administrative law_my outline

8/7/2019 ADMINISTRATIVE LAW_My Outline

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ADMINISTRATIVE LAW

I. Introduction

A. Nature of Agencies1. Agencies = Governmental bodies other than courts of the legislature that affect the rights and duties of persons or

entities .a. agencies, administrations, bureaus, departments, etc.

2. Must be created by legislation. No such thing as a common law agency.3. Exist at all levels of government

a. We are going to be concentrating on the Federal Administrative Procedure Act.a) it is the model for all other administrative acts.

b) Federal agencies wield a lot of power.B . The Administrative Procedure Act (APA)

1. The APA is like a code of civil procedure.2. They all appear in Title 5 of the U.S. Code.3. 5 U.S.C. 551(1):

a. Defines agency as each authority of the government of the United States but excludes:a) Congressb) Courtsc) Governments of territories or possessionsd) Government of the District of Columbiae) Military Courtsf) President (established by case law: Franklin v. Mass (US 1992))

C . Agencies Simulate All Three B ranches of Government

1.

Rulemaking = simulate the legislative branch.2. Adjudication = simulate the judicial branch.a. determine rights and duties of various partiesb. i.e. are people entitled to gov t benefits, do they have to pay a gov t penalty, can a plant continue to operate

w/out a courtstack scrubber?c. ALJs = agency employees who operate adjudication.

3. Investigations and Other Executive Action = simulate the executive branch.

D. Types of agencies1. Executive agencya. part of the executive branch

So none of these are agencieswithin the meaning of the APA.


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b. Notable for having one person at the head of the agency who serves at the pleasure of the POTUS.c. i.e. EPA = headed by a single person and that person

2. Independent agencya. Multi-member agencies.b. The persons who head the agency are appointed by the president subject to Senate confirmation but they serve

rotating (staggered) terms. There isn t a switch over every time we get a new president.c. Sometimes referred to as the Fourth Branch of Government.d. i.e. Equal Employment Opportunity Commission

II. Procedural Due Process

A. Relevance to Administrative Law

1. Large volume of administrative adjudication, agencies don t always follow the same procedures that courts do.a. discovery procedures are different b. person who decided is different (no jury trials)

2. To what extent can agencies vary from court-like procedures and still comply with demands of procedural due-process?

a. i.e. it would be unacceptable to have a party come in and say he s entitled to gov tl benefits and then the agencydoesn t let the person testify and the ALJ makes decision based on personal prejudice.

B . Four Step Test to analyze procedural due process problem1. Governmental Action2. Individualization3. Protected interest 4. How much process is due?

C . Step One: Governmental Action1. Hardly ever a problem in Administrative Law

a. Because the definition of an agency is that it is an authority of the government!

D. Step Two: Individualized Action1. Action directed at a small number of people or entities for particular reasons.

a. H ypothetical #1 : Social Security Administration decides to stop paying disability benefits to Pat because themedical evidence indicates that he is now able to work.

a) Is this individualized action that might be subject to procedural due process?

i. YES! It s a determination by the social security administration that is particular to Pat.b. H ypothetical #2 : Congress decides to reduce benefits across-the-board by 20%, and Pat wants to challenge hisreduction in benefits in court on a procedural due process theory.


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i. To what extent will the additional procedure contribute to the accurate resolution of the case?c) C ost to the Government of providing additional procedure

i. To what extent would it cost the government money?

III. Administrative Adjudication

A. Basic Divide Between Formal and Informal Adjudication1. Formal adjudication requires all the procedures contained in 5 U.S.C 554, 556, and 557 .

a. Darn near a bench trial2. Informal Adjudication

a. Anytime an agency decides something and it is not rulemaking or formal adjudication = the leftover category.Everything else.

a)

So there are a whole lot of things that qualify as informal adjudications.b) Recall basic distinction between rulemaking and adjudicationb. H ypothetical #9 : Park ranger tells a camper to put out a fire because the camper doesn t have a fire permit.

