CHAPTER 1: ADMINISTRATIVE LAW PRACTICE INTRODUCTION ALWAYS START WITH THE STATUTE!

The agency must always have a statutory grant of power to do what it is doing. ALWAYS ASK if the agency is within the power granted to them. Start your discussion always with The statute says, because that statutory grant will mark the limit of the agencys power. Must also have explicit power to promulgate regulations. Typical outcome of administrative agency lawsuits: Plaintiffs often losethe court usually defers to the agency or county. What do agencies do? 1. regulating private conduct or the conduct of other government bodies 2. administering entitlements (here, the volume of cases would be so huge that the appellate process must be streamlined and very routine) 3. everything else (e.g. INS, IRS) Types of agency action: Rulemaking (legislative function) Adjudication (judicial function) Investigation (executive function) o Types of power to obtain information: Subpoena Compel filing of reports by regulated bodies Inspection Agencies: 551(1) definition Departments (Treasury, HUD, Interior, Labor) Independent Agencies (FCC, FTC, NLRB, SEC) Independent Agencies: These agencies have boards rather than sole heads, so they wont change that much with presidential whims. The board members have fixed terms, and the president cant remove them except for cause. Should there be this type of limit on presidential power? Andersens Rule of Politics: nothing is ever really finished. The losing party can always seek a new forum tomorrow (go to Congress, appeal, etc.)

APA BASICS (Administrative Procedure Act of 1946) Definition of RULE: 551(4) ignore the particular applicability portion (Andersen thinks its misleading), and just focus on the generally applicable language. General applicability and future effect. Definition of ORDER: 551(6) other than rulemakingincludes licensing ( 551(a)) and permits ( 551(8)). Definition of ADJUDICATION 551(7) Definition of RULEMAKING 551(4)&(5) RULEMAKING - 553 Informal Rulemaking: Three-step process 1. Agency must publish a notice of the proposed rule in the FR. 553(b) a. Exceptions: interpretive rules, general statements of policy, or rules of agency organization, procedure, and practice. 553(A) b. Also can bypass notice for good cause. 553(B) 2. Agency must give interested persons an opportunity to participate by submitting written data or maybe oral presentations at a hearing (at agencys discretion). 553(c) 3. Agency must incorporate in the rules a concise general statement of their basis and purpose (which appears in the FR along with the rule). 553(c) Formal Rulemaking: In formal rulemaking, the agency replaces steps 2 & 3 above with procedures in 556-557. 553(c) TEST: Formal RM required when agencys mandate statute requires the rules to be made on the record after an opportunity for agency hearing. Hybrid Rulemaking: Some agencies are required to follow more procedures that are added to the basic floor of informal RM. E.g. FTC must include an informal hearing with oral presentations, and can include witnesses and cross-examination. But doesnt rise to level of formal RM. ADJUDICATION - 554 554(a) TEST: Formal adjudication required when the agencys statute requires determination on the record after a hearing. * If so, use 556-57. Formal Adjudication: 554 requires the use of procedures typically used at trial. Notice. 554(b) Opportunity to reach a settlement. 554(c)(1) Must be conducted in accordance with 556 and 557. 556 Addresses the hearing procedures; authorizes use of ALJs ( 556(b) (c)) and places the B/P on the agency. Any decision must be based on the evidence in the record. 556(d) 557 Addresses the appeal procedures. Informal Adjudication:

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If agency doesnt have to conduct a hearing on the record as mandated by their statute, then the APA does not prescribe any procedures for adjudication. Exception: Agency must follow certain hearing procedures if statute requires some hearing to be held, though not formal adjudication; or if the due process clause applies. STEP #1: Ask what type of action 552 Formal rulemaking; publication in FR, FOIA requirements. 553 Informal rulemaking 554 Adjudications o Licensing o Revocation o Assessing penalties 556 Formal hearings for formal rulemaking/adjudication. Very court-like, burdens of proof, evidence, crossexaminations. Subsection (c) talks about transcripts & exhibits, which create the record for decision. 557 Decision-making. Who is qualified to make the decision? Persons presiding over the 556 hearings are ALJs (who have some measure of independence b/c pay and tenure is set by another agency). o WAPA: office of administrative hearings is totally separate. o Appeal from the ALJ goes to the agency itself. Judicial Review 701 JR may be precluded by . 702 Limits s; must have standing. 704 final actions only are reviewable. 706 scope of review (lists several standards of review) Goals for APA procedures: o Accuracy in fact-finding o Efficiency acts as a constraint. o Acceptability. ETHICS Article: Bruce Fein (p. 38) New Reagan administration philosophical dispute with agency. Used New Deal attorneys as an example should always support the President and try to help his agenda, because hes the client. Article: Douglas Letter Situations where the government attorney had different obligations than the private attorneys (had to be more ethical). o DOJ attorneys: goal is to do justice. Can take a broader position because they dont represent any particular agency. Considerations: Agency is client? President is client? Higher duty to serve justice?

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Pay attention to the Rules of Professional Conduct. In an extreme case, if the RPC does not agree with what your client is asking you to do, your only option might be to quit.

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RULEMAKING INITIATING RULEMAKING Recall that hideous 1980s movie: The Rulemakers. Initiating the RM process: What are you asking for? Repeal Amendment To promulgate a new rule? Where do the ideas come from? Bottom-up (lower level workers in agency make suggestion to supervisor) Top-down (political pressure from agency head, Congress, President) Outside the agency. o Problem: youre a member of the publicwho do you go see to get your issue heard? o Note the complexity of the organizational chart of the EPA, p. 53. o Try to avoid both the very top and very bottom officestry to strategically target the person who can make or propose the change you seek. How do you approach this person? Friendly relationships are best; dont come in screaming about what you want. Protect your reputation and your word. Tailor your argument o Let the person know why your proposal would benefit his agency. o If youre meeting with someone who has a science background, consider bringing someone with similar training from your clients business so they can talk on the same level. o Connect the agencys mission with what you want. PETITIONS FOR RULEMAKING Agency declines to make your rule petition for RM 553(e) each agency shall give a person the right to petition for review. 555(e) the agency must deny your petition in writing, setting forth their reasons, and do so promptly. Begin informally if you canstarting this petition process pits you against the agency as an adversary. Filing a petition for RM is a way to force the agency to take some action. AGENCY INACTION: 551(13) defines agency action to include failure to act 706(1) reviewing courts may compel agency action unlawfully withheld or unreasonably delayed. TRAC v. FCC (p. 65) Is the agencys delay so egregious as to warrant mandamus? Factors to consider: 1. time agencies take must be governed by a rule of reason. 2. Congress timetable or statutory scheme can supply the content for this rule of reason 3. delays that might be reasonable in economic issues may be unreasonable when health or welfare is at issue 4. court should consider whether agency has other tasks that take higher priority 5. take into account the extent and nature of the interests harmed by the delay

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6. court need not find any impropriety lurking behind the agencys lassitude to hold that it is being
unreasonable in its delay.

rule of reason in factor 1 means just to contrast it with the per se approachtake in all the circumstances. Judge said there that 4 years is probably unreasonable, but will also look to whether Congress set any deadlines. Factor 4 is always part of the agencys argumentthat they have other priorities. o Not the role of the judge to set prioritiesthe SCOPE OF REVIEW is quite narrow, limited to what was arbitrary. REMEDY: Court retained jurisdiction. This is like a mild sanction that means the court will monitor compliance. Some courts think that even agency SHALL do this in 60 days rules are non-binding, and can be modified due to agency priorities.

