administrative law outline - uncategorized - 2_4

8/20/2019 Administrative Law Outline - Uncategorized - 2_4

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I. Administrative Procedures Acta. Informal Rulemaking

i. Primary process for promulgating rules under the APA is notice and comment rulemaking underthe APA § 553.

ii. Principle requirements of informal rulemaking are notice, opportunity to comment, and pulication of the decision together !ith a concise general statement of asis and purpose.

. "hapter 5 # Rule $akingi. § 553 # Rule $aking

%. Informal, three step process.&. 'ormal, must incorporate § 55( and 55)

ii. § 55* # 'ormal Ad+udicationsiii. § 555 # Ancillary $atters Informal Ad+udicationsiv. § 55( # -earings Presiding /mployees Po!ers and 0uties 1urden of Proof /vidence Record

as 1asis of 0ecisionv. § 55) # Initial 0ecisions "onclusiveness Revie! y Agency 2umissions y Parties "ontents

of 0ecisions Recordc. "hapter ) # udicial Revie!

i. § )4& # Right of Revie!ii. § )43 # 'orm and enue of Proceeding

iii. § )4* # Actions Revie!aleiv. § )45 # Relief Pending Revie!

v. § )4( # 2cope of Revie!II. Administrative Ad+udication

a. Ad+udicatory 0ue Processi. Procedural 0ue Process Requirements

%. Individual vs. 6roup 7Ad+udication vs. Rulemaking8a. 9ondoner. 0enver 7%:4;8 # udicial

i. "ity levied ta


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c. 9ook to 0ue Process "lausei. $athe!s v. /ldridge 7%:)(8

%. Assessment of process adequacy requires consideration ofa. @he importance of the interests of private parties . @he governmental interest in procedural efficiency

7cost of added procedures8c. @he likely contriution of various procedural

ingredients to the correct resolution of disputes

7risk of error and incremental value of added procedures8

ii. "leveland 1d. of /ducation v. 9oudermill 7%:;58%. $inimum procedural requirements are a matter of federal

la!, not 2tate la!, conferred y the "onstitution and thus leftto court discretion

iii. Pension 1enefit 6uarantee "orp. v. 9@ "orp. 7%::48%. udges lack the authority to go eyond statutory procedural

requirements in imposing ad+udicatory proceduraloligations on federal agencies

ii. 2ustantive 0ue Process%. /ssential principle of due process is that a deprivation of life, lierty or property e

preceded y notice and opportunity for hearing appropriate to the nature of the case

&. Propertya. 2tatutory /ntitlements

i. 6olderg v. Delly 7%:)&8 # Right%. 2tatutory entitlements are BpropertyC for anyone !ho claims

to satisfy the statutory criteria for eligiilitya. Individual must already e receiving the enefits

&. /ntitlement eneficiaries are entitled to a pre>deprivationoral evidentiary hearing.

a. Eelfare provides the Bvery means y !hich to liveCand deprivation creates an Bimmediately desperatesituation.C

. 1eneficiaries have limited aility to edeprivation hearing acceptale for privileges&. 0istinguishing 6olderg

a. 0isaility eneficiaries have less need than !elfarerecipient

. 0octors have a etter aility to communicate in!riting

c. Issues in disaility cases are more o+ective innature

. "ontractual Rightsi. 1d. of Regents of 2tate "olleges v. Roth 7%:)&8 # Privilege

%. @o have a property interest, must have more than an astractneed or desire for it. Fne must e entitled to it

a. /mployment contract is contract for livingsustainment

&. Property interest not created y "onstitution, ut rather ye


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a. 2indermanns contract said year to year, ut manualsaid teachers should feel they have tenure so longas teaching !as satisfactory 7implied contract8

iii. "leveland 1d. of /ducation v. 9oudermill 7%:;58 # Right%. 2ecurity guard made error on application, error discovered

months after hiring. @erminated !ithout notice and given post>termination hearing

&. Pulic employees are entitled to pretermination notice and

opportunity to respond, using $athe!s testc. $iscellaneous

i. 6ilert v. -omar 7%::)8%. GP0 officer suspended for eing arrested and charged !ith

felony&. "ourt holds he is not entitled to pre>suspension hearing

ecause it !as 7a8 suspension and not termination and 78 allthe facts !ere evident from his eing charged !ith the crime

ii. 6oss v. 9ope= 7%:)58 # 2tudents given %4 day suspension entitled tonotice plus hearing 7may e contemporaneous8

%. -earing need not have impartial decision maker due to non>adversarial nature of school and schools legitimate interestin maintaining discipline

iii. Regents of the Gniv. of $ich. v. /!ing 7%:;58%. "ourts should not overturn academic decisions unless

decision !as sustantial departure from academic norms soas to signal aritrary or capricious +udgment