There are no specific statutes or regulations that cover a park ranger s authority in such matters.a) What kind of activity is this?

i. Clearly not rulemaking! Ranger isn t purporting to speak for the entire agency and tell people that no one can build fires.

ii. It is clearly adjudication. It looks backward to past event (the building of the fire). Asseses thelegality of it (illegal w/out a fire permit) and an order (put out the fire)

3. What procedures to you get under the APA if you re involved in informal adjudication? Y ou get almost nothing , but you do get the following:

a. 5 U.S.C. 555:a) Private party can have a lawyer at own expenseb) Interested persons can appearc) A witness who is compelled to testify can review transcript d) Private party can get prompt notice of any denial along with a brief statement of grounds for denial

unless it is self-explanatory.b. 5 U.S.C. 558:

a) Sanctions can only be imposed within the jurisdiction delegated to the agency.b) So, park ranger wouldn t be able to investigate whethery you re involved in insider trading, etc.

4. Other sources of procedural fairness is informal adjudication (other than the APA)a. Due process if you have a property/liberty interest affected by agency, you could get everything on the

Goldberg test.

b. Agency hearing regulations a lot of times agencies will adopt regulations that will provide for procedures ininformal adjudication EVEN THOUGH THEY RE NOT REQUIRED TO DO IT.c. Other statutes


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h) Powers of Agency Employee presiding at formal adjudication (ALJ):i. Administer oaths

ii. Issue subpoenas make rulings on offers or proof of evidenceiii. Allow for depositions to be takeniv. Regulate course of hearingv. Hold pre-hearing and other conferences

vi. Rule on procedural mattersvii. In summary, they act like judges.

i) Any non-privileged evidence is admissible, but the ALJ can keep out irrelevant or repetitive evidencei. Different from court adjudication. In court there is more elaborate evidence rules (i.e. hearsay

rules) the only evidence rules in agency proceedings is privileges.j) No sanction without reliable, probative, and substantial evidence = must be evidentiary basis for what

the agency does.k) Any oral or documentary evidence, and cross-examination as necessaryl) Must allow for rebuttal if official notice is taken.m) Plenary intra-agency review

i. The relationship of the ALJ to the agency heads is not like that of a lower court to an appellatecourt.

ii. The ALJ only makes a recommended decision, the agency head makes the ultimate determination.iii. As a practical matter, b/c of the huge volume of things that are considered, the ALJ sdecision are

usually dispositive.n) Opportunity for parties to submit:

i. Proposed findingsii. Exceptions to ALJ s decision. These exceptions must be ruled on

o) Written statement of findings and conclusions, and reasons therefor.i. ALJ then Agency has to write something saying how they reached their decision.

p) Limitations on external ex parte contacts2. Nature of the decisionmaker

a. Use of agency employees as decision makers a) This is a big difference between judiciary and agency adjucidationb) This makes people nervous b/c the same agency that is prosecuting them is employing the decision

makerb. Combination of functions is clearly constitutional

a) The reason is because we want agencies to be experts.b) We want all agency employees to be on the same page w/r/t agency policy.

c. Administrative Law Judges (ALJs) versus Administrative Judges (Ajs)a) AJ = administrative judge who decides informal adjudication b) ALJ = deals with formal adjudication


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b. External ex parte contacts: 5 U.S.C. 557(d)a) Anyone outside the agency, even the President of the United States.

i. There is a Reagan case dealing with this. Find it.b) Applies to any interested persons.

i. Interested persons is defined very broadly. Basically, if you re talking about it with someone else,you re interested enough to become an interested person.

c) Communication only need be relevant to subject matteri. We don t distinguish between factual and legal matters like we did in internal ex-parte

communications. The relevant to the subject matter standard tries to shut off ex partecommunications to a much greater degree.

d) Covers both decision-makers and persons expected to be in decision process (i.e. law clerks to the ALJ)i. i.e. it would impermissible for someone outside the agency to lobby one of the law clerks about

how a particular formal adjudication should come out.e) 554(d) exceptions don t applyi. i.e. applications for licenses, rates of public utilities, and agency heads.