DENIAL OF PETITION Arkansas v. ICC (p. 70) Agency gave a reasonwants to proceed in a case-by-case manner and doesnt want to write a broad rule yet. Judge found this was not unreasonable, and not arbitrary or capricious. Passed the 706 test. Judge described the test again as narrow; court must accept what the agency does unless it truly is egregious. Mass v. EPA Asking to regulate greenhouse gases - 15 mos later asked for comments then denied the Rulemaking Order - narrow review by courts - deference to agency to marshall resources - once EPA responded their actions must conform with authorizing statutes - offered no explanation for refusal - MUST ground reasons for action or inaction Affirmative decrees are harder to enforce than a negative injunction. Courts are reluctant to force action. BASIC PROCEDURE (p. 91 111) U.S. v. Allegheny-Ludlum Steel Corp. (p. 92) ICC set rates for railroad cars using informal rulemaking. Corp. sought JR. How do we know they were rulemaking? 551, the definitions: note the emphasis on future rates in the statute. Since they were rulemaking, they had to choose whether to use informal or formal procedures. APA 553 says that if the statute that gives the agency its power requires it, then you use formal. Wed have to look at the ICC act to see if that statute requires agency rules to be made on the record after a hearing. In this case, there was no requirement that the rules be made on the record, (only that it had to be after hearing) so 556 /557 did not apply and they properly used the informal process. Not equivalent to on the record - need to be explicit! APA never requires formal rulemakingit only gives guidance for when the authorizing statute requires rules to be made on the record after a hearing. CHOICE is left to Congress. The agency may also make their own rules, to add stricter procedures if they choose. U.S. v. Florida East Coast Railroad Co. (p. 92) As noted in Allegheny, the ICC language that after hearing does not trigger the formal rulemaking procedures. The district court here thought that there were more factors in the statute that indicated formal rulemaking. Court was trying to send Congress the message that they have to use the magic language in order

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to require formal hearings. Even if there was a formal hearing required, it did not mean you get to have crossexamination or the right to present oral arguments (the exception in 557). Why the hostility towards formal rulemaking? RM seems to work best as a legislative process. Injecting too much legal complication makes the process less effective. If Congress wants formal RM, they have to use the explicit language in the APA, to make clear their intent to have a rule made on the record.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (p. 94) Held: absent constitutional constraints or extremely compelling circumstances, agencies should be free to fashion their own rules of procedure and pursue methods of inquiry tailored to their tasks. List of considerations given to support the courts holding: 1. importance of predictability of JR 2. too much second-guessing 3. misapplication of the standard of review Court of Appeals wanted to remand the case back to the agency due to inadequate support in the record. Supreme Court said that the court may not add additional procedures to what the statute requires. Just because the Court of Appeals wants a hearing on the record doesnt mean the agency has to do that if their enabling statute doesnt require it. = 553 is a ceiling, a floor Criticisms of this holding: Nuclear waste is more important than setting railroad rates. Courts should be allowed to require stronger protections in the public interest. Yes, but isnt that Congress role? INFORMAL RULEMAKING REQUIREMENT - NOTICE 553(b) actual or constructive Chocolate Manuf Assc v. Block [flavored milk] Final rule dramatically altered - agency cant do that and establish a rule contrary to the original proposal simply because receives suggestion to alter during comment period - TEST: (1) notice is adequate if changes in original plan are in character with orignial scheme AND (2) final rule is a logical outgrowth of N&C already given NOTICE AND COMMENT EXCEPTIONS 553: rules of agency organization, procedure, policy/ interpretive rules/ general policy statements/ other rules that are impracticable, contrary to public interest, unnecessary Air Transport Assc v. Dept of Transportation Faa engaged in N&C before promulgating body of regulation governing the adjudication of admin civil penalties penalty rules arent exempt because they substantially effect the defendants rights - time does not constitute good cause - essential to administrative governance: congress judgment of informed admin decision after opportunity to be heard by interested persons are not exempt b/c merely procedural American Hospital Assn v. Bowen AHA brought v. HHS for circumventing the N&C under 553 - Gradual shift of focus from asking whether a given procedures as a substantial impact on parties to inquiring more broadly whether the agency action also encodes a substantial value judgment or puts a stamp of approval or disapproval on a given type of behavior - not solely substantive - procedural rules are exempt under 553 (here the manual did not impose any new burden or new standard, mere inconvenience was not enough) - exemptions dont apply to action that substantially alters rights or interests of regulated parties

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Jem Broadcasting v. FCC Hard look issue - HELD: critical feature of procedural exemption is that it covers agency actions that do not alter rights or interest of parties - procedural impact on degree - substantial effect sufficiently grave so N&C are needed to safeguard policies underlying APA - hard look doesn't change substantive standards EX PARTE CONTACTS Comment Process (APA 553(c)) Look to the APA, and the agencys own rules to see when and how comments are taken. Check to see if oral presentations are allowed, or what written format is preferred (e.g. email, other types of presentations). 553 gives agency a fair amount of discretion to allow oral presentations or public meetings. Agency CAN do public meeting if it thinks it might be useful (clients job is to persuade agency to have one or not). These are the official comments on the rules, submitted during the official comment period. The difficult legal issues arise out of unofficial comments that are made outside of this process. 551(15) Definition of ex parte communication; can ask about status reports ex parte. 557(b) prohibits ex parte communications in formal rulemaking procedures in certain circumstances. (No interested person from the outside can make contacts with the ALJ). 554(d) has some other limitations on communications for adjudications. Employee who presides at reception of evidence (usually the ALJ) may not consult a person or a party (probably a person in the agency, not outside) about a fact in issue. The prosecutors and investigators are forbidden from consulting with the ALJ, nor may they talk to the head of the agency on review. There is nothing in the APA on ex parte contacts for informal rulemakinglook to the agencys own statute. HBO v. FCC (p. 113) Court orders that any ex parte contacts that impacted the decision should be made public, and that any written documents should be put in some sort of file. Court thinks there is an aspect of notice and an opportunity to respond (the adversarial process) that is being offended by this process. Was court also concerned about its ability to review and compare the record with the rule it supportsbut cant the court review the body of material and say that the rule isnt supported? What about the appearance of unfairness that the court was concerned with? This case is of questionable status. It was not extended in Sierra Club, and most other courts think it is unduly restrictive on the free flow of information needed in this process. Once a notice of proposed rulemaking is issued, any agency employee who may reasonably be expected to be involved in the decision process refuse to disclose matters relating to disposition of a rulemaking proceeding See also Sangamon Valley TV Corp. v. U.S., which raises DP issues when the RM involves conflicting claims to a valuable privilege, like broadcast rights in a proceeding that has more of an adjudicative feel. Sierra Club v. Costle (p. 116) The Clean Air Act required a rulemaking docket for each proposed rule, which would serve as the record for JR. Comments during the comment period would obviously go in, but what about the post-comment period? Agency may always extend the comment period if requested. This case casts doubt on the validity of HBO. But this case if pretty limited to the extra requirements in the Clean Air Act, which made extra requirements for the agency to follow. If the statute doesnt expressly require everything to go in the record, theres not much the court will do with ex parte communications. doubts validity of HBO if statute not explicit, then not much ct can do

