a benefit (rulemaking not required for benefits under APA s553), the rule which governs how the benefit is given must be promulgated in a manner in which adequate notice is given.
"The power of an administrative agency to administer a congressionally and funded program necessarily requires the formulation of policy and the making of rules to fill and gap left, implicitly or explicitly, by Congress."
Motor Vehicle Manuf. Assoc. v. State Farm Mutual Auto Insurance Co. (SCOTUS 1983)
(Correlation requirement between facts found and rule made)
(Rescinding of rule is agency action)
National Highway Traffic Safety Administration rescinds airbag rule. DOT began instituting a mandatory passive restraint regulation which phased in the requirement that large vehicles have seat belts or air bags. However, a new Secretary assumed office and ordered a one year delay. The agency issued notice, received written comments, held a public hearing, and issued a rule retracting the passive restraint requirement. The agency justified the retraction by stating that it could no longer find enough safety benefits resulting from the use or airbags and safety belts to justify the rule.
The ruling wasn't the result of safety belts and airbags ineffectiveness in preventing death, rather b/c 99% of manufacturers were installing automatic seat belts anyway. Therefore, the benefits of airbags were no longer apparent. MVMA believes the court should evaluate the rule retraction on the basis of a narrower test than the arbitrary and capricious test.
CRT: What is the standard by which an agency action is deemed arbitrary or capricious?
The agency failed to consider important factors before the agency
The agency failed to consider factors that Congress said it must consider.
So implausible that it couldn't be ascribed to indifference
This is a rulemaking. There is a correlation requirement - "there must be a correlation between the facts found and the choice made."
CA Hotel and Motel Assoc. v. Industrial Welfare Commission (Cal. 1979)
CA orders Order 5-76 fixing wages, hours and conditions of employment in the public housekeeping industry.
Under CA law each order was required to be accompanied by a statement of basis and purpose, which was to be substantive enough to reflect the factual, legal, and policy foundations for the action taken. Both industry and labor opposed the law. Some industries are granted exemptions.
Crt: The reason and purpose statement was supposed to be an explanation of how and why, discussing the salient comments. It did not and was a procedural failure.
Vermont Yankee Nuclear Power Corporation v. Natural Resource Defense Council, Inc. (Scotus 1978)
(Courts cannot impose additional procedural constraints beyond procedural minimums required by the constitution, Congress, or by the agency itself)
NRC granted Vermont Yankee a permit to build a nuclear power plant in VT. Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting of a license and a hearing on the application commenced. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. Commission issued the license to Vermont Yankee. NRDC appealed against issuance of license. Appellate Court for Columbia Circuit determined the rulemaking proceedings to be inadequate favoring respondents.
Crt: Overturned. "Nothing in the APA, NEPA, the circumstances of this case, the nature of the issue being considered. past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case.
Chevron, USA inc, v Natural Resources Defense Council (SCOTUS 1984)
(Stationary Source case)
EPA tasked with enacting air quality standards pursuant to an amended Clean Air Act. EPA required to test whether individual states achieved standards and to issue permits regulating new or modified "stationary sources" of pollution. POTUS Reagan came to office and EPA enacted new regulations allowing states to treat all polluters under a "bubble," allowing the overall emissions of a plant to be aggregated- allowing a single bad polluter to shut down one part of its plant to be, on the aggregate, below the threshold.
Crt: Must show deference to an agency rule making decisions. Created the Chevron 2-step:Chevron two step (w/ step 0)
Step 0) Is the agency empowered by Cong to make the regulation?
Step 1) Is the governing statute unambiguous?
Step 2) If the statute is unambiguous, is the decision of the agency a "permissible construction" of the statute?
Auer v. Robbins (SCOTUS 1997)
(Judicial deference to agency's interpretation of its own regulation otherwise fairly promulgated)
Fair Labor Standards Act (FLSA) exempts "bonafide executive, administrative, or professional" staff from overtime pay requirements. DOL promulgates a "salary-based" test to determine whether an employee is an executive employee (not needing wage protection) or a regular employee (needs wage protection). DOL interprets its own regulation to say that an employee is an executive employee if they receive a salary not subject to reduction on the basis of the quality of work performed. A local police leader says his officers are exempt from the overtime requirement because they receive a salary, and the police say they are not exempt because they can be docked pay for disciplinary matters.