f) Variable remediesi. Remedy has to be appropriate under the circumstances and doesn t necessarily involve voiding

the whole adjudication.ii. Air Traffic Controllers and Reagan Admin case

1. What to do about the impermissible lobbying court decided not to void the whole thingb/c the Union lost anyways.

g) 557(d) also applies in formal rulemakingi. Unlike 554(d): which applies only to formal adjudication

4. Notice of the hearing and issuesa. Required by statute for formal adjudicationb. Also required by Due Process for informal adjudication

5. Discovery generally only as allowed by Agencya. One of the big differences b/w court adjudication and agency adjudication.b. Court adjudication allows for elaborate discovery i.e. depositions, interrogatories, requests for admissions, etc.c. Agency adjudication = up to the agency to provide for discovery in its rules but it doesn t have to.

6. Parties to the hearinga. Private party most affected is a party to the hearingb. Interveners = persons who are similarly situated or have a stake in the matter.

7. Agency duty to explain decisiona. w/r/t formal adjudication under 557(c): findings and conclusions, and reasons or basis therfor

b.

w/r/t informal adjudication under 555(e) brief statement unless the denial is self-explanatoryc. Common law duty even in informal adjudication


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a) So this is one of those things that just seems so fundamental, that courts are normally to uphold agencydecisions w/out it.

8. Intra-agency reviewa. THE ALJ IS ONLY MAKING A RECOMMENDED DECISION.

9. Limitation to recorda. Proved at the hearingb. Properly made the subject of official notice

IV. Rulemaking forward looking and affects an open class of persons. A. Distinction between formal and informal rulemaking

1. If there are rulemaking statutes that require an on the record hearing to make a rule, then we have formal rulemaking.

2.

However, language such as public hearing or full hearing will not suffice and only leads to informal rulemaking.B. Formal rulemaking very rare.

1. All the procedures for formal rulemaking set forth in 556-7 (this is most of the procedures for formal adjudication.)It does not follow 554 (so no internal ex parte contact rules).

a. Very significant procedural rights:a) ALJ or agency head presidesb) Witnesses under oath

c) Oral presentations with cross-examinationd) Preparation of transcript and decision on the recorde) Limits on external ex parte contacts (but not internal)

C. Informal rulemaking (aka notice-and-comment rulemaking) 5 U.S.C. 5531. Name highly suggestive: there has to be notice and an opportunity to comment 2. Notice

a. General notice in the Federal Register 553(a)a) Time, place, natureb) Legal authorityc) Terms or substance or a description of the subject and issues

b. Must be published in Federal Register (unless for some reason the parties affected by the rule receives actualnotice).

c. Actual notice standard3. Formulation of proposed rule

a.

Usually an intra-agency process4. C ommentsa. Reasonable period of time to comment


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a) It must be clear, however, that does not require a response to each and every comment.c. Has to be compiled in the Federal Register, then eventually in the CFR.

9. Limitation to record the degree to which agencies are limited to the record w/r/t rulemaking.a. Agencies are NOT limited to the record when it comes to INFORMAL rulemaking, BUT they ARE when it comes

to FORMAL rulemaking.b. Magic on-the-record language = triggers formal rulemaking (though formal rulemaking is rare nowadays.)c. Agencies are careful here though b/c if they come forward w/ a lot of new data, they may get challenged by

parties who claim that the comment period was not a meaningful comment period.d. However, there is no TIGHT restriction to the record that we see in FORMAL rulemaking/adjudication.

D. H ybrid rulemaking does not appear in the APA. 1. Hybrid Rulemaking = informal rulemaking with additional procedures that are imposed on the agency either by

virtue of its own regulations or imposed by the agency s enabling statutes.a. The most common additional procedure is probably oral testimony. Sometimes this can involve cross-examination.

2. Sourcesa. Enabling statutesb. Agency regulationsc. Agency decision in that cased. NOT T H E C OURTS!

3. Can Courts impose additional procedures on the agencies w/r/t rulemaking? NO!a. Vermont Y ankee Nuclear v. NRD C (U.S. Sup. Ct. 1978)

a) Battle over how to store nuclear waste. NRDC complained that agency procedures were insufficient b/cthey did not allow for cross-examination of key witnesses. It was informal rulemaking however(requiring only notice and opportunity for comment), and the agency had clearly complied with thenotice and comment rules. Nonetheless, the DC circuit had held that the agency decision had ventilatedthe issues.

b) Holding = DC circuit was wrong. Courts may not impose additional procedures unless constitutionrequires or extremely rare circumstances. It is up to Congress or the agency itself to impose additionalprocedures, not the Courts.

i. The APA is statutory minimum1. Up to agencies or Congress to go higher

ii. Constitution1. usually not relevant because generalized action2. perhaps a narrow ratemaking

iii.