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D.C. Federation (p. 124) Congressmen threaten agency to give them a bridge. Court held that the extraneous threat should not have been considered in their decision. NEW FORMS OF RULEMAKING Hybrid Rulemaking Procedures Rare for an agency to only be bound to the APA most administrations impose additional requirements: o National Environmental Policy Act - Environmental Impact Statements - procedural, substantive o Regulatory Flexibility Act - singificant Economic Impact on subst. # of small entities o Paperwork Reduction Act - OBM o Executive Order 12866 - CBA principal method; annual processing; periodic review o Unfunded Mandates Reform Act of 1995 Negotiated Rulemaking Processes 3 articles listing pros and cons. Thought generally to be a good thing, although Funk and Andersen disagree. (see p. 146) In negotiated RM, an agency and other parties with a significant stake in the rule participate in a face-to-face discussion to build consensus. Once consensus is reached, the notice is published in the FR and it proceeds in the conventional notice and comment. JUDICIAL REVIEW STATUTES 706 SCOPE OF REVIEW Statutory Interpretation Chevron v. NRDC (p. 148) (1984) Very important case most cited case in Administrative Law. Courts will defer to any reasonably permissible agency construction of a statute. Here, EPAs interpretation of source included bubble sources, where there are 2 or more facilities on one plant, and they can be included together as one source. The politics behind this change is not supposed to be included in the analysis (p. 150).

1.

2.

Chevron 2-step: Does the statute clearly require or forbid the agencys interpretation? Has it spoken directly to the precise issue in the case? If so, then the court examines whether the agencys interpretation squares with the statute. (little deference here) Plain Meaning: language of statute Second Approach: law as a whole, Legislative History If the statute does not clearly answer the question (is ambiguous), then the court will determine whether the agencys interpretation is reasonable or permissible. (lots of deference here) NOTES:

o Chevron lowers the intensity of judicial review, court may not substitute its own judgment for that of the
agency must be deferential.

o Note the relationship hereas intensity of JR goes up, the freedom of the agency goes down. o Why in step two should a court defer to an agencys legal interpretation that they think is incorrect? 706
says that courts shall decide all questions of relevant law. How do you justify that inconsistency? Courts ought to respect the delegation of legislative authority. o But how clear does that conferring of power have to be? (Delegation can be implicit or explicit). Implicit delegation might take the form of an ambiguity.

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o Chevron applies to an agencys interpretation of their own rules. o SUPPORTERS ARGUE: rule applies clear statute OR statutory language is unclear AND Rule is
reasonable

o OPPONENT ARGUES: statutory language is crystal clear OR Congl intent clear from LH AND rule
contrary OR rule not reasonable construction SPECTRUM:

Constl Violation 706(2)(B) de novo

Stat. Compliance 706(2)(C) Chevron

Procedural Violation 706(2)(D) de novo

Findings & F&C Conclusions 706(2)(D) informal RM substantial 706(2)(A) A&C evidence

Who is reviewing whom? ALJ makes a decision appealed to agency appealed to Ct. of Appeals appealed to Supreme Court. o Might be a different scope of review at each level. Main concern is the middle level, at the nexus between the agency and the courts (because the agency is generous to the ALJ, and the Supreme Court is generous to the Court of Appeals, so most issues arise in the middle level). Rules of thumb o Plaintiffs usually lose so the place to win your case is at the lowest level. o Agency decisions about facts (technical situations) are the least likely candidates for judicial review. o Agency decisions about law or policy are sometimes reversed by courts. (It is emphatically the province of the courts to say what the law is Marbury v. Madison) JUDICIAL REVIEW SUBSTANCE Effects of Chevron Appears to have increased judicial deference to the agencies. How does a court decide whether the regulation and the statute are compatible? Scope of review: look to the statute for clues: o Maybe it refers to 706(2)(A) (D) in the APA (some are inapplicable) Arbitrary and capricious (p. 178 State Farm rational connection between the facts found and the choice made a middle test) seems to fit; or o The substantial evidence test. (Consolidated Edison (p. 163) court will uphold the rule if it finds the agencys decision to be reasonable, or the record contains such evidence as a reasonable mind might accept as adequate to support a conclusion.) Does not require that the court agree with the agencys choice just to ask whether the conclusion is one a reasoning mind could arrive at by looking at the record. Record: (p. 169) defines what should be included in the recordincludes anything else the Commission considers relevant. lets the agency have broad discretion to include things in the record. Are the arbitrary & capricious and substantial evidence tests any different? They used to beSE test was more intense. A&C was fairly unintensive. But in 1970s A&C starts to have a stricter meaning. Overton Park (p. 163) thorough probing, in-depth reviewdoesnt sound like a low intensity test.

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Now they are in roughly the same range of intensity. But in the problem materials, Congress has determined that the agency has to meet both standards. (see p. 169). Andersen thinks that the SE test doesnt make sense where theres an open-ended record, like in rulemaking. SE test seems to imply a more intense standard. Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins. Co. (p. 176) (p. 178) definition of A&C: Rational connection between the facts found and the decision made? Based on relevant factors? Clear error of judgment? Agency relied on factors Congress didnt want considered? Agency failed to consider something Congress thought was important? Failed to provide an explanation? o Does the explanation require us to yield to the agencys expertise? Held: if the agency fails to take something very important into account, that wont suffice if the agency doesnt provide a good explanation. Chenery (p. 167) Court will remand the rule back to the agency to rethink it if it finds its against Chevron. This is the standard remedy.

JUDICIAL REVIEW TACTICS; ETHICS State Farm is the last articulation of what A&C means. Look also to 706 to see what standards are involved. The APA doesnt require the substantial evidence test unless youre doing formal rulemaking ( 556/557). Issue in State Farm: Does the standard of review change based on the agencys actions? What if the agency refuses to write a rule, or if they rescind the rule? Is this the same as where the agency writes a rule that someone challenges? Rescission of rules is treated just like a challenge to a rule itself. The agencys refusal gets more deference. 1. 2. 3. rely on factors that congress intended to consider? fail to consider impact aspect of problem? offer an explanation for its decision that contradicts the evidence before it? Ethics: Challenging/appeal for the purposes of delay. Can get a stay of the rule when you appealshould you if you know you will lose? Must be in good faith, cant be frivolous.

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What if youre bringing the appeal solely for delay or partly for delay o You cant ethically bring an action to solely cause delay.