Crt:The salary-based test is a matter created by the DOL, within the statutory framework legislated by Congress, so the court will defer to agency interpretation of its own regulation.
The agency has the power to resolve ambiguities within its own regulations
Standard of review: plainly erroneous or inconsistent with the regulation
Christensen v. Harris County (SCOTUS 2000)
(limited judicial deference to an opinion letter)
Under the Fair Labor Standards Act (FLSA), employees can earn comp time, but must be paid if it is not used. A local police force was concerned that it would not be able to pay out all the officers for the comp time they've earned. The police force asks DOL for an opinion letter asking whether it could force its officers to take the time off rather than be paid. DOL says yes, provided that it is agreed upon in the employment contract. The police officers sue.
CRT: The opinion letter is not arrived at through rulemaking or an adjudication, but rather through a simple interpretation of existing laws and regulations.
Judicial deference should be limited to "respect" for the letter, but no Chevron/Auer deference should be given.
Skidmore v. Swift & Co. (SCOTUS 1944)
(judicial review for non-formal and non-N&C rules/guidelines)
7 employee-firefighters- are suing under FLSA. Firefighters were required to be on call, they sued. DOL Administrator issued a guideline explaining its interpretation of the regulation. What weight should be given to this guideline?
Crt: Judicial deference to guildelines depends on four factors:
1) thoroughness of evidence,
2) validity of its reasoning,
3) consistency with prior interpretations and actions, and
US v. Mead Corp. (SCOTUS 2001)
(Congressional intent of final review)
CBP changed a classification of Mead's imported goods from a planner to a bound diary.
Mead sought review in the Federal Circuit, and SCOTUS ruled that no deference could be afforded to the disputed action.
In court, Mead argued that the agency should not be allowed to change its revenue ruling on a whim. The court of int'l trade affirmed. The Federal circuit reversed, saying ruling letters are not entitled to deference because they did not go through N&C or a reasoned opinion in a record.
Crt: The review of court of international trade was de novo. If that's the case, then it was unlikely that the agency's review process was to be considered final agency action and subject to judicial reference.
De La Mota v. Dep't of Education (2 cir. 2005)
(Agency handbook interpreting regulation not entitled to Chevron deference)
Under Title IV you can have your student loans forgiven under certain circumstances.
Crt: 1) The handbook was not authoritative 2) the agency was not bound by its own handbook, 3) it was not made with N&C.
The manual can only be persuassive (per 4 Skidmore considerations).
National Cable & Telecom Assoc. v. Brand X Internet Services (SCOTUS 2005)
(Agency interpretation of statute vs. prior court decision interpretation of statute)
(Chevron deference given to agencies over the opinion of any federal court other than SCOTUS, unless the opinion is based on unambiguous terms of a statute)
FCC promulgates rules saying the FCC should regulate basic service providers more than complicated service providers. Complainants (phone companies) are complaining that as phone companies - more regulated - they must compete with other companies that provide telephone and other services -less regulated. FCC says that they don't need to regulate entities that they don't want to, and makes a rule saying that they will only regulate simple phone providers.
Crt: What should you do when an agency promulgates a regulation that is contrary to a circuit court's judicial interpretation?
Precedential effect that binds agency in the following circumstances:
1) The "clear and unambiguous" nature of the opinion of the court
2) The totality of the opinion
3) It's clear from the overall scheme that no other reading is possible
A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron only if prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.
Long Island Care at Home, ltd. v. Coke (SCOTUS 2007)
(Strong Chevron - agency interpretation given Chevron deference by the Court)
FLSA exempts "domestic service employment" providing companionship services to the infirm from minimum wage and max. hours rules. DOL interprets the law in regulation saying companionship workers are those not employed by the infirm person or their family.
Two N&C regulations are at issue: 1) defines "domestic service employment" as household in nature in or about a private home of the person they are employed by, and 2) under a section titled "Interpretations" says that exempt employees are those who are employed by an employer or agency other than the family or household using their service.
