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Administrative Law (Judicial Review (Availability (Preclusion (701(a)(1)…

- - - - Consolidated Edison Co. "Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"
      - Universal Camera Applying the Substantial Evidence Standard- must look at the whole record (i.e. not just the record the agency cites in support of their position); the decisions of the ALJ that was later rejected by the Comm'n must be given its appropriate weight (i.e. factfinder, boots on the ground, witness credibility determination)
      - Allentown Mack Agencies cannot evaluate evidence on the basis of unarticulated presumptions and practices, even if those presumptions and practices could survive judicial scrutiny if they were explicitly adopted.
  - - - Power to persuade While not controlling, the agency's legal interpretation is evaluated based on
        
        thoroughness of agency consideration
        
        validity of reasoning
        
        consistency w/ earlier and later pronouncements
        
        Whether interpretation is long-standing
        
        Whether congress has reenacted same language
        
        Nature of agency's expertise
    - - Limitations
        
        Mead/Christensen/Chevron Step 0 Rules or orders lacking the "force of law" are not afforded Chevron Deference
        
        MCI/Brown & Williamson
        Chevron Deference is highly subject to the Court's level of vigor in searching for Congress' intent or explicit stance on the interpretation at issue
        
        Major Questions Canon (King v. Burwell) It can be unfathomable that Congress meant to delegate to certain agencies certain questions of law. No deference for "decisions of vast 'economic and political significance.'" i.e. above agency's paygrade. e.g. IRS interpreting what Obamacare meant by "exchange established by the state."
      - Touchstone (1) Congress delegated to the agency the power to make rules with the force of law; and (2) the agency interpretation claiming deference was promulgated in exercise of that authority
    - - An agency's construction of its own regulation is controlling unless it is "plainly erroneous or inconsistent with the regulation."
      - Limitations
        
        Anti-Parotting (Gonzales v. Oregon) "The existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute."
        \(\rightarrow\) should be Chevron rather than Auer Deference
        
        Fair Warning (SmithKline) An interpretation of a regulation promulgated after the litigated conduct is not afforded Auer Deference. Also unwarranted if
        
        plainly erroneous or inconsistent w/ the regs
        
        does not reflect agency's fair and considered judgment on the matter (e.g. post-hoc rationalization for litigation)
  - - - Definition of A+C (Hodgson) The Court is entitled to a "careful identification by the Secretary . . . of the reasons why he chooses to follow one course rather than another."
      - Hard Look Review (State Farm) An agency action is A+C under 706(2)(A) if it
        
        relied on factors which Congress did not intend
        
        overlooked alternatives w/o explanation
        
        failed to consider an important aspect of the problem
        
        so implausible that it could not be ascribed to difference in view or product of agency expertise.
      - Mass v. EPA While highly deferential review, "judgment" is not a roving license. Agency's policy decisions are confined to the boundaries the organic statute lays out (e.g. EPA should not take into account President's international policy plans)
  - - - 701(a)(1) Explicit/Implied Statutory Preclusion Clear and convincing evidence to overcome strong presumption of judicial review
      - 701(a)(2) agency action is committed to agency discretion by law. i.e. when there is "no law to apply"
    - - Zone of Interest (APA § 702) "A person suffering legal wrong because of agency action . . . within the meaning of a relevant statute is entitled to judicial review."
        
        Clark v. Securities Indus Zone of interest is read very broadly, "not meant to be especially demanding."
        