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ADJUDICATION INTRODUCTION TO ADJUDICATION First question: is it formal adjudication or informal adjudication? What does it mean to say that adjudication is formal? 554 Five subsections: Lists areas where adjudication doesnt apply Notice required how much and what General procedure. If you cant settle it, you have a formal hearing under 556 and 557 Ex parte communications Declaratory orders 556 and 557 cover formal adjudications 556 covers hearings. Establishes the formalities very trial-like. Produces a lot of paper which has to be the exclusive basis for the decision (556(e)) 557 covers decisional process and internal appellate process. 556(a) & (d) Burden of Proof: Proponent has burden of persuasion Also known as a trial hearing, evidentiary hearing, trial on the record, or formal adjudication. If statute doesnt require a hearing, but the Constitution does: if statute doesnt require a hearing to revoke a license, due process does require it. Therefore its a required hearing, and so you have to do it according to 556 and 557. Fulfills the due process requirements. Later well read a case that calls this into question courts now think due process doesnt require as much as 556-557. Use formal process when hearing is required by statute, on the record, etc. same language as formal vs. informal rulemaking. States vary in what they require some dont follow the APA model. Some just list a bunch of situations that require a formal adjudication. Informal adjudication If you dont get a formal one, what do you get under the APA? Nobodys sure the APA doesnt have a lot of guidance. Informal adjudications include deciding welfare benefits, deciding whether someone gets into a state law school. Sea Coast (p. 198) If youre asking for permission, its a licensing proceeding. Licensing proceeding is adjudication. Includes licensing as a matter of statutory definition. Language is set out on p. 199 if after opportunity for a public hearing, person demonstrates to the administrators satisfaction, then they can get a license. Does this require a formal hearing? Court says its not clear what they had in mind. In rulemaking case about railroad, court said if Congress is vague, you use informal rulemaking. But here with adjudication its the opposite: if Congress says a hearing is required and they dont specify, then were going to require a formal adjudication. Southwest Sunsites v. FTC: SW accused of misrepresenting investment and potential land value to reasonable consumers - is notice required satisfied where parties understand relevant issues and were afforded full opportunity to justify their conduct? - APA requires parties involved in agency complaints to be timely informed of the matters of fact and law asserted - Std used by FTC was different than that used by judge, but imposed a greater burden on agency since probably deception and detriment to the consumers had been expressly proved - SW had more than adequate opportunity to respond to the complaint

(a) (b) (c) (d) (e)

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John Capanos v. FDA - lack of proper notice? may agencies summarily withdraw approval for applications after providing the party with due notice? Yes - no ambiguity, contained enough info to identify material facts Wallace v. Brown: full disclosre of hearing required opportunity for cross examination - element of fund. fairness PROCEDURE Handout: Three Models of Agency Decision-Making Mixed model Look at 554(d) judges are within the agency system. How can we get them enough independence to keep the adjudication from being entirely internal? Judges cant consult agency on an issue before them. Cant put judge in an office where theyre supervised by a prosecutor or investigator we want to insulate them from the policies and enthusiasms of the agency. If you want to punish an ALJ, you have to go to the Merit System Board to do it the agency cant fire them if its not happy. One of the reasons agencies avoid formal RM is that theyll have to use an impartial ALJ. In informal adjudications, they can use an administrative judge from their own agency, who doesnt have the impartiality and independence of an ALJ. How much deference does the head of the agency have to give to the ALJ? Agency head has enormous power under the federal act, but a lot less under the WAPA. To figure out how much independence there is, look at the statute that regulates relationship between judge and agency Look at how much deference the head of the agency has to give the ALJs decision Notice you can appeal if you havent gotten adequate notice AND you were prejudiced by your lack of notice. EX PARTE COMMUNICATIONS In a formal adjudication as required by the statute: (If it was informal, then the APA doesnt apply) a. 556/557 apply here since its formal. b. 557(d) i. Where do the ex parte communications come from? ii. Did the communications influence the decision-makers? iii. 557(d) doesnt apply to uninterested persons. (PATCO says that if someone has more of an interest than the general public, they might be an interested person.) iv. Must be outside the agency. (How far does the agency extend? Does it include members of the executive branch?) v. Target can be any member of the body comprising the agency, the ALJ, any other EE who may be or reasonably expected to be involved in the decision-making process. vi. Cant make an ex parte communication whats that? Definition is in 551. 1. Exemption: a status report request by an interested person outside the agency is not an ex parte communication. Why exempt these? Congress wanted to protect its own ability to make inquiries. 2. Exemption p. 243: accidental, passing contacts are okay. (but not a very strong defense.)

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vii. Communication has to be relevant to the merits. PATCO v. FLRA (p. 236) Secretary Lewis, although in the executive branch, was outside the agency. Importance of flexibility/common sense, dont want to have a mechanical rule. (see p. 241) Decision is not void b/c of ex parte contacts, but is voidable. How can we tell if its voidable? See p. 242 for a list of factors: gravity of the offense, who benefited, how much it influenced the decision, did opposing parties know about the contacts and get to respond, and would it serve a useful purpose to remand the agencys decision. Stone v. FDIC (p. 246) Only new and material information introduced by the ex parte communication will violate DP. So someone would have to show whether this was new information.
Is it relevant that this communication didnt go right to the decision-maker? Not reallyit still influenced the proceeding. DUE PROCESS APPLIES? Appearance of Fairness doctrine Even if judges dont talk about it, they respond to it. See the CALI lesson on ex parte. Does DP apply?Must have a STATE ACTOR. Londoner (p. 251) Levied assessment on Mr. Londoners property DP? Yes he has to be able to appear in person and challenge the decision. Bi-Metallic (p. 252) DP? No no hearing required. Whats the difference in the two cases? # of people extent of impact factual basis for determining the impact on each person (See p. 253 these Holmes three factors) Pierce/Davis discussion (p. 253) Legislative facts general facts, questions of law/policy/discretion Adjudicative facts who, what, where, why, etc. HOW TO TELL WHETHER DP APPLIES 1. State is a factor 2. Individualized determination a. Adjudicative facts b. Ask whether agency is making a judicial or legislative determination. i. Entitled to NO DP in legislative process (recall Londoner, which was more adjudicative) 3. Protected interest a. Property