Evelyn Coke, clearly under second regulation, argues the regulation falls outside the scope of Congress's delegation, the two regulations are inconsistent, and an interpretive regulation should not be given judicial deference (warrants a Skidmore review b/c it's persuasive under skidmore, not binding - not persuasive, not consistent). The agency pleads it can fill gaps in the statute through rules and regulations and that it is an expert in the field in which Congress delegated rule making authority.
Crt: Congress's intent was for DOL to fill and interpret the gaps in the law. Chevron binds the courts to defer to the agency if the agency is acting within the authority given to it by Congress. As the regulations were made by a N&C rulemaking process Chevron deference necessary.
Pac. Gas & Electric Co. v. Fed. Power Comm. (D. DC 1974)
Policy statements not applied are not judicially reviewable.
Companies claim Fed Power Comm should have gone through a comment process before issuing a rule. The new rule favored users over contracted parties to energy resources.
Agency: It's not a rule but a statement of policy so no comment is required.
Co: There is a practical effect on the burden of proof makes this interpretation a rule.
Crt: "A properly adopted substantive rule establishes a standard of conduct which has the force of law." A general statement of policy does not establish a "binding norm." This is a policy and not a rule, and therefore not subject to judicial review because it has not been applied yet and it is unclear that it has a legal effect/is the culmination of agency action.
American Hospital Assoc. v. Bowen (DC CIr. 1987)
(What makes a rule interpretive rather than legislative)
In 1982, Congress amended the Medicare system to create Peer Review Organizations (PROs) to review the compliance of health care providers with the Medicare Act. Congress left HHS with broad discretion to implement the PRO system.
HHS issued a number of regulations to govern the PRO program, as well as a series of directives and transmittals. The directives and transmittals containing a variety of instructions, guidelines, and procedures related to the PRO system were issued without notice or comment.
AHA petitioned HHS for N&C rule making, arguing the PRO regulations that HHS had issued were few/incomplete and that the bulk of the procedures governing PROs were not published as regulations. After HHS failed to respond to the petition, AHA sued, arguing that HHS had circumvented the N&C requirements of APA § 553 in issuing the directives and transmittals. AHA sought to have these directives and transmittals declared invalid.
Crt: An agency is not required to conduct N&C rulemaking when issuing a guideline or rule of procedure (organizing, establishing a way to achieve the substantial goals that are articulated in a rulemaking), when an agency gives notice of HOW it will go about implementing an existing standard
Dismas Charities Inc. v USDOJ/FBP (6th Circ. 2005)
(pure legal interpretations aimed at encouraging compliance are interpretive and don't require N&C)
Prison nonprofit contractor houses inmates during the 1st and last 6 months of their sentences per 18 USC 3621(b), which granted FBP discretion to designate a prisoner's incarceration location to be any available penal or correctional facility that meets minimum health standards. DOJ/OLC issues an opinion limiting what constituted incarceration, which FBP used to issue an internal memo curtailing which inmates could go to the prison nonprofit house. The nonprofit sued, saying that the change should have been issued through N&C and that the change was substantive. The agency argued that it was merely an interpretation of the term incarceration to further compliance.
Crt: Rules that rely specifically and directly on the unlawfulness of its previous practice as determined by the OLC are interpretive. They do not change policy, but rather are a legal determination of what the applicable law already is.
Crt: Rules that rely specifically and directly on the unlawfulness of its previous practice as determined by the OLC are interpretive. They do not change policy, but rather are a legal determination of what the applicable law already is.
Center for Auto Safety v. Nat Highway Traffic Safety Admin (D.DC 2006)
(Statement of policy distinguished from legislative rule)
Automakers historically made regional recalls for defects caused by atypical weather conditions. NHTSA send a letter to major automakers saying that though tolerated in the past, the agency was concerned about the effectiveness of regional recalls. NHTSA officials send policy guidelines to their offices saying so. The Center sues saying the policy statement was arbitrary and capricious because it was made without N&C.