3. 9iertya. Eisconsin v. "onstantineau 7%:)%8 # persons name posted on Be9udlum 2teel "orp. 7%:)&8

a. BAfter hearingC is not the equivalent of Bon the record after opportunity for anagency hearingC of APA § 553

&. Gnited 2tates v. 'lorida /ast "oast Rail!ay "o. 7%:)38 # Rulemaking procedure tochange per diem charges for use y one railroad of freight cars o!ned y another

a. BAfter hearingC does not mean that oral testimony is requiredi. @urning to APA, "ourt concludes that Bafter hearingC does not

necessarily emrace either right to present evidence orally and cross>e


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. B0istinction in administrative la! et!een proceedings for the purpose of promulgating policy>type rules or standards, on the one hand, and proceedingsdesigned to ad+udicate disputed facts in particular cases on the other.C

i. 1i>$etallic Investment "o. v. 2tate 1d. of /quali=ation versus9ondoner v. 0enver

%. 1i>$etallic did not include statutory interpretation, !asrather due process

&. 2ingle vs. across>the>oard focus

ii. 2plit among the circuits%. 2ome say 'lorida /ast "oast applies only to rulemakings

7%st, 0", and :th8, others say it applies to rulemakings andad+udications

3. "hevron G.2.A. v. Hatural Resources 0efense "ouncil 7%:;*8a. If language is amiguous, then "ourt must uphold reasonale interpretation of

language y agency . /very court has held that it is BreasonaleC for an agency to interpret BhearingC

to refer to a !ritten eyear proationary rene!al !ithout hearing*. "ourt held that ecause petitioners !ere Bparties in interestC

!ithin the meaning of statute, the '"" had denied their right y proceeding !ithout a formal hearing

ii. Fn>the>Record Ad+udicatory Process%. Roadmap

a. Initiationi. Requirements of "ommencing 'ormal -earing per APA


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%. Hotification to parties of time, place and nature of thehearing, and of legal authority under !hich it is to e held

&. If ad+udicatory, notice must indicate matters of fact and la!asserted y agency 7APA § 55*787388

3. If private persons are moving parties, then other parties must e given notice of controverted issues of fact and la!

. Informal 2ettlementi. Ehen time, nature of the proceeding and pulic interest permit,

agency is required to give parties the opportunity to settle 7APA §55*788

c. Initial 0ecision $akeri. Gnless designated y another statute, agency can have A or A9

7APA § 55(788ii. Presiding officer has po!er to assure smooth conduct of proceedings

such as to administer oaths, issue supoenas 7if agency has supoenaauthority8 and make evidentiary and procedural rulings 7APA§ 55(7c88

iii. Agency can determine that presiding officers role is limited tocompiling formal record !hich must e certified to agency for finaldecision 7APA § 55)788

d. /


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%. Re+ects Bresiduum ruleC stating that courts could not upholdagency order under the test of Bsustantial evidenceC unlessrecord contained at least a residuum of non>hearsay support

&. APA § 55( # All relevant evidence allo!ed +. 2upoena Po!er

i. APA states that supoenas !ill e issued !hen it is reasonalynecessary for the full presentation of the case

%. 5th and ;th "ircuits grant right to supoena !henever

claimant seeks one&. &nd, (th, and )th "ircuits hold that grant of supoena is

!ithin sound discretion of A9s 7fits !ithin $athe!s v./ldridge rationale8

&. "onsistencya. 2tare 0ecisis

i. Agencys departure from prior la! must e e(4M Kyes


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iii. A9 claimed interfered !? decisional independence and due process%. 0ist. "ourt +udges not say agency can make A9 !ork

harder &. "ir. "ourt sees 22A interestsJ FD !? statutory command,

no violation of due process, and A9 still independent&. "ontrolling Ad+udication @hrough Rulemaking

a. -eckler v. "ampell 7%:;38i. 22A ne! rule say Bif can perform duties of any +o any!here in

economyC and had tons of vocational e


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&. 0ispute is deemed y agency to lack precedential or policydevelopment significance

3. 0ispute does not significantly affect unpresented parties*. A full pulic record of the proceedings is not important5. Agency does not anticipate a need for its o!n continuing

+urisdiction over the matter in the controversyiii. udicially enforceale

%. Agency head has discretion 7!ithin 34 days of aritrators

final order8 to terminate proceeding and vacate the a!arda. Agency may have to reimurse parties cost of A0R

III. Administrative Rulemakinga. Agency Authority to $ake 9egislative Rules

i. All agencies have the inherent po!er to issue rules of procedure and interpretative rules%. Interpretive rules > non>inding rules that tell the pulic ho! the agency interprets the

statutes it implementsii. $ost, ut not all, agencies also have the po!er to issue legislative rules

%. 9egislative rules > rules !ith legal effects that render them virtually indistinguishalefrom a statute

&. Hational Petroleum Refiners Assn v. '@" 70" "ir. %:)38a. 'rom %:%*>%:(4, the '@" takes the position that it does not have the po!er to

issue rules. @herefore, it cant deal !ith an industry !ide practice # must

ad+udicate on case>y>case asis, !hich is very urdensome, long, andarduous.