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b. Liberty (Constitution limits the protection to certain interests) c. Procedural DP only reaches the question of what protections/procedures the student needs before
expulsion. Stigma Codd v. Velgar (p. 263) as a practical matter, will the stigmatizing remarks be publicized? Stigma Plus Doctrine does it impact future employment/education prospects? Fact must be relevant and in dispute if not, no reason to have a hearing. Property Goldberg (p. 256) once you qualify for welfare, you have a right to keep it. This case abandoned the rights/privileges doctrine. Roth (p. 257) Property, because had a legitimate claim of entitlement Sinderman (p. 259) had an implied K, so claim of entitlement. Is it an entitlement? Is the decision-makers discretion constrained? See p. 258: K? State law? WHAT PROCESS? History of DP jurisprudence Prior to 1970s who decides what interests are protected, whether its a right or a privilege? o Court ultimately decided whether it was a right or a privilege. o Had a long list of what was each which was a product of judicial bias on social importance of each interest. No principled way of making that distinction. 1972: who now decides what interests are protected, what property means, etc.? o Now legislature decides look to see whether the legislature has laid down a claim of entitlement. This was a major paradigm shift. o See Board of Regents v. Roth, Goldberg v. Kelly. Benefits: legislature is politically accountable. Risk of turning this decision over to the legislature: sometimes majority rule means oppression. Steps in the analytical process: 1. Whether there is a liberty or property interest Is it a property, liberty, right? Liberty is more of a judicial question. Is there a protectable interest? if so, then due process attaches 2. What procedures are required? When does a hearing have to occur? Goldberg v. Kelly (p. 266) Entitled to a hearing before termination of welfare entitlements. Question was WHEN the hearing should be held attaches before the injury/termination occurs. WHAT KIND of procedure required? pre-termination hearing plus many practices that are similar to formal adjudication. Problem with this holdingadministration of these elaborate procedures would be a disaster. Volume of cases would be enormousthe DP explosion. Matthews v. Eldridge (p. 268) Cost benefit analysis with 3 factors: Formula for deciding what procedures are required and when.

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1. What is the sufficiency/magnitude of the right affected? 2. Benefit of the additional procedures? 3. Costs of the additional procedures (cost to public)?
Eldridge was very poor, on welfare, clear on record that he was destitute. Court brushed it off by saying that in general there is nothing in the disability system that says you can only get disability if youre poor (as opposed to the Goldberg welfare case). This case was wrong on its facts, but is it a good general rule? Could have made a case for more testing of the facts presented on Eldridges disability. Look at the 3rd step: costs Administrative burden and other societal costs. Cost of conducting the hearings rooms, judges, secretaries, etc. Cost of improperly paid benefits during a hearing before someone is found ineligible. Costs to other people who are eligible (who cant get attention from agencies that are busy with hearings) or who get less when limited resources are diverted to hearings. Judicialization: substitute of judicial opinion for expert decision-makers at the agency. How do you measure this cost? High Substantial Medium Insubstantial No cost

Cost/benefit analysis: More formality = more coststop where the benefits are optimum as well, or they will start costing too much (recall Andersens diagram where the lines for benefit and cost cross (cost is y, formality is x axis) Board of Curators of the University of Missouri v. Horowitz (p. 273) Didnt reach the question of whether state medical college attendance is a property right. BIAS

There must be some level of neutrality in the decision-maker for things to be FAIR. See the FTC case, where members of the board had opinions prior to the decision, but was held to not violate DP because their minds werent irrevocably closed before hearing the evidence. Is the decision-makers mind already made up? o Predisposition on a legal issue (or even policy issues) does not disqualify a judge. o But if the judge has an opinion about the facts, thats a problem. o Judges are reluctant to find a decision-maker to be biased. Structural bias (decision maker investigates and judges combination of functions) is not necessarily disqualifying either. 554(d) effort to separate functions in the APA. But 554 doesnt apply to the head of the agency, for practical reasons. What about actual or probable bias (in the head of the decision maker)? it is disqualifying, but rare. Pecuniary interest, criticism of a particular party.

Withrow v. Larkin (p. 278) Sometimes those who investigate are the judges as well. JUDICIAL REVIEW FACTS Formal Cases: Where do you look for the standard of reviews magic language? Always start looking IN THE STATUTE APA Agencys enabling statute Some statutes apply across the board to many agencies

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Where else do you look? Agency regulations Legislative history or commentary from Congress Less intensive No review Arbitrary and Substantial Substantial capricious evidence test evidence on under whole record Edison Clearly erroneous Preponderance of the evidence More intensive De novo

Variety of grounds by which agency action can be reversed: 706(2)(B) has the Constitution been violated? 706(2)(C) has the agency exceeded its statutory authority? 706(2)(E) fact issues: substantial evidence test, applied usually when theres been a formal hearing on the record. 706(2)(F) fact issues; provides de novo review rarely 706(2)(A) arbitrary and capricious test, which can involve legal, factual, or mixed issues a.k.a. abuse of discretion/rational basis test. 706(2)(D) court can reverse an agency because of procedural error. SUBSTANTIAL EVIDENCE When is the substantial evidence test used? If the proceeding is a formal one, with a decision based exclusively on a formally compiled record (formal adjudication for example), then substantial evidence might be relevant to some matters (like factual findings). APA 706 says that any formal proceedings are reviewed for substantial evidence. This test is often used even when not specified in the statute, when it seems like it fits Should be limited to factual issues. Changes to the standard over time (pp. 282-283) Consolidated Edison (1938) If there was more than a scintilla of evidence supporting the decision, it had to be upheld. No consideration of contrary evidence. Could a reasonable person have arrived at that conclusion based on the facts in the record that support the conclusion? Doesnt take into account any contrary evidence. Universal Camera Corp. (1951) Substantial evidence test applied to the evidence on the whole record on both sides. More intensive than the Edison test. CLEARLY ERRONEOUS In re Zurko does the reviewing judge have a definite and firm conviction that an error has been committed? Used for appellate courts reviewing a trial court finding of fact. Reviewing the ALJs determination Court of Appeals | [Substantial Evidence test] | Agency |

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[De novo review] | ALJ 557: Agency has all the powers of the ALJ when reviewing his findings, so its de novo and theyre not required to defer to the ALJs findings and conclusions. Why? Agency has more political accountability, expertise, and legitimacy. Can the agency ignore the ALJs findings? Universal camera says nosometime agency has to consider ALJs findings. ALJs findings are part of the whole record, so when the appellate court asks whether the agencys decision is based on the whole record, it will look to see whether they considered the ALJs findings. Demeanor of witnesses in the hearing and credibility are better decided by the ALJ who was there. JUDICIAL REVIEW LAW/FACT Pure question of law: can be determined without reference to the facts (whats the speed limit?) Pure question of facts: can be determined without reference to the law (how fast were you going?) Scope of review: Pure fact: de novo Pure law: substantial evidence Mixed: agencys decision should be based on the record and have a reasonable basis in law. NLRB v. Hearst (p. 297) Court looked to legislative history, finds that the term employee is to be interpreted broadly. No deference at all on that question. On the question of whether the newsboys are ees, we have the Hearst formula: is the agencys judgment reasonable? Pretty deferential. Standard of review is distinct for the law and fact issues: o Law: is there a reasonable basis in the law? o Fact: does it have warrant in the record?

1.

2.