        Limitations
        
        Air Courier Zone of Interest test should not be conflated with injury in fact test. i.e. just because typists are injured in fact when an agency decide not to keep records, that does not mean they are within the zone of interest
      - Lujan
        
        injury in fact
        
        causation
        
        redressability
        
        Injury in fact actual or imminent; particularized (not common to everyone); concrete injury (tied to statute or common law)
        
        Causation Injury is "fairly traceable" to the challenged action
        
        Redressability Likely that a favorable decision will remedy harm
    - - Abbott Labs Ripe for review b/c impact on regulated parties was "sufficiently direct and immediate"
        A rule may be ripe for judicial review upon promulgation (before enforcement if the issues are
        
        fit for judicial review; and
        
        the party seeking review would suffer substantial hardship if review was delayed
        
        Absence of fitness (Toilet Goods Ass'n) mfrs challenged regulations requiring permission for FDA inspects to have "free access" \(\rightarrow\) Court held issue was not fit for review b/c unclear when FDA would actually order inspections, if at all.
      - APA 704 grants right of judicial review for final agency action
- - - - Art. I states that "All legislative Powers . . . shall be vested in a Congress" implying that no other gov't entity has the power to legislate.
      - Intelligible Principle Doctrine- Congress may delegate legislative powers so long as they provide an "intelligible principle" that limits the scope of the power. Very difficult to fail this test.
        Schechter Poultry Terms as broad as "[ensuring] fair competition" delegates near limitless power to the agency and violates nondelegation.
      - Benzene (Rehnquist Concurrence) Congress may not avoid difficult policy questions (e.g. valuing a life) by punting it to the agency.
    - - Schor Agency's adjudication of common law counterclaim does not contravene SOP b/c
        
        jd was limited
        
        counterclaim arose from issue Congress has specifically empowered the agency to adjudicate
        
        parties willingly submitted for agency adj
        
        orders were "enforceable only by order of the district court"
        
        Stern states Schor was an exception to the general rule that only public rights may be litigated by non-Art. III courts. In Schor, the claim before the agency and common law counterclaim were competing for the same amount of money at issue.
    - - Amtrak Delegation of regulatory/legislative powers to private actors is categorically unconstitutional (cannot be rescued by "intelligible principles doctrine"). Why government entity?
        \(\rightarrow\) Balance of factors
        
        statutorily required public goals
        
        prescribed considerations and priorities
        
        requirement that materials are sourced from the U.S.
        
        highly dependent on federal financial support
    - - INS v. Chadha Single House vetos are the equivalent of legislation (i.e. changes the rights and obligations of people, Congress presumed to wield) and must go through bicameralism & presentment.
  - - - Buckley v. Valeo Those wielding "significant authority pursuant to the laws of the United States. More than simply "investigatory"
      - Freytag/Lucia Special Trial Judges are officers because of the significant discretion they have- they perform more than "ministerial tasks." i.e. take testimony, conduct trials, rule on the admissibility of evidence, and power to enforce compliance with discovery orders.
    - - Morrison Balancing test
        
        inferiority (removable by someone higher up)
        
        restricted in what he can do
        
        exercising limited jurisdiction
        
        temporary tenure
      - Edmond Inferior officers are officers whose work is directed and supervised by principal officers
      - Who can appoint an Inferior Officer?
        
        Heads of Departments What defines a department? "Freestanding component of the Executive Branch, not subordinate to or contained within any other such component." Free Enterprise Fund
        
        President w/o confirmation of Senate
        
        Courts of Law Not necessarily Art. III courts, See Freytag Chief Judge of Tax Court (Art. I) could have appointment powers.
    - - Weiss (?) Congress may not place impermissible limitations on the people the President may appoint. e.g. requiring Ph.Ds for appointees where it is not clear that having would be especially useful.
- - - - 551(7) Adjudication
        
        What happens if the organic statute just requires a "hearing"?
        
        Informal
        
        City of West Chicago Presumption of informal adjudication in the absence of clear congressional intent for formal
        
        Chemical Waste Management Chevron deference to the agency's interpretation of the statute on whether formal/informal adjudication is required.
        Why? Leave it to the experts (some types of cases would require more procedure than others)
        
        Heckler v. Chaney An agency's decision not to enforce its own regulations through adjudication is not reviewable under 706(2)
        
        Formal
        
        Seacoast Anti-Pollution League Presumption of