Crt: This is not a legislative rule, as the policy was not mandatory. Rather it was a statement of policy that did not constitute final agency action. The agency had not fined an automaker for performing regional recalls.
Assoc. of Data Processing Service Org v. Camp (SCOTUS 1970)
(Standing under the APA)
Since the assoc. is not a party protected under the statute, why do they have standing?
The APA grants standing to those who are likely to be financially injured
A person injured with an interest under the plaintiff
Whether agency review has been precluded by statute?
There is no preclusion of judicial review by statute
There is a genuine dispute that can be litigated - not just an ideological dispute
Lujan v. Defenders of Wildlife
(determining standing- INJURY)
Endangered Species Act seeks to protect species by instructing agency to promulgate regulation of a list of endangered species, and to define their critical habitat. Fish and Wildlife Service promulgated a regulation that opened it to other countries, but DOI reinterpreted section to say that law is subject to US and high seas, NOT foreign nations.
Crt: to determine standing you need to determine the nature of interests involved and nature of injury. P claimed he had proved the injury b/c Ps were going to return at some time in the future; this is not concrete enough
the claim of future injury is speculation and fantasy.
Simon v. Eastern Kentucky Welfare Rights Organization
(third party injury addressed cannot be addressed by action against agency)
Before: you got to the hospital and get your emergency care, you cant get care beyond the minimal services if you are a 501c3. For non-profit hospitals to be declared for profit, would have huge ramifications. Indigents bring suit against IRS because IRS found new ruling that hospitals are still deemed as charitable if they provide emergency room visits to low-income people and nothing else (making it less restrictive). Individuals bring suit for themselves and others in similar situations; claim is that by making ruling less restrictive, IRS encourages hospitals to deny services.
Crt: The case or controversy limitation in Art. III still requires that a federal court act only to redress injury that can be fairly traceable to the challenged action. It is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners encouragement. Complaint suggests no substantial likelihood that victory in this suit would result in respondents receiving the hospital treatment they desire.
Bennett v. Spear
(injury in fact b/c high likelihood of injury)
Endangered Species Act requires DOI to promulgate rules re. list of endangered species to insure that action authorized is not likely to jeopardize the continued existence of any listed animal. If agency determines that something MAY adversely affect species, it must engage in formal consultation with Fish and Wildlife Service, which will then issue an opinion which will outline alternatives if effects are determined. Commercial farmers competing for water sue.
Crt: There is a citizen suit complaining about future economic injury. P has standing because the high likelihood of injury. The Act explicitly allows "any person" to sue the government over an alleged violation (unlike Data Processing "Zone of Interest" applied to anyone)
Abbott Laboratories v. Gardner
(Ripeness without injury)
Law says all drugs must have both proprietary name and the name most people understood them by. Plaintiff, a drug company (of 90% of drug market), challenged this, P had materials all printed out and sought a pre-enforcement review. Parties had two choices- pay a lot of $$ to change labels OR go to jail.
Crt: Declaratory/pre-enforcement review allowed b/c the regulation is final and would penalize drug companies either civilly or criminally. The cost would be great to companies, and while there is no current injury the regulation is final. Under APA 704, person can bring suit if statute allows it or final agency action for which no other remedy other than in court.
Toilet Goods Assn v. Gardener
(Ripeness and final agency rule containing conditions)
Petitioner is a cosmetic manufacturer (has 90% of field), and seek injunctive relief against agency (HHS) because it exceeded its statutory authority: HHS promulgated rule after N&C that if company who uses color additives refuse inspectors access, then certification service is suspended until corrective action is taken.
Legal issue is raised, but not appropriate for judicial resolution. To determine ripeness, court (1) looked at whether issues tendered were appropriate for judicial resolution, and (2) to assess the hardship to the parties. Here, the agency simply MAY have access, and MAY suspend, but the agency had done NONE of those things to the party.
Steps for determining Ripeness:
Is it a legal question?
Is the rule final?
Is there a definitive harm/immediate harm?
Bowen v. Michigan Academy of Family Physicians
Presumption of judicial review in absence of clear Congressional intent otherwise
Association of doctors filed suit to challenge validity of regulation, and HHS claims courts can’t review Act.