Hearst 2-part test: (p. 299) Has congress defined the term, or delegated it to the agency? Look to legal sources Statutory language Structure Goals/purpose Legislative history If no congressional definition, its left up to the agencys reasonable interpretation. If question is one of specific application of a broad statutory term, deferential review is appropriate. Chevron and Hearst are extremely similar: Step 1: no deference Step 2: fairly deferential Evening Star: Why did he have the gun? Court concluded that it was plausible for him to have it for safety in his job. It was within the scope of employment even though objectionable. Took place during an enforced lull. Durrah

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No connection between the violation and the injury. Was he close enough to what he should have been doing that he was in the scope of his employment. ARBITRARY AND CAPRICIOUS 706 has a bunch of standards many are applicable to particular statutory situations, but arbitrary and capricious can be applied to just about anything. Abuse of discretion is kind of the same thing, so you can use the cases on abuse of discretion to help you with arbitrary and capricious. Whats discretion? If the agency can give a fine of up to $100 for speeding, depending on various factors, any fine of $100 or less is presumably within its discretion, and anything over $100 is not. What if someone has a perfect driving record, was barely speeding, nobody was hurt or endangered, and the agency person gave them the maximum $100 fine? Thats abuse of discretion. Why? They ignored the factors that the legislators wanted to use, and made the decision based on some other, non-permissible factors. One judges definition: A clear error of judgment about weighing the relative factors.

How does this work in practice? See Overton Park (p. 307). Statute gives the factors that must be weighed to make a decision. Did the Secretary follow them? We cant tell the Secretary didnt articulate his rationale. If you dont identify the rationale, the court cant review your decision, so the decision-maker needs to be explicit. Agencies dont have to follow their own precedent, but if they dont justify the change, theres a risk the decision will be arbitrary and capricious. First, find out what the agency did. Next, look for a mistake in the balancing of the factors a clear error of judgment. Whats the standard? Used to be that anything non-crazy was okay. But after State Farm, the hard look standard might be applicable in adjudication as well as rulemaking. State farm: adequate reasons: 706(2)(E): in informal rulemaking or informal adjudication, court reviews factual questions of law/policy

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CHOICE OF PROCEDURE ADJUDICATION When agencies want to adopt new policies, they have a choice of procedures, including adjudication, rulemaking, non-legislative rules, etc. Speeches and press releases might give some informal preliminary clues obviously not binding, though. Advantages of adjudication: Gives agency flexibility in a variety of situations good thing for agencies like the NLRB Disadvantages of adjudication: Doesnt provide the open forum of rulemaking, doesnt give a bright-line rule requiring a certain reimbursement system for everybody like rulemaking does, plus youre only hearing from the particular parties to the adjudication. NLRB v. Bell Aerospace: retroactive decision re: liability/fine - legal consequences mostly prospective, ct not to second guess Retail Wholesale: (1) first impression, (2) abrupt departure or fill void (3) reliance on formal rule (4) degree of burden (5) statutory interest Who gets to choose? Chenery: choice lies primarily in the informed discretion of the administrative agency. How do you show an abuse of discretion? Compare adjudication to rulemaking agency can make these choices. Especially if agency could show that there are so many variations in the market that one rule couldnt possibly cover everyone, or if the area is so new and unsettled that they dont know enough to make a good rule, then youd have a better argument for that discretionary exercise. Whats the burden? If FTC only issues a cease and desist, the burden is relatively small. If theyre requiring refunds, though, there is probably a lot more, and youd need to show that the statutes interest in consumer protection was high enough to justify that huge burden. Five factors at top of p. 328 you have to look at the particular facts of the case and see how the factors apply. Generally, courts wont find an abuse of discretion unless theres a retroactive application that causes more harm than good. (1) first impression, (2) abrupt departure or fill void (3) reliance on formal rule (4) degree of burden (5) statutory interest

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RULEMAKING Legal issues that arise when an agency chooses to do RM: 1. Does the agency have the authority to promulgate substantive rules? 2. Can the agency restrict the scope of adjudicatory hearing rights by promulgating a rule that eliminates the materiality of facts that otherwise would be subject to resolution in a hearing? 3. Can the agency give retroactive effect to a rule? 4. To what extent does DP limit an agencys authority to use adjudication to clarify an ambiguity in a rule? Impact on adjudication rights: By adopting a legislative rule, the agency might be able to limit the scope of rights to formal adjudication. Storer Broadcasting Co. (p. 333) held that it was okay even if RM did have this impact. no material facts, no hearing Retroactive rules: Bowen v. Georgetown Univ. Hosp. (p. 334) Agencies do not have the power to give rules retroactive effect without an express grant of such authority by Congress. Ambiguous rules: GE v. EPA (p. 337) Violates DP when EPA enforced a reasonable interpretation of their own regulations because it did not give s fair warning of what was substantively required by the regulation. POLICY STATEMENTS (NON-LEGISLATIVE) 553 recognizes two types of non-legislative rules: policy statements and interpretive rules. Benefits of non-legislative rules: Efficient, easy to inform public, can issue guidance to agency employees. Legal issues that can arise: 1. APA does impose some requirements, and agency might fail to meet them (not as strict as notice & comment, but still some substantive requirements. 2. Party might challenge the rule by saying it is really legislative and should have gone through notice and comment. 3. What are the consequences when the public relies on the non-legislative rules, and then the government later refuses to follow it? 552(a)(1)(D) FOIA requires publication in the FR of statements of general policy or interpretations of general applicability formulated and adopted by the agency. 552 person may not be bound if the statement was not published in the FR, unless the person had actual and timely notice. How to tell the difference between legislative and non-legislative rules? Often hard to do, and the agency will try to claim that something is non-legislative. POLICY STATEMENTS

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Issued to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power in subsequent adjudication or rulemaking. Does not purport to interpret an existing duty in a reg. or statute. So courts use the binding effect test to tell the difference between rules and policy statements Does the statement impose a new duty or merely announce the intention to impose a new duty at some future time? INTERPRETIVE RULES (NON-LEGISLATIVE) INTERPRETIVE RULE Interprets or clarifies the nature of the duties previously established by an agencys statutory mandate or by a regulation promulgated by the agency. Pros: quick guidance to public, flexible for agency. Cons: lack of consistency, may have different standards in different areas. Check: when does a rule merely interpret another rule, and when is it just adding/changing the old rule without going through the formal process? Duty of the agency? ( 553)three main questions 1. What process is needed to promulgate an interpretive rule? (553: publication in FR, but no notice or comment) simpler, cheaper, quicker process than normal 553 rules. 2. How binding are they? May the agency change them? Can they be enforced against the parties? 3. How much weight does a court give? How much deference? American Mining Congress v. Mine Safety & Health Administration (p. 357) Four tests for whether its a legislative rule: 1. Look at agencys intent (in our problem, they probably didnt intend to make it a rule. But intent is tricky, and the agency may be deceptive about their intentions) 2. In the absence of the interpretive rule, can they enforce any standard? If the statute is very specific, then the memo is likely an interpretive rule. But if the statute is vague and broad, and the memo is more specific, then it might be more legislative. 3. Was it published in the federal register? (but 552 requires publication of interpretive rules in the FR! Not a good criteria) 4. Does it amend the existing legislative rule? Basically, intent and whether the rule adds a new duty are the key factors. ESTOPPEL What can you do if you rely on policy statements, interpretive rules, or statements by lower level employees of the agency? Is the agency bound? Is the agency bound by the misstatement of their employee? Was your reliance reasonable? Should you have sought out a higher level to ask your question of? Should an agency be bound by the statements of the low-level employees? Tension between feelings of fairness toward the party who relied on the misrepresentation, and the fairness to the agency to not be stuck by the misstatement. Heckler v. Community Health Services (p. 374)