Extremely rare1. Perhaps if the agency unjustified departure from past practice


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b) This is not unconstitutional b/c the holding in Chada only applied to situations where one chamber of Congress was acting on its own w/out the president. This CAAA of 1996 requires bicameralism andpresentment to the president.

H. Bias and Ex Parte Contacts in Rulemaking1. B ias standard much, much harder to show in rulemaking successfully than it is in adjudication.

a. In order to successfully show bias in rulemaking context, you have to show that the agency had an unalterablyclosed mind .

b. i.e. Agency is not willing to accept and listen to other parties at all.2. Ex parte contacts

a. Very little regulation of ex parte contacts in informal rulemakingb. 557(d) applies in formal rulemaking this section says that external ex-parte contacts are prohibited. This is

because formal rulemaking is the kind that is supposed to be truly limited to the record. Thus the idea of external ex-parte communications does not sit well with this goal.

I. Agency s Discretion to Choose Between Rulemaking and Adjudication I NEED TO EXPAND ON THIS WITH NOTES AND CASESFROM BOOK AND E&E.

1. Are there circumstances where an agency just doesn t have a choice? That is to say if they re going to make a policy,they have to do it through rulemaking rather than adjudication?

2. The Supreme Court has said that agencies have very broad, nearly unlimited discretion to choose between the two.

3. There may be circumstances where the parties have settled expectations, and upsetting those settled expectationsmight be arbitrary, and arbitrary and capricious decisions by the agency can be set aside.

V. Agency Information Gathering

A. Raises difficult policy issues b/c - clash between desire for privacy and accomplishments of regulatory objectives.

B . Agencies are given three important devices for gathering information:1. Searches or inspections2. Record-keeping or reporting requirements3. Subpoenas

a. Testifyingb. For production of documents or tangible things

C . Searches or Inspections

1.

Agency must have statutory authority to engage in inspections or searcheda. Extremely common for Congress to grant an agency this power2. Must comply with the Fourth Amendment


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a. Fourth Amendment limits agency officialsb. Warrant Requirement

a) Normally a warrant is required; must be issued by a neutral magistrate.b) Warrantless searches are allowed in the agency context if certain conditions are met. Three step test:

i. It has to be a pervasively regulated industry;1. Alcohol, Tobacco, Firearms, others with long history2. Others are more recently regulated, such as auto junkyards (single industry regulations).

ii. Also has to be a statute providing parties notice that a search may occuriii. There was to be a true administrative purpose for the search.

1. However, mixed motive approved.c. Warrantless searches do not require individualized suspicion.

a) Agencies can search on a neutral scheme. Don t need probably cause or anything of the like.d. Remedy if agency violates the Fourth Amendment = exclusion of evidence

a) Normally the rule in criminal casesi. But subject to good faith limitation.

ii. Generally no exclusion in administrative matters.e. Plain view exceptionf. H ypothetical #16 : Bob owns a gun repair business. A federal statute allows ATF agents to make unannounced

inspections at random to ensure that gun dealers and repair shops are keeping proper records of theirtransactions. The name of Bob s store is selected at random; there is no particular reason to believe that Bob is

violating the law. While in the store inspecting the records, the ATF agents see several illegal assault weaponsleaning in the corner. The assault weapons are seized, and Bob is prosecuted. He attempts to suppress the gunsas the fruit of an illegal search.

a) Was the warrantless search permissible? It looks like it is.b) Pervasively regulated industry? Yes. Gun industry.c) Statute giving notice that the search might occur? Yes.d) Administrative purpose? Yes, checking for regulatory violations.