. -o!ever, sees industry !ide prolem # sale of gas should have a postedoctane content ecause not including octane content is an unfair trade practice # and so issues a legislative rule mandating posted octane content.

c. "ourt # '@" has po!er to make inding trade regulations.i. 'ocused on provision of '@" Act that gave the '@" the po!er to

make rules and regulations.ii. All authority need not e found in e


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c. Procedural requirements prescried y the APA satisfy !hatever minimumstandards due process includes

ii. 2ustantive Revie! and the Rulemaking Process%. Rule is unla!ful if it is aritrary and capricious 7APA § )4(7&87A88&. 2ustantive Revie! Futside the APA

a. Pacific 2tates 1o


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elts and study that found that only 54M of driversdisconnected seat elts !ith ignition interlocks

iii. Procedural Requirements of APA § 553%. Hotice and Fpportunity for "omment

a. Requirementsi. Hotice must include reference to any studies or other materials on

!hich agency may rely as part of its asis for final rule # Hova 2cotia'ood

ii. Hotice must Badequately foreshado!C final rule, and final rule must e Blogical outgro!thC of notice and comment process

. Gnited 2tates v. Hova 2cotia 'ood Products 7&nd "ir. %:))8i. udicial revie! must e on the B!hole recordC

%. /


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ii. /.g. 2angamon alley @elevision "orp. v. Gnited 2tates 70" "ir.%:5:8

%. Ehere t!o or more individuals are competing for a valualeright, agency is prohiited from engaging in e< partecommunications

iii. @hink of 9ondoner versus 1i>$etallic distinction. Person versus a person fighting over the same thing 72angamon alley8 # this is onthe 9ondoner side of the distinction, and due process applies,

meaning need more procedural fairness and no e< partecommunication.

%. -ere, !e are on the 1i>$etallic side !ith a flat prohiitioneffecting all parties the same amount. @herefore, strict procedural protections that due process violation triggers isnot present

d. 2ierra "lu v. "ostle 70" "ir. %:;%8i. Gnless emaker . Potential sources of ias

i. Pecuniary, relational, prior role in dispute, pre+udgmentc. Rulemaking

i. Assn. of Hational Advertisers v. '@" 70" "ir. %:):8 # '@""ommissioner made pulic comments concerning regulation ofchildrens advertising declined to recuse himself from rulemaking."ourt upholds.

%. A commissioner should e disqualified only !hen there have een a clear and convincing sho!ing that agency memerhas unalteraly closed mind on matters critical to dispositionof proceeding

a. Ehen a proceeding is classified as rulemaking, due process ordinarily does not demand proceduresmore rigorous than those provided y "ongress7legislative vs. +udicial8

i. 2hould not impose +udicial roles uponadministrators !hen they perform distinctfunctions

. @he mere discussion of policy or advocacy on alegal question is not sufficient to disqualify anadministrator 7rulemaking is a policy +udgment8

d. Ad+udicationi. 2tandard is Bpreliminary eliefC # a tentative preliminary elief

regarding the ad+udication !ill disqualify a +udge.ii. $uch more likely to e disqualified in ad+udication.

iii. "inderella "areer O 'inishing 2chools, Inc. v. '@"%. Pre+udged and given the appearance of having pre+udged

issues of fact y pulicly critici=ed certain usiness practicesand referred to them as BdeceptiveC.

a. "ommissioner cant e involved !ith ad+udication


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&. @est is !hether a disinterested oserver may conclude thatthe agency has in some measure ad+udged the facts as !ellas the la! in advance of hearing it.

e. ust ecause use of evidentiary hearings in the rulemaking process does notmean the "inderella standard applies to rulemaking

5. /


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*. A rule does not ecome an amendment merely ecause itsupplies crisper and more detailed lines than the authority eing interpreted

iv. "ommunity Hutrition Institute v. oung 70" "ir. %:;)8%. '0A created Baction levelsC for contaminates and eventually

made them pulic&. 0espite the fact that '0A !ould have to prove a violation of

the Act itself and not merely non>compliance !ith an action

level 7thus, not force of la!8, court rules that '0A ounditself y announcing guidelines from !hich it did not deviate

3. Test for policy statements

a. Agency cannot ind itself in a policy statement. A policy statement can only announce general policies that do not actually ind the agency to actin accordance !ith the policy statement. Agencymust remain free to act in a manner inconsistent!ith policy statement in a given case.