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Governments intermediary approved a claim, money used to provide services for the poor. Government now wants the $70,000 back. Court says tough! There would not even be estoppel against a private party in this situation they basically got a no-interest loan, so the court says there was no detriment. Was it reasonable though? 2 elements of estoppel 1. change in position to detriment 2. reliance was reasonable includes the obligation to find out on your own! When the issue is complicated, you have a duty to not just take a lower-level officials word for it. Oral Advice Why is that less reliable than a written piece of advice? Statute of Frauds issues come up. Who gives the advice Lower-level manager is less reliable. Go to the highest level you can. Office of Personnel Management v. Richmond (p. 379) Federal Crop Ins. v. Merrill is cited; farmer called to ask about seeding his crop, and the agent said that seeding had nothing to do with claims for loss. Now when crops are destroyed, farmer isnt able to get coverage despite his detrimental reliance. If the insurance had been a private company, he might have prevailed. But when the agency is the government, then theres a better argument not to allow lower agents misstatements to become US policy. YOU RELY ON INTERPRETIVE RULES AT YOUR PERIL! And might still be out of luck if you ask a lower agent. Get things in writing Get the approval of the highest level you can Line up others who have been told the same advice. Basic rule: ALMOST NEVER is the government estopped by statements from lower agents. (Supreme Court keeps the door open, though, so estoppel might be allowed if the right case comes up). JUDICIAL DEFERENCE We know that Chevron is the proper level of deference to give to regular agency rules. But what deference is due to interpretive rules? Skidmore v. Swift & Co (p. 387) Interpretive rules are due less deference. Court isnt bound by agencys statements: See top of p. 389 court looks at agencies experience, logical consistency, validity of reasoning, etc. Rulings, interpretations, and opinions of admin of Act, while not controlling upon the courts by reason of authority, do not constitute a body o explicitly and informed judgment to which the courts and litigants may properly resort for guidance. weight of judgment to which courts and litigants may thoroughness evidence in consideration of validating of reasonableness US. v MEAD not Chevron deference - Skidmore persuasiveness BARHNART V. WALTON clarifies Mead whether a court should give deference depends in significant part upon interpretive method used and nature of question at issue 1. 2. 3. 4. 5. interstitial nature of legal question related agency expertise importance of question to administration of the statute complexity of administration and careful consideration agency given to question

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all indicate chevron provides appropriate legal lens through which review of interpretation CHART!

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REVIEWABILITY STANDING PRESUMPTION OF REVIEWABILITY 702 - who? 704 - what? Exceptions: 701(b)(1), (a)(1), (a)(2); 704; not ripe Agency order obstacle obstacle judicial review. Why does have to jump hurdles like standing, ripeness, exhaustion of remedies, etc., before they can be heard? efficiency of court system constitutional limitations on cases and controversies protects separation of powerscourt wont act like legislature by giving advisory opinions better prepared/dedicated s Competency keeps judges out of highly technical areas that require agency expertise Legitimacy keeps courts out of policy making o Courts need a concrete set of facts o a real dispute between parties who might truly be impacted o a finished dispute with a final agency action Hurdles to overcome: (p. 403) 1. Does court have jurisdiction? must have standing Statutory grant of jurisdiction to that particular court 2. must state a cause of action must be a statute giving a judicially-enforceable right. Some statutes create both jurisdiction and a cause of action. 3. Four requirements established by APA: 701(a) Appeal must not be excluded from review (preclusion, committed to agency discretion) 702 Cause of action limited to those suffering legal wrongs o Are you in the zone of interests? 704 Only final agency action is reviewable. 704 must have exhausted administrative remedies. 4. Case/Issue must be ripe maybe pre-enforcement review is not available. Standing Constitutional basis comes from the judicial limits in Article III courts shall only hear cases and controversies. (see p. 407) Elements of Standing 1. Injury in fact (used to be only economic/legal wrongs, now includes aesthetic, recreational injuries as well) must be concrete and particularized, and actual and imminent, not conjectural 2. caused by the alleged illegal action fairly traceable to the action 3. would a favorable court decision likely remedy or avoid that action? standing in own right OR Organizational standing Groups like Sierra Club or World Wildlife Fund can bring suit if: 1. one of its members would have standing to bring the suit individually 2. lawsuit relates to purpose of the organization - germane to purpose 3. neither the claim asserted nor the relief requested requires the participation of individual members (must be for injunctive/declaratory relief, not damages).

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Lujan (p. 414) Plurality opinion: Judges Scalia, Thomas, Rehnquist, White Kennedy, Souter Stevens Number 4 2 1 Opinion NO injury was sustained to Wanted a better showing of injury if had actually bought plane tickets, that would have been enough for them. had standing; had an injury that could be redressed by the court, but would have lost on merits. would have won on merits

Blackmun, OConnor 2

So here we have 6 votes against standing for the s, but 2 of the votes are fairly soft on the requirements. *** Judges can raise question of standing sua sponte. Mass v. EPA: as a state: on behalf of citizens, lost property, health and welfare; Causation: EPA concl. greenhouse gas causes global warming; redress ability summers v. earth island institute: no standing because to broad of area of forest CAUSE OF ACTION zones of interest part of the standing analysis PRUDENTIAL Standing 702: statutory and non-statutory review

Person who suffers a legal wrong entitled to review. Can be adversely affected or aggrieved by the action of an agency within the meaning of a relevant statute

Relevant statute: was it enacted with this type of in mind? Intended to protect ? Air Courier Conference of America v. APWU, ALF-CIO (p. 432) NO CofA because the statute not intended to protect their jobs. Only intended to help the post office, not the economic welfare of the postal workers. HARDER STANDARD: Makes a tighter zone than Clark if Congress didnt mention the postal workers or intend to protect them, youre outside the zone. Natl Credit Union Admin. v. First Natl Bank & Trust Co. (p. 435) Statute limits CU benefits to those who are employees or related by common bond of occupation. Regulation interprets the common bond language to permit the credit union to extend the credit services broadly, to permit credit unions to be composed of multiple unrelated employee groups. Who has standing to challenge it? Another bank that is pissed that these credit unions are getting competitive. Court splits 5/4 about whether they have standing.