D. Record-keeping and Reporting i.e. tax returns.1. Agency has to have statutory authority2. Bare showing of relevance

a. Official curiosity can suffice3. Not outrageously burdensome

E. Subpoenas - two types of subpoenas

1.

Testifying subpoenasa. Generally must object to specific questions2. Subpoenas DucesTecum


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a. These subpoenas command witnesses to bring records and tangible things.b. Requirements for a subpoena ducestecum:

a) Statutory authorizationb) Agency or party to agency proceedings

i. Bare showing of relevanceii. Reasonable specificity

iii. Not outrageously burdensome

F. Privileges limitations1. Ordinary evidentiary privileges such as attorney-client apply.2. Fifth Amendment privilege against self-incrimination people think that the 5 th Amendment would prevent the

witness from being forced to turn over a document that would expose you to criminal liability. However, that is not the law.

a. The 5 th Amendment privilege does not apply simply because documents incriminate.b. In order for the privelege to apply, the act of producing documents must incriminate (the act of turning it over

must be testimonial). This is called the act of production immunity/privilege.a) It could help to authenticate the documents.b) It could mean that the documents were in the witness s possession,c) It could show that they actually exist.d) Testimonial component must be more than a foregone conclusion."

c. Other reasons Fifth Amendment is a slight limitationa) Corporations have no privilege.b) Agencies can draw negative inferences from invocation of Fifth Amendment (the reason you re invoking

5 th Amend is that you re really guilty).c) If there is no risk of prosecution, the prosecuting authorities may be willing to give immunity.

i. Use and derivative use from testimonial component only.ii. The negative criminal consequences can be avoided and witness will have to turn over those

documents.d) Required Records Doctrine

i. The act or production privilege is a nearly absolute privilege which can only be avoided if therecan be no way to comply and avoid self-incrimination.

ii. Only if no way to comply and avoid incrimination

VI. External C ontrols on AgenciesA. Generally

1.

This is a practically important subject b/c the political process does a fair amount to actually control agencies.Agencies have been the whipping boy as what has been seen as interfering w/people s lives so political forces havelimited agencies as to what they can and can t do.


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e. Status as independent agencyf. Consent of party

2. Bottom line = after these two cases, it s going to be very hard to make the argument that anagency is overstepping its constitutional bounds by acting in a quasi-judicial fashion.

b. Jury Trial Issuea) The Supreme Court said in Atlas Roofing that there is no constitutional right to a jury trial right in public

rights mattersi. Atlas Roofing v. OSHRC (U.S. 1977)

c. H ypothetical #17: The EPA discovers that DumpCo is dumping TCE into a town s aquifer. The EPA brings anadministrative enforcement action before an EPA Administrative Law Judge seeking to impose a $50,000.00penalty. DumpCo objects because the Administrative Law Judge is not an Article III judge, and because there willbe no jury trial.

d. Criminal Mattersa) Article III court must impose any criminal penalties,b) But, Congress can by statute make a violation of a regulation a crime.

C. Estoppel1. Promissory or Equitable Estoppel

a. Apparently not ever available against the federal government, although Supreme Court has never completelyruled it out.

2. Res judicata and collateral estoppela. Allowed on much same basis as court adjudicationb. Not allowed if a statute precludes it, as with Title VII.

D. Freedom of Information Act 1. Three tiers

a. Records that must be published in the Federal Registry automaticallyb. Records that must be automatically made availablec. Records available upon demand

2. Records that must be publisheda. 552(a)(1)(d)

a) substantive rules of general applicability adopted as authorized by law, and statements of general policyor interpretations of general applicability

3. Records that must be automatically made availablea. 552(a)(2)

a) Final options in the adjudication of casesb) Statements of policy not published in the Federal Registerc) Staff manuals

4. Records that must be produced on demand


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a. Agency records must be produced in response to any request which reasonably describes the records and ismade in accordance with published rules as to time, place, fees, etc. 552(a)(3)

b. FOIA exemptions:a) Exemption 1: national defense or foreign policyb) Exemption 2: internal personnel rules and practicesc) Exemption 3: specifically exempted by some other statuted) Exemption 4: trade secrets and commercial or financial informatione) Exemption 5: Inter-agency or intra-agency memos or letters not available by law

i. Traditional privileges such as attorney client ii. NLRB v. Sears (U.S. 1975): pre-decisional v. post decisional