*. 0ecision has een critici=ed for making it so that agencies!ont pulici=e its enforcement criteria, therey limitingnotice to affected parties of !hat actions they can take toavoid legal challenges

v. 0eference to agency interpretations%. In 2eminole Rock 7%:**8, 2. "t. held that a court must defer

to any plausile agency interpretation of an agencyslegislative rule, ut in 6on=ales v. Fregon 7&44(8, 2. "t.held that no deference is due an interpretation of a rule thatmerely parrots a statute

c. Implementing Administrative Policy Eithout 9egislative Rulesi. $aking general rules of conduct

%. "an declare them through ad+udicatory decisionsa. Gnless "ongress says agency can decide only y APA § 553, then agency has

the discretion to decide a rule through ad+udication. . Allo!s for fluctuation of policy !ithin each administration

i. 'ear of ause of discretion if retroactive application of ne! policy

7through ad+udication8&. "an use rulemaking procedure of § 553a. "ourts sometimes say can only use § 553, not ad+udicatory cases

i. Hever have had a ma+ority of the 2upreme "ourt say this . Advantages # prospective, parties are on notice and cant e surprised

ii. 0iscretion to Ad+udicate 7vs. Rulemaking8%. 2/" v. "henery Q"henery II 7%:*)8

a. 2/" looks at a practice engaged in y corporations and says it is illegal ecause the 2upreme "ourt says it is illegal.

. "henery "orporation argues that 2/"s interpretation of 2upreme "ourtopinions !as !rong.

c. "ourti. "henery is right # 2/"s interpretation of the practice !as different

than 2upreme "ourts, and therefore reverse decision sayingunla!ful.

d. Remandi. 2/" still thinks practice is unla!ful, so affirmed the decision, ut on

other grounds # e


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f. Rulesi. An agency can announce generally applicale principles on a case>

y>case asis in ad+udications rather than in a rule ecause Bnot every principle essential to the effective administration of a statute can orshould e cast immediately into the mold of a general rule.C

ii. An agency can take an action on remand identical to the actionreversed y the court if the agency can provide a different and legally permissile asis for the action.

&. H9R1 v. Eyman>6ordon 7%:(:8a. Previous case, /faithreliance on 1oards pronouncements

3. Hor are fines or damages involved . 1o!en v. 6eorgeto!n Gniv. -ospital 7%:;;8

i. Rule made through ad+udication can e applied retroactivelyii. § 553 rules do HF@ apply retroactively

*. Rules must e follo!ed until changed y rulesa. Ehere the rights of individuals are affected, the agency must follo! its o!n

procedures . Fnce standards are promulgated, even if an agency is required to impose such

standards, the agency must proceed accordingly 72ervice v. 0ulles, %:5)8i. Hot grounded in 0ue Process "lause, ut rather, possily, in APA §

)4( 7directing court to set aside aritrary and capricious actions8c. -o!ever, it is al!ays in the discretion of a court or administrative agency to

rela< or modify its procedural rules adopted for the orderly transaction of usiness efore it !hen in a given case the ends of +ustice require it. @heaction or either in such a case is not revie!ale e


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. Agency had long interpreted a statute, dealing !? Hative American health enefits, through case>y>case ad+udication

i. Fnly applied to those living on reservation%. Rui= left for +o, and !hen lost, agency !ouldnt give S&. Rui= says never !ould have risked that for family if kne!

c. @he 2ecretary does have the po!er to create reasonale classifications andeligiility requirements in order to allocate the limited funds availale to himfor this purpose, ut in such a case the agency must, at a minimum, let the

standard e generally kno!n so as to assure that it is eing appliedconsistently as so as to avoid oth the reality and appearance of aritrarydenial of enefits to potential eneficiaries

d. @he APA !as adopted to provide, inter alia, that administrative policiesaffecting individual rights and oligations e promulgated pursuant to certainstated procedures so as to avoid the inherently aritrary nature of unpulishedad hoc determinations

i. 0ifficult ?c dealing !? an individual, not a ma+or corporatione


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c. Heed unanimity at end to issue a ruled. Arises in very controversial situations, doesnt !ork

i. Agreement either through attrition 7ogus8 or +ust resort to § 553 andeven more time !as !asted

I. 2uits to Revie! Administrative Actiona. Intro

i. Pulic 9a! Remedial 2ystem%. 2ee page );%

. 2cope of Revie!i. Presumptive 1ut 9imited Revie!

%. "iti=ens to Preserve Fverton Park v. olpe 7%:)%8a. Procedure

i. 0F@ trying to decide !here to put high!ay in $emphis # federalfunding !? local approval

ii. 0F@ proceeding !as informal ad+udication # APA § 555%. $ost agency decisions are this type

iii. APA § 555 provides three rights%. If provide a statement to the agency, can get a copy&. If consult agency, have right to counsel3. If make a !ritten request, entitled to !ritten response

iv. Ho procedural guidelines for the agency

v. Ho due process issues ?c doesnt single out individuals 71i>$etallic8vi. "iti=ens to Preserve !ant +udicial revie! of the decision