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Does the statute confer benefits on bankers? Held: standing allowed because bankers were in the zone of interest. But both majority and minority say that there was no intent to protect other banks from competition by credit unions. p. 436: interest sought to be protected must be arguably within the zone of interests to be protected by the statute. Clark case cited in this chapter (p. 439). Statute authorized control of currencyzone of interest test is not terribly rigorous. EASY STANDARD: Only people who are excluded from standing are people who are so marginally related to the statute that it cannot reasonably be assumed that Congress intended to permit the suit. p. 705: Association of Data Processing: judicial interpretation of second part of 702. 1. injury in fact 2. be in the zone of interest This doctrine is troublesomeenvironmentalists seem to lose but bankers/economic interests get standing sometimes. PRECLUSION; COMMITTED TO AGENCY DISCRETION Preclusion of Judicial Review Statutory restrictions on a courts jurisdiction ( 701(a)(1) If Congress precludes review, APA does not provide an independent basis for jurisdiction). Abbot Labs v. Gardner (p. 443) FDA regs: have to put generic name after brand name on all medicine labels. One way to get review: wait until agency tries to enforce the action against you. Here: pre-enforcement review. Is judicial review precluded? Strong presumption of judicial review If Congress says nothing, then review is available. Will only cut off review if Congress says it in a clear and convincing way in an explicit statutory provision must have a persuasive showing that Congress intended preclusion. Why do courts construe this so narrowly? Courts feel pretty strongly that they should have the right to review government action. Block v. Community Nutrition Institute (p. 446) Milk market would have low prices if unlimited competition among farmers and processors. Here, the price is fixed by the Secretary of Agriculture under the Agricultural Marketing Agreement Act. Farmers and producers agree on the price, and the Secretary approves the order. Cartel members have to prevent members from cheating by lowering their prices. A way to cheat here is to reconstitute powdered milk and sell that cheaper Class II product for Class I prices. So the rule is that reconstituted milk has to be sold at the higher prices but now theres no cheap milk available for poor people so the consumer group is mad. A problem here is that the farmers and producers wont challenge their own structure. So if consumers cant do it, who can? Held: Congress intended to preclude consumer challenges to the Secretarys market orders. Court of Appeals used the clear and convincing standard, but OConnor said that the presumption of review is overcome when

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congressional intent is fairly discernible from the statutory scheme. This would disrupt the complex and delicate scheme. How has Abbot Labs been altered? New test: Is Congressional intent to preclude fairly discernible from the statutory scheme. More of a mushy standard. Community Nutrition standard still retains the presumption of review, and there still has to be something in the statute or scheme to indicate Congress wanted to preclude review. Committed to Agency Discretion 701(a)(2) also excludes agency action from review to the extent that an issue is committed to agency discretion by law. (So some parts can be reviewed and some are unreviewable). 706(2)(a) courts can review for abuse of discretion. How does this fit into 701(a)(2)? Was this crappy statutory drafting? Heckler v. Chaney (p. 451) Death-row inmates about to be executed by lethal injection. Worried that the drugs used have never been tested to make sure theyre safe and effective for this use. Petitioned the FDA to investigate this drug for this particular use. FDA refuses to act worried they lack jurisdiction, but they have the discretion to pursue certain enforcement issues and choose not to do so here. Has this been committed to agency discretion to decide not to pursue enforcement? Look to the agencys statute: does it give guidelines for how the agency is supposed to act are there meaningful guidelines and standards? Overton park is there no law to apply? If not, it has been committed to agency discretion and the court wont review it at all. Can you review if the agency takes a bribe, or has a horrible, untenable position? Court says that review would be appropriate in some circumstances, if there was an illegal act or constitutional rights involved. Why does the court reverse the presumption of review? There is no overt act here, only inaction Traditionally more deference in this area Are they still hurting people with their inaction? Can still use EP/DP standards to review. Webster v. Doe (p. 457) Can fire someone when you deem its in the national interest this is a HIGHLY discretionary standard. Scalias dissent: doesnt like the black-letter rule of no law to apply. Thinks the analysis is more complicated and that it shouldnt be the only factor to apply. He believes that commitment to agency discretion circle is larger than the no law to apply circle. He doesnt find this formula very helpful. EXHAUSTION Three things impact timing of judicial review: 1. Final agency action 2. Exhaustion of remedies 3. Ripe for review

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Finality Is it final? Has the agency made a final decision, or can it change its mind? Is it stable and authoritative? Taylor-Callahan-Coleman Counties District Adult Probation v. Dole (p. 469) Wage and Hour Administrator says that probation officer is an administrative, executive, or professional employee, not entitled to overtime pay, but a DOL opinion letter said otherwise. DOL has stated that advisory interpretations from the Administrator are just for guidance but DOL doesnt have to be followed. This was not a final DOL action, so under 704 there can be no review. The letters in this case were not specifically tailored to the district they had no direct or immediate impact on the district, and did not require immediate compliance by the district. See p. 472. Franklin v. MA (p. 467) Authoritative and Final (not that it wont change, but that it is the consummation of the agency decision making process, e.g. theres been closure) Impact on plaintiff is sufficiently direct and immediate and has a direct effect on day-to-day business. Is the agency just stating an opinion or is it commanding, dictating, etc., which is not just advice. Tone of the document is important to judges. Appalachian Power Co. v. EPA (p. 473) Lower-level guidance notices held to be final, because they reflect a settled agency position that carries legal consequences for people who fail to comply. How to distinguish Appalachian from Taylor? Person who signed it? (doesnt seem to be relevant in predicting the result here. In Appalachian, low level persons signed the final guidance notes). Impact on parties different? Is it binding? See Appalachian p. 474. If the agency is changing its mind, does that affect it? Doesnt seem to have much bearing on the distinction. Is the agency doing an end-run around rule-making processes, and creating a comprehensive scheme using informal opinion letters? Exhaustion of Remedies Lots of exceptions created to soften this doctrine. (see p. 480). See section 534 of WAPA also, which lists exceptions. Under 704, you can go from ALJ to an appeal in court. mccarthy v. madigan darby v. cisneros RIPENESS Why have a ripeness doctrine? Courts want settled facts Dont want to be interfering in something they dont have expertise about. Dont want to be adjudicating abstract issues want the issue to arise in a concrete factual context. Dont want advisory opinions.

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See note 1 p. 487. Ripeness deals with the fitness of issues for JR. o Finality: Focus on : Can the issue be perfected by further agency action? o Exhaustion: Focus on : Can the help by exhausting remedies?

Abbott Laboratories v. Gardner (p. 489) Two-part test: 1. fitness of issues for judicial determination (specific, sharp, focused, concrete issues). 2. hardship of the parties if JR is withheld This test is the starting framework for any discussion of ripeness. Here, there was a purely legal issue: was the reg in line with the statute? So the issue was clearly fit for JR. But the court is hung up on the hardship to the parties. Majority thinks they should decide it now, because harm might occur to the plaintiffs if they dont review it now. There was a possibility that the agency might do an enforcement on civil and criminal levels but some parts of the case indicate that they would have agreed to seek lesser penalties. Fortas dissent would have required a greater showing of hardship. He would want the public interest to be factored in somehow into the 2-prong test. If the FDA rule is stayed pending review, the publics information might suffer. So their hardship is difficult, but not irreparable (see note 7 on stays p. 504) Ohio Forestry Assn Inc. v. Sierra Club (p. 494) Less generous to s than Abbott. Adds another factor: Would JR now hinder future action of the agency on this issue? REFINED: (1) whether delayed review cause hardship of s (2) whether judicial interference would inappropriately interfere with further administration and (3) whether courts benefit from further factual development of issue presented?

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