1. Rationale: free exchange of ideas within agencyiii. However, Exemption 5 does not cover documents generated outside the agency and submitted to

the agency. So, in Department of the Interior v, Klamath Water Users (U.S. 2001), the SupremeCourt held that documents prepared by an Indian tribe and submitted to the agency relating to awater dispute were not covered because they were neither inter nor intra agency documents.

f) Exemption 6: personnel, medical files of which release would be clearly unwarranted invasion of personal privacy (reaction to avoid identifiers that would allow member of the general public to identifyperson)

g) Exemption 7: law enforcement records that would have negative effects such as revealing a confidentialinformant or deprive the accused of a fair trial

h) Exemption 8: financial institution regulation documentsi) Exemption 9: geological information relating to wells5. Reverse FOIA

a. generally not availableb. but, implied right found in Chrysler v. Brown (U.S. 1979)

6. Government in the Sunshine Act a. Theoretically requires agency open meetingsb. But huge exception for open meetings that would be likely to significantly frustrate the implementation of

proposed agency action.

E. Executive Controls1. Appointments

a. Three levels: officer, interior officer, and employeea) Officers must be appointed by the president and are subject to Senate confirmation.

i. e.g., Cabinet level, agency heads1. Buckley v. Valeo (U.S. 1976): FEC heads are officers2. Morrison v. Olson (U.S. 1988): special prosecutors are inferior officers

b) Inferior officers


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i. Can be vested in the President alone, in the Courts of Law, or in the Heads of Departments1. e.g., subcabinet level (undersecretaries)

2. Removala. Old distinction

a) Myers v. U.S. (U.S. 1926): Officers exercising purely executive functions must be removable at will of president

b) Humphrey s Executor v. U.S. (U.S. 1935): Persons exercising quasi-judicial and quasi-legislative authoritycan be given tenure protection

c) This distinction is what makes independent agencies possibleb. New test under Morrison v. Olson

a) Do the removal restrictions impede the President s ability to perform his constitutional dutyF. Legislative Controls

1. Legislative held veto unconstitutional in INS v. Chadha2. But report and wait constitutional

a. Contract with America Advancement Act of 19963. Informal controls such as budget hearings

G. Venue: Generally determined by enabling act 1. SEC: Federal District Court 2. FERC: Regional Circuits3. FCC: D.C. Circuit

H. Form of Challenge1. Old writ distinctions abolished2. Liberally allowed under 5 U.S.C. 7033. Injunction or declaratory relief most common

VII. Preconditions of Judicial Review these things ned to exist before the party can even get into court to challenge the action. A. Standing

1. Injury in fact a. Generally means an injury significantly that above that suffered by the general public.b. Lujan v. Defenders of Wildlife: Plaintiffs had vague plans to visit an area where wildlife affected. This was held

to be insufficient.injury.2. Zone of interest that is supposed to be protected by the agency s statute.

a. Air Courier Conf. Of Am. V. American Postal Workers Union (U.S. 1991): Postal employees not within zone onsuit to prevent private couriers from delivering overnight mail; postal job loss not a zone injury.

3. Fairly traceable the remedy that you want has to have a reasonable chance of addressing the remedy that you seek.4. Taxpayer Standing extremely difficult to show in Federal court, although a lot of state courts allow it.5. Citizen-suit standing statutes provide for these. These were an invention largely of environmental statutes.

a. Friends of the Earth v. Laidlaw Envt l Services (U.S. 2000):


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VIII. Judicial Review

A. Four Questions1. Law parties might be able to challenge the agency s legal interpretation of the law.2. Historical Fact Page parties might be able to challenge things like which witnesses they believed, which facts they

accepted, etc.3. Policy4. Discretion i.e. whether or not to revoke license or suspend it. Whether to impose $5000 or $10000 fine.