%. 2tatute is silent aout revie!aility . APA §)4%7a87%8 # Action su+ect to +udicial revie! unless statutes precludes

i. Presumption of revie!aility can e overcome only y clear andconvincing evidence

c. APA §)4%7a87&8 # udicial revie! unless action is committed to agencydiscretion y la!

i. Fnly in rare instances !here statutes are dra!n so roadly that in agiven case there is no la! to apply

d. 2tandard of revie! 7APA § )4(7&87A88 is aritrary and capriciousi. 0eference to agency

ii. If the +udge !ants to hold that an agency action is aritrary and

capricious, says that the revie! should e Bproing in depthC andBsearching and carefulC.iii. If +udge !ants to hold that agency action is HF@ aritrary and

capricious, say that revie! is Bnarro!C.e. 2ustantial>evidence test is authori=ed only !hen the agency action is taken

pursuant to a rulemaking provision of the APA or !hen the agency action is ased on a pulic ad+udicatory hearing

&. Post "iti=ensa. APA § 555 applies to informal ad+udication . Presumption of revie!aility still around, ut narro!er and !eaker

i. 0o not al!ays need clear and convincing evidence that not to erevie!ed

ii. ust look to see?infer !hat congress !antedc. "ourt more !illing to conclude that "ongress didnt intend court to revie!

and that congress conferred discretion to the agency 7no longer narro! andrare8

d. 9ess !illing to find +udicial revie! standard in statutory languagee. Ho longer ale to call decision maker to testify

i. ust request a statement of reasons from the agency as to !hy madedecision

f. BHo la! to applyC standard still stands # more fle


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a. Gnder § ))&7a87&8, even !hen "ongress has not affirmatively precluded +udicial oversight, revie! is not to e had if the statute is dra!n so that a court!ould have no meaningful standard against !hich to +udge the agencyse court shall Bdecide questions of la!C and Buphold findings of fact if

supported y sustantial evidenceC&. "onsolidated /dison v.H9R1 7%:3;8

a. 2ustantial /vidence Bsuch relevant evidence as the reasonale mind mightaccept as adequate to support a conclusionC

i. ery deferential to agency decisions #even if not agree, must affirm if reasonale

3. Gniversal "amera "orp. v. H9R1 7%:5%8a. "ourt must consider oth the evidence that supports the finding and the

evidence that detracts from it 7!hole record8 . 2till very deferential, ut court looks at !hole record

i. Agencys findings of fact, not the A9s, are deferred toii. 1G@, A9 findings are still part of record, so considered as evidence

*. Applies only to findings made in formal ad+udication or formal rulemaking unlessorganic act specifies evidence revie!

a. AO" applies to findings in all other cases, ut it is not clear there is any real

difference et!een the t!oiii. udicial Revie! of 2tatutory Interpretations

%. H9R1 v. -earst 7%:**8a. $a+ority 758

i. "ourt must uphold agency conclusion if B!arrant in record andreasonale asis in la!C 7Bmore than a mere scintilla or such relevantevidence as a reasonale mind might accept as adequate to support aconclusionC8

%. It is H9R1s +o to decide !hether policies of H9RA !ould e furthered y including ne!soys in scope of statute,su+ect to deferential revie!

ii. Nuestions of statutory interpretation, especially !hen arising in thefirst instance in +udicial proceedings, are for courts to resolve, giving

appropriate !eight to the +udgment of those !hose special duty is toadminister the questioned statute%. 1ut !here the question is one of specific application of a

road statutory term in a proceeding in !hich the agencyadministering the statute must determine it initially, therevie!ing courts function is limited

iii. Issues of fact%. § )4(7e8 says court must uphold agencys finding of fact if

reasonaly supported y evidenceiv. Issues of la!

%. § )4( says courts decide issues of la! !ith no deference . $inority 7*8

i. @his is an issue of la! that should e resolved through application ofcase>la! involving respondeat superior and responsiility for!ithholding ta%>* Result . Plurality 7*8

i. @his !as not consistent !ith the statute. 2tatute prohiits a morestringent health ased standard !ithout first making a requiredfinding that current e


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%. $ust sho! significant risk in order to make the healthstandard more stringent.

&. Ho support provided that limit should e reduced to thelo!est possile level. In addition, no evidence that en=eneincreases the risk of cancer at the lo!er level.