Congressional silence = judicial review allowed; statutes that declare agency action is final are construed to permit judicial review (final in admin branch, not in courts)
Heckler v. Chaney
(Heckler Defense to inaction)
Prisoners complained to FDA that drugs used for lethal injection should not be used for that and violated FDCA because FDA did not approve the use of this drug for lethal injections. FDA responded saying no action was going to be taken, said they act when there is serious danger to public health. Prisoners argue the drugs are not labeled properly, that the drugs as used represent a dangerous practice known to the FDA, and often non-doctors administer the drugs.
Crt: By deciding to not act is an agency action, and that action gets deference. The law in this instance is silence.an agency's decision not to pursue an enforcement action is presumptively unreviewable, as such actions are "committed to agency discretion by law" under 701(a)(2).
MA v. EPA
(Inaction not an option when statutory duty for agency action)
MA files a 553(e) petition to ask the EPA to act on global warming. EPA conducted N&C and afterwards affirmatively said they would do nothing. EPA claimed that inaction was in their discretion per Heckler. MA Challenged the order.
Crt: 701 says that if a statute precludes judicial review then it does, but only if the statute says so. The Clean Air Act gives EPA authority to act. There is no statutory preclusion of judicial review. Thus, EPA is subject to judicial review- this is different than forcing EPA to act, but its argument that it doesn't have to act fails.
Crt: EPA was told to act and create policy. In response to a 553(e) petition, there must be a logical reason why it did not act.
In re Bluewater Network & Ocean Advocates
Exxon spilled oil into AK, and Congress enacted the Oil Pollution Act which broadened federal liability for oil spills and required prevention measures. Coast Guard, the enforcing agency, hasn’t promulgated any rules since the Act’s birth, 10 years ago.
Ocean Advocates seek writ of mandamus to compel them to act. Coast Guard started to act in 1991 - N&C- studies set up standards, but left open the installation requirements because of technology issues.
Court: issued writ of mandamus because of violation of act and the extraordinary circumstances. This is a 9 year delay in the face of a Congress command to establish use requirements and CG disallowed any further action
SEC v. Chenery Corp
(Notice is required, and retroactive rules tend to be invalid)(Mischief rule)
The SEC Commission doesn't approve a company's reorganization plan b/c managers can obtain preffered stock at the same value as the public. The SEC's justification for its decision was based on its history of dealings with utility reorganization; however, the SEC had no prior regulation or decision on point for the issue, and denied without having provided Chenery Corp. notice. All of this was based on a statutory provision allowing the SEC to regulate 'unfair trade practices.'
Crt: While retroactive in application, the adjudication (which created a new rule) was validly based on the agency's experience. The retroactivity must be balanced against the intent of Congress and the statutory scheme for the agency to administer matters. "If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactive application of a new standard, it is not the type of retroactivity which is condemned by law."
Bowen v. Georgetown Uni Hospital (SCOTUS 1988)
(retroactive rulemaking is shot down)
HHS changes the rules regarding how it calculated the "wage index" (used to reflect salary levels or hospital employees). Georgetown received a lot of money under the former scheme, and the new rule, being retroactive and prospective in nature, allowed HHS to bring an enforcement action to collect the overpayment.
Crt: Invalid. The retroactivity was akin to a lack of notice.
DUKE POWER CO. v. CAROLINA ENVIRONMENTAL STUDY GROUP,
Constitutionality of the Price Anderson Act
● Case considers
○ Party champions their own rights (personal affect)
○ Injury alleged is concrete and particularized (distinct)
○ Some connection between alleged conduct and claimed injury
○ Must be remedial potential and probable success on the merits
● Finding Price Anderson act unconstitutional would have a direct immediate causal connection and leads to the critique in the dissent not a basis for finding standing
SEC v. Medical Committee for Human Rights (1972)
Court identifies moment in which agency affirmatively decided not to act as finality of agency action
Kixmiller v. Securities and Exchange Comm’n (1974)
P seeks review of advice informally given a corporation by the staff of the Securities and Exchange Commission. The advice was that the staff, for reasons stated, would not recommend action by the Commission respecting the contemplated exclusion from management's proxy materials of a stockholder's proposals for action at a stockholders' meeting. The Commission has refused either to examine the staff's view of the matter or to express a view of its own; it now asserts that we lack jurisdiction to consider the petition for review and urges dismissal. We grant the motion and dismiss the petition.