B. Law1. Can arise in any kind of agency determination investigation, rulemaking, adjudication, etc.2. Mixed questions of law and fact what are the parties actually fighting about? If the parties agree on the facts but

disagree on a legal issue, then it s a legal issue. If vise versa it s a factual challenge.3. Once you determine it is a legal issue, use the Chevron analysis:4. C hevron v. NRD C (U.S. 1984)

a. Three-step test:a) Is there a clear answer provided by law ? If yes, agency has to follow it.b) If no clear answer, then ask was the agency delegated the authority to resolve ?

i. The answer will be yes if it is an area where the agency has expertise.ii. The answer will be no if it is something like FOIA, etc.

c) Agency s resolution reasonable?

i.

If this an area where the agency isn t expertise baserd, then it is a de novo review.b. Split model agencies enforcement arm is separate from the review arm. The enforcement arm gets theChevron deference.

a) Martin v. OS H RC (1991): enforcement end gets the deference, at least where the issue is ambiguousregulation

c. Question becomes w/r/t Chevron deference is what is meant by reasonable? The SCOTUS has set out certainfactors that bear on these questions and as a result Chevron deference has become even more flexible. Thefollowing can all affect the amount of deference; informal agency pronouncements may not be within the scopeof Chevron.

a) Formality some agency person jots out a letter, sends it out, etc. Or more similar to Chevron wherethere was notice, comment, etc.

b) Durationc) Consistencyd) C hristensen v. H arris C ounty (U.S. 2000)(plurality opn.)

i. Interpretations such as those in opinion letters like interpretations contained in policystatements, agency manuals, and enforcement guidelines, all of which lack the force of law donot warrant Chevron-style deference.

ii. Is this in the book? Need to find it and brief it.


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d. Rationale and contrast with trial courtsC. Historical Fact

1. Who, what, when, why, how, etc.a. These usually arise in the context of adjudications.

2. Mixed questions of law and fact

3. Usually arise in adjudicationsa. If informal adjudication, arbitrary and capricious test applies.b. If formal adjudication, substantial evidence test applies.

4. Arbitrary and capricious in informal adjudicationa. Large amounts of deference to agency agency s decision will be upheld as long as they re reasonable.b. Can rely on matters outside the record if reliable.c. C itizens to Preserve Overton Park v. Volpe (U.S. 1971) court articulates a two-step test for this type of

review:a) The agency s determination has to be within the zone of permissible decisions

i. Has to be the kind of thing the agency has authority to review.b) Has to be a not irrational choice made within the zone

5. Substantial evidencea. Strong deference to agency

a) This is like the standard federal court standard for directed verdict b) Whole record approach

b.

Must be limited to record and matters judicially notedc. Agency gets the deference, not the ALJa) Universal Camera v. NLRB (U.S. 1951)

D. Policy1. Usually arises in rulemaking2. Legislative facts3. Hard look at facts and policy implications

a. Quasi-procedural: Were alternatives explored?b. Quasi-substantive: Is it based on unreasonable policy inferences

E. Discretion1. Not obviously factual or legal, but calling for judgment 2. Common circumstances

a. admission of evidenceb. penalty imposed

3. Arbitrary and capricious, abuse of discretion standarda. wide latitudeb. in case of penalty, must be shocking or disproportionate

F. Damage Actions as a method of judicial review

h l l l f


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1. Sometimes the only practical route to relief 2. 1983 actions

a. color of state lawb. persons

a) doesn t include states themselves or their instrumentalities

c. no vicarious liabilitya) policy requirement

d. immunitiesa) qualified

4. ii. absolute3. Bivens actions

a. federal officials individuallyb. lack of special factors counseling hesitationc. immunities

4. Federal Tort Claims Actions

IX. Exam ApproachA. Look for key wordsB. Classify the agency action: adjudication, rulemaking, or information gatheringC. Identify the statutory limitations on agency s actions (principally APA)

D.

Identify constitutional limitations on agency s actions (e.g., procedural due process)E. Identify any important pre-conditions of judicial review (e.g., exhaustion, standing)F. Classify the nature of the challenge: legal, factual, policy, or discretionG. Apply the appropriate standard of review (e.g., de novo, substantial evidence)

administrative law_my outline

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