3. 1urden on agency to sho!, on the asis of sustantialevidence, that it is at least more likely than not that long>term estep proof of cause and effectc. American Petroleum Institute . /PA 75th "ir. %:;%8i. Agency must e accorded considerale deference, so long as not

aritrary and capricious and so long as the agency gives at leastminimal consideration to the relevant facts as contained in the record

d. Pulic "iti=en -ealth Research 6roup v. @yson 70" "ir. %:;(8i. "ourts function is to search for sustantial evidence, not proof

positive%. Ehen the evidence can e reasonaly interpreted as

supporting the need for regulation, the court must affirm theagencys conclusion, despite the fact that the same evidenceis susceptile of another interpretation

e. 0auert v. $errell 0o! Pharmaceuticals 7%::38i. @o e admissile in federal court, an e


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i. "overs all information an agency disseminates for any purposeii. Agency must estalish and follo! internal procedures to assure

reliaility, o+ectivity, and quality of information it disseminatesiii. $ust afford an opportunity for any private party !ho disputes the

accuracy, o+ectivity, or quality of the info disseminated to seeks itscorrection or !ithdra!al

v. Interpretations of 9a!%. "hevron v. Hatural Resources 0efense "ouncil 7%:;*8

a. Ehen a court revie!s an agencys construction of the statute !hich itadministers, the court is confronted !ith t!o questions

i. Ehether "ongress has directly spoken to the precise question at issue.If so, that is the end of the matter

%. If "ongress had included a definition of source in the statute # it !ould e all over. 0efinition !ould ind the agency andcourts.

&. Gse traditional tools of statutory construction to decide!hether a term has a fi


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interpretation claiming deference !as promulgated in the e


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%. Eording of the 2tatutea. BIn his discretionJ!henever he shall deemJ

advisaleJC&. "ontediscrimination assns petition 2/" to

issue rule that roadly requires corps to report their activitiesin these areas. 2/" re+ects petitions and issues only narro!>scope rule after conducting rulemaking. Assns seek revie!

&. "ourt allo!s revie! of a decision not to issue rule afterconducting a rulemaking

a. Ehen an agency has already gone through therulemaking procedure, "ourt is not telling theagency to reallocate its resources ecause it hasalready allocated them

ii. Am. -orse Protection Assn. v. 9yng 70" "ir. %:;)8%. Agency decisions to refuse to issue or amend a rule in

response to a petition are su+ect to deferential revie!


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&. APA §5537e8 requires agencies to allo! interested persons to petition for issuance, amendment or repeal of a rule and togive rief statement of grounds for denial

3. Ehere agency fails to provide an adequate eAm Agric. Prod. v. -ardin 7%:)48 O /0' v. Ruckelshaus 7%:)%8%. Ehich of the follo!ing decisions y the /PA under 'I'RA

are final and immediately revie!ale&. 7%8 0ecision to initiate cancellation proceeding

a. 'ails oth part 7%8 and 7&8.3. 7&8 0ecision not to initiate a cancellation request

a. 7%8 0efinitely final # end of agency process. . 7&8 et no formal legal effect.

i. 2u+ect to "haney # not enforcement so

non>revie!ale.ii. "annot force an agency to commitresources to this matter unless you have a7%8 statutory command, !ith 7&8 la! toapply.

*. 738 0ecision to cancel pesticidea. 7%8 0efinitely final. . 7&8 9egal effect # yes. @his eliminates the right to

sell this pesticide in commerce, and thereforedirectly effects people. @his is a legal effect.

5. 7*8 0ecision not to cancel after going through the processa. 7%8 /nd of process 7even though could start another

one do!n the road8. . 7&8 Although doesnt change the status quo, may

have a direct effect on someone, and !ill not eoverturned y "haney ecause "haney does notapply # !ent through entire process and alreadyallocated resources, so although revie! going to every deferential, this is still revie!ale.

i. Ehen inaction has the same impact on therights of the parties as denial of relief,agency cannot preclude revie! y castingits decision in the form of inaction ratherthan in the form of an order.


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(. 758 Agency ignores the petition to cancela. @his !ill never e final.

). 7(8 0ecision to suspend selling of pesticide pending outcomeof cancellation proceeding

a. 7%8 @his may e deemed as final even though it issimply a suspension and not the end of the process, ut it depends on the time limit for suspension.

. 7&8 Again, !hether this has legal consequences that

are direct depends on length, as !ell +udge.i. 2ome !ould say no legal consequences #

status quo remains the same. Fther, more progressive, !ill say thousands of animals!ould have een killed.

c. "ircuit courts split, and 2upreme "ourt has deniedcert.

d. Agency 0elayi. At some point administrative delay amounts to a refusal to act

%. Record doesnt permit court to determine !hether that pointhas een reached, ut on remand, 2ecretary must act ore


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c. Aott 9as made rulemaking long and urdensome and erevie!aility