● Agencies are supposed to be the final arbiters of their own values, resources, enforcement energy
■ Basically says we’re going to ignore certain things in regards to finality
PANAMA REFINING CO. v. RYAN
● Statute gave the president the authority to ban interstate shipments of hot oil. This is oil
produced in violation of state law.
● Agency cannot act because it extends beyond the limits of Art. 1, § 1 – inherently legislative function. Also because of §9(c) of the Act is silent – Silence interpreted to mean that executive can't do it.
● HOLDING: This was a standardless delegation of power. No clear statement of what congress wanted
● “As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.
A. L. A. SCHECHTER POULTRY CORP. v.
Companion to Panama
● National Industrial Recovery
Act provided the president with authority to come up with “code of fair competition”
● Establishes a bottom line: question that's constantly on the table is when is the line crossed?
● HOLDING: NIRA was an unconstitutional delegation of power to the executive branch, because no agency created to administer the act.
INDUSTRIAL UNION DEPARTMENT, AFLCIO
v. AMERICAN PETROLEUM INSTITUTE (Benzene case)
OSHA delegates authority to Sec. of Labor to adopt safety and health standards for the workplace. Standards must be “reasonably necessary or appropriate to provide safe or healthful . . . places of employment.” The Act
directs the Sec. to set the standard that most adequately assures, to the extent feasible, that no employee will suffer material impairment of health. The Act never made clear whether Congress wanted OSHA to balance costs to industry against benefits to workers or whether it should ignore costs.
● Takeaway: Penetrating a rulemaking is something SCOTUS is comfortable doing. In Chevron, they backed off (but chevron hasn't happened yet at the time of this case). After Mead, they're aggressive again. How piercing and penetrating the agency review was is striking.
● HELD: In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Sec. the unprecedented power over American industry that would result from the gov’s view, coupled with OSHA’s cancer policy. A construction of the statute that avoids open-ended grant should be favored.
USA GROUP LOAN SERVICES v. RILEY
● DoE loan program which amended the Higher Education Act
● Negotiated rulemaking act: Allows agencies under circumstances where negotiations are likely to be fruitful, to form negotiating committees composed of representatives of all interests in the potential rule making. - Usually no discovery
● Courts have not required agencies to adopt the rule agreed to in negotiations
Center for Law and Education v. Department of Education (2004)
● Composition of a regulatory negotiating committee is not subject to judicial review
● Controversial because the act of picking the parties who are going to participate is a very powerful political moment if you consider the effect of these negotiated rules
GOLDBERG v. KELLY: review factors
a. “The hearing for redress must be at a meaningful time and in a meaningful manner.”
b. “The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.” (noting that it is insufficient to simply have writings or second hand discussions of what a recipient objecting to termination states).
c. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross examine adverse witnesses, . . . . Welfare recipients must therefore be given an opportunity to confront and crossexamine the witnesses relied on by the department.”
Penasquitos Village, Inc. v. NLRB (1977)
ALJ makes credibility determination (fact finding). Not the role of the reviewing court.
DOMINION ENERGY BRAYTON POINT, LLC v. JOHNSON
Formal adjudication; PostChevron
● Dominion owns an electric generator facility that draws water from several rivers for use in the plant’s cooling system and discharges heated water back into rivers. Under the Clean Water Act (CWA), heated water is considered a form of pollution. Dominion obtained a thermal variance, permitting it to put the
water into the river without a permit — however, upon renewal the EPA and Dominion disputed the terms of the variance. The CWA provided that a variance or permit may be revoked “after opportunity for public hearing.” The agency interpreted this term to mean that formal adjudications are not required
under the act
● HOLDING: Applied Chevron and accorded deference to the agencies interpretation as to whether a formal adjudication is required under
● RULE: “if congressional intent is unclear and an agency’s interpretation of a
statute that it administers is reasonable, an inquiring court must defer to that interpretation. That is so even if the agency’s interpretation is not the one that the court considers to be the best available.” Pg 72
● RULE: The agency’s conclusion that evidentiary hearings are unnecessary and that Congress, in using the phrase “opportunity for public hearing,” did not mean to mandate evidentiary hearings seems reasonable.
NASH v. BOWEN
Health and Human Services imposes reforms to address case backlog
McClelland v. Andrus (D.C. Cir. 1979)
● Party tried to seal personnel files from opposing party; court stated he had to show them
● RULE: “The extent of discovery that a party engaged in an administrative hearing is entitled to is primarily determined by the particular agency [but] the agency is bound to ensure that its procedures meet due process requirements”
● Sometimes due process requires the documents to be seen by the parties
HiTech Furnace Systems, Inc. v. Federal Communications Commission (2000)
No right to discovery
“‘Agencies need not observe all the rules and formalities applicable to courtroom proceedings’”
SCHWEIKER v. HANSEN
● Respondent left a meeting with an SSA representative who erroneously told her she was not eligible for her mother’s SS benefits
● Agency manual required officials to encourage uncertain applicants to file applications immediately
● HOLDING: Government not estopped
Federal Crop Insurance Corp. v. Merrill (1947)
● A local government official, acting on behalf of the FCIC told farmers that their reseeded wheat was insurable against crop failure. Farmers paid the premium and after the crop failed their claim was denied because it turned out the reseeded wheat was not insurable.
● HOLDING: Erroneous statement of the local government official did not estop
the government from denying that the crop was insurable
CARROLL v. KNICKERBOCKER ICE COMPANY
● Workmen’s compensation commission in the matter of the claim of Bridget Carroll for compensation for the death of her husband who was injured while he was an employee of the ice company
● HOLDING: There must be a residuum of legal evidence to support the finding of the administrative agency
Altschuller v. Bressler (1943)
● If there was some scintilla of competent evidence, the court could affirm a record and deem it substantial, even though it was based primarily on hearsay.
● Corroborating hearsay defeats the residuum – noncorroborating
may not (e.g. Carroll)
RICHARDSON v. PERALES
Physician reports, though hearsay, are "substantial evidence" in administrative hearings for SSA benefits.
Reviewed a social security decision rejecting a claim for disability benefits. ALJ denied the claim on the basis of written evaluations made by various doctors appointed by SSA to examine Perales.
NOTE: This case is proof that the residuum rule does not exist at the federal level.
WIRTZ v. Baldor Electric Company (1963)
DOL instituted an administrative proceeding for the purpose of determining minimum wages [in] the electric motors and generators industry.
In connection with this proceeding, the Bureau of Labor Statistics (“BLS”) of DOL sent out a questionnaire, which contained a pledge of confidentiality.
HOLDING: General requirement that where tables of this kind are received in evidence, the documents supporting the tables and on which they are based must also be introduced or at least be made available to the opposing party to the extent that they are necessary for purposes of rebuttal and cross examination. The exhibits are admissible under the broad rule that agencies are not bound by the ordinary rules of evidence. All the more scrupulous should be the effort on the part of the agency to extend to the litigant the right to test evidence thus admitted by the fullest possible crossexamination.
The Government, in situations of the present sort, has an option: it can hold back confidential material, and take the risk of not being able to prove its case, or it can produce the material and allow it to be the subject of direct and crossexamination.
CFTC v. SCHOR
Reparation proceeding filed complaint against a commodity futures broker, alleging violation of the Commodity Exchange Act (fraud, manipulative conduct). The broker voluntarily dismisses federal court action, counterclaims in CFTC proceeding
HOLDING: an administrative agency may, in some cases, exert jurisdiction over state law
○ If you have a phalanx of nonArticle III tribunals equipped to do the business of the courts – that’s a problem, but if not, then likely okay.