3. /


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iii. Ehen a claim to e


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ii. "larke has limits !hen the question is !hether a claimant falls !ithinthe =one of interests protected or regulated y the relevant statute

d. Hat. "redit Gnion Admin. v. 'irst Hat. 1ank O @rust "o. 7%::;8i. In discerning interest Bargualy to e protectedC for standing, courts

look to statutory provision at issue, then inquire !hether plaintiffsinterests affected y the agency action in question are among them

ii. Petitioner is argualy in =one if a victory !ould further its interest*. Associational or 0erivative 2tanding

a. An association has standing if 7-unt v. Eash. Apple Advertising "ommn,%:))8

i. Any memer has standingii. Interests asserted are germane to organi=ations purpose

iii. Relief requested does not require participation of individual memers . 0erivative standing criteria

i. @he plaintiff must e in+ured y the denial of a third partys rightsii. @here must e some ostacles to the third partys independent

assertion of rightsiii. @he plaintiff must e an appropriate representative of the third partys

interests5. "onstitutional Article III test

a. In+ury in 'act 7economic or other!ise8

i. $ust e particulari=ed cant e general or astract or shared y many%. B"oncrete and particulari=edC in+uries qualify as in+uries in

fact, ut&. BAstract and generali=edC in+uries do not

ii. Gnited 2tates v. Richardson 7%:)*8%. Provision of "onstitution provided that the government must

provide statements of account that descrie ho! much "IAmoney is spent for a particular purpose.

&. As a ta


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. -o!ever, e


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Bconcrete and particulari=edC, notBastract and generali=edC.

5. /stalishes the Bgeographic pro


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through the standing doctrine. 2ame effect # courtcannot revie! an agencys e


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(. 'or /


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a. @his includes the statute saying Bagency should actin the pulic interestC.

. 2eems to read the non>delegation doctrine out ofthe "onstitution.

&. "ongress cant feasily prescrie in detail the rulesgoverning every facet of federally regulated activity.

c. Rule # Fnly if there is an asence of standards for the guidance of theAdministrators action, so that it !ould e impossile to ascertain !hether the

!ill of "ongress has een oeyed, is it +ustified to hold a statuteunconstitutional due to the non>delegation doctrine.

&. Panama Refining "o. Ryan and A9A 2checter Poultry v. Gnited 2tates 7%:358a. -olds Hatl Indust. Recovery Act unconstitutional

i. HIRA authori=ed creation of private oards of producers to determinethe permissile output and pricing of every good sold in G2.

ii. Ho standards guiding the e


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c. Implicitly recogni=es that "ongress can delegate to a politically accountaleagency

*. Ehitman v. Am. @rucking Assn, Inc. 7&44%8a. ery common question in agency decision making # a sustance is kno!n in

high quantity to have terrile effects, so ho! should they regulate it. . § %4: of "lean Air Act # /PA required to set air quality standards that

Badequately protect pulic healthC. In addition, statute rules out settingstandards ased on a cost>enefit analysis ecause statute eenefit analysisof the standard 7claiming they did not engage in cost>enefit analysis8 !ithoutgiving reasons, and A@A challenged.

d. 2upreme "ourt upholds /PA opinioni. Reaffirmed the intelligile principle standard, holding that the

statutes directive to /PA to apply standards that are Brequisite to protect the pulic health !ith an adequate margin of safetyC is anintelligile principle.

ii. 9egislative eto%. @ypes of 9egislative etoes

a. @!o -ouse eto

i. If after an agency takes an action, and oth houses enact disapproval,then the action is void and cannot e reenacted.

. Fne -ouse etoi. After an agency takes an action, either house can pass a resolution of

disapproval, then the action cannot take effect.&. IH2 v. "hada # %:;3

a. Immigrants can stay, ut "ongress has W days to veto decision of agency to letimmigrant stay # "ongress vetoed here

. "ourti. 9egislative eto iolates 1icameralism and Presentment

%. Fnly !ay "ongress can ind the people is through icameralism AH0 presentment # so all legislative vetos areout

5. Alaska Airlines v. 1rock 7%:;)8a. /ntire statute is not unconstitutional, +ust the legislative veto provision.(. "ongressional Revie! Act of %::(

a. Provides generic procedures for congressional revie! of agency regulations.Gnder the Act, all federal agencies, including independent agencies, mustsumit each final and interim rule for analysis y the 6AF, and revie! y"ongress efore scheduled to take effect.

. Prohiits an agency from promulgating in sustantially the same form a rulethat has een disapproved unless specifically authori=ed y a la! enacted after the adoption of the +oint resolution.

i. @o date, "ongress has revoked +ust one rule under the "RA.iii. 0elegation of Ad+udicatory Authority

%. -istory of 0elegations of Ad+udicatory Authoritya. "ro!ell v. 1enson 7%:3&8

i. Act assigned ad+udication of !orkers compensation claims forcovered !orkers to a non>article III commission.

ii. "ommission made an a!ard to an employee, the employer sued,claiming that assignment of ad+udicatory po!er to "ommission !asunconstitutional.

iii. "ourt # Gpheld commissions authority to ad+udicate the claim.iv. 0istinction et!een Pulic Rights and Private Rights

%. Pulic Rights # controversies et!een a private party andthe government over matters such as government enefits,ta


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a. $ay e assigned to non>Article III triunals.&. Private Rights # 0isputes et!een t!o private parties in

!hich governments role is primarily ad+udicatory.a. "annot e assigned to agencies, ut plenary revie!