○ Nonpayment cases are the province of the state court – not at the agency level
● RULE: “[T]he constitutionality of a given congressional delegation of adjudicative
functions to a nonarticle III body must be assessed by reference to the purposes underlying the requirements of Article II.This inquiry, in turn, is guided by the principle that “practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.”
RULE: Among the factors examined, the Court has “focused [on] the extent to which the “essential attributes of judicial power” are reserved to Article III courts, and, conversely, the extent to which the nonarticle forum exercises the range of jurisdiction and powers normally vested only in Article II courts.”
DeShaney v. Winnebago County Dept of Social Services (SCOTUS 1989)
(Failure to protect based on a discretionary agency decision does not give rise to cause of action) (Due process as a limitation on state action, not a force mandating state action)
DeShaney was suspected of child abuse and was interviewed by Social Services. Nothing happened. A year later his child was beaten again. The child was later, repeatedly treated for suspicious injuries, and social services instituted monitoring procedures but did not intervene or remove the child. DeShaney finally beat the child into a coma and caused permanent brain damage to the child.
The child’s mother brought suit against the Social Services, saying that the gov’t’s failure to prevent the harm to the child by providing adequate protection from his father.
Crt: A bad decision alone cannot give rise to a cause of action. Only if there is a state-created special relationship, or a state created danger, is the state required to intervene. Unless you are a ward of the state, you typically don’t have a basis for action on a section 1983 case.
Town of Castle Rock, CO v. Gonzales (SCOTUS 2005)
(Prosecutorial discretion is protected) (Gov’t agencies being protected from acting reasonably)
Wife has a restraining order against her husband limiting his visitation of their three girls. He violated the order. She called the police. He called her and said that he had their girls at an amusement park. She called the police again multiple times, and filed a claim in person, seeking enforcement of the restraining order. The police brushed her off. The husband killed the little girls and, armed, stormed the police station resulting in his death.
The mother sued saying the police failed to protect the girls and enforce the order. The police counter saying that the choice to enforce the action was a determination left up to the police in their “reasonable” discretion.
Crt: A benefit is not a protected entitlement if government officials may grant or deny it in their discretion.
Through the language of the order, the police were given the power to decide whether it was reasonable to use their resources to enforce the issue given the facts of the case.
Goss v. Lopez (SCOTUS 1975)
(Irreplaceable deprivation of a right requires some process)
Kid is suspended from school without a prior hearing.
OH law says that a hearing is required upon threat of suspension of ten days or more before the child can be suspended.
Crt: There is a constitutional interest involved in education. The ten days of missed school cannot be replaced. Two step process in constitutional deprivation cases:
Is there a constitutional interest?
If so, is the hearing in advance?
Wright v Ingraham
(Corporal punishment-physical well-being as a property interest?)
Miami school paddles a child. Ingraham was an 8th grade student who did not leave the room quick enough. The principal forced him over a desk and paddled him over the butt over 20 times (the norm was 5-10 for severe punishments). He got a severe hematoma and was bed ridden for 11 days. Parents brought suit for cruel and unusual punishment.
Crt: The perceived excess of force would be best handled at a more local level. The cruel and unusual punishment of the 8th amend. did not apply because the student has the ability to evade the situation that an inmate cannot avoid.
The student does not have a liberty interest in not being beaten.
Camara v. Municipal Court of the City and County San Francisco
Coal mining case (Camera) - No warrant is required for specific, regular regulation necessary for effective regulation.
Donovan v. Marshall
(is the basis of some regulation give the ability to say you are pervasively regulated) (General regulation is not pervasive regulation)
The fact that the regulated entity was regulated by OSHA and IRS did not make them pervasively regulated. The regulatory agencies were too generic, not specific enough, and they did not give an idea of what was going to be searched and how frequently it was to be searched.
Wyman v. James
(Consent to searches eliminates need for warrant) (Midnight father's case)
Search of home of recipient of public assistance. Unannounced inspections late at night to see if there was someone living there with an income. Weyman denies the right to the search, state said that acceptance of public assistance means that they have a trust interest in the money and that the regulations were such that consent was inherent.
Crt: The regulation is pervasive and the government has an trust-interest in the benefits given.