of agency action is sufficient +udicial involvement. . Analogi=es agency to role of a special master c. -o!ever, limits # Issues relating to +urisdiction of

agency and issues of "onstitutionality must e

ad+udicated de novo in federal courts.&. $odern 0elegation of Ad+udicatory Authority @est

a. Horthern Pipeline "onstruction "ompany v. $arathon Pipe 9ine "o. 7%:;&8i. Provision of 1ankruptcy Act that gave courts created under Article I

71ankruptcy "ourts8 +urisdiction over common>la! claims to !hichdetor !as a party.

ii. @his included interpretations of a contract.iii. "ourt 2plit # Plurality Fpinion

%. Provision of Act unconstitutional delegation of ad+udicatoryauthority under Article III ecause this !as ad+udication of private rights, and only Article III courts can ad+udicate private la! disputes.

a. Private right disputes include

i. 0ispute et!een private individualsii. 0ispute involving common la! principles

iii. 0ispute involving claim !ith common la!antecedent

. "onsequencei. All economic claims have common la! antecedents, as do

environmental claims 7nuisance8. Eould court e


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ii. 'actors%. /shifting devices

ii. /


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i. 2tatutory "ontrol%. Administrative Procedure Act 7APA8

a. Purports to estalish uniform procedures for certain formal actions7rulemaking and ad+udication8.

. 6oal is to su+ect all federal administrators to a common set of minimum procedural standards and to assure that those su+ect to regulation have anopportunity for court revie! of agency compliance.

&. 'reedom of Information Act 7'FIA8

a. Agency must provide any information in their records !ithin &4 days to arequesting memer of the pulic, unless falls !ithin an e


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suordinate. In addition, President can veto /PA decision, even if"ongress conferred decision to administrator.

c. $iddle ie! # Piercei. In some circumstances, Bfor causeC limits on Presidents removal

po!er is permissile.d. Harro! ie!

i. "ongress can restrict Presidents removal po!er.vi. Appointments "lause

%. 'ormally confers on the President e'eingold 1ill imposed restrictions on aility of candidates for

political office to collect money. . 'ederal /lections "ommission !as formed to enforce # "omposition !as si<

memers, serving staggered terms.i. & memers each chosen y the President, 2enate, and -ouse

c. "ourt?Rule # iolates Appointment "lause ecause officers, !hether principalofficers or inferior officers, can only e appointed y the President. 2enates

role is to confirm, not to appoint.d. Inferior officers can e appointed y Pres., 0ept head, or court of la!

i. -ere, four memers !ere chosen y "ongress, !hich is a violation ecause the Appointments "lause does not confer any appointment po!er on "ongress.

ii. "ivil Rights "ommission can have officers appointed y "ongress, ut that is ecause of the nature of the po!ers of the "ommission.

%. "ivil Rights "ommission simply reports to "ongress, andcannot e


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i. Administrative 9a! udges are employees, not inferior officers, ecause the agency can ignore the A9s findings and conclusions pursuant to APA § 55)78

%. Ho po!er to make final, inding decisions. Analogous to aspecial master !ho presides over a trial simply to gather arecord.

c. "onsequencei. Any change in the la! that increased the legal effect of A9 decisions

!ould make A9s inferior officers, and !ould therefore forcechanges in the manner in !hich they are selected and removed

*. 1o!sher v. 2ynar 7%:;(8a. Hi


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. $odern meaning "ongress can take action that has formal inding effect only y follo!ing procedures set forth in "onstitution for enactment of legislation # icameralism and presentment # and cant circumvent this y giving po!er toself # cant give self role in e+udge court and can e removed y A6only for cause

d. "ongress can vest miscellaneous po!ers 7e


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%. I" at !ill of A6, !ho is at !ill of President&. 0F policies in Presidents control

a. Politics keep President from e


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c. /enefit analysis

a. 2trengthened po!er of President vis a vis "ongressand "ourt, as !ell as vis a vis agencies

. Agency must consult !? F$1 efore issuing a ma+or rulei. 2end over cost>enefit analysis, proposed rule and statement of asis

and purposeii. F$1 can require 7once agency consults !ith it8

%. 0eferral of issuance of rule

a. F$1s strongest po!er . 9imited !here "ongress adds timeline to statutei. Ehere "ongressional and /


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i. 0rafters thought it !ould help FIRA focus on important issues eforeit !as too late

%. In actuality, it caused !ay too much !ork, too early in process, efore any kinks are !orked out

ii. Gnintended eneficial effects%. $emers of the pulic !ho are affected y agency action

7la!yers, pulic interest groups, etc.8 find out useful infoa. -elps them kno! !hat they need to focus on !hen

loying, etc.&. People !ho run agencies no! kno! !hats going on in the

agencyv. Presidential Fversight of Regulatory Policy

%. Reagan /F %&,&:%a. Applies only to ma+or rules issued y /*3, /*3, /

administrative law outline - uncategorized - 2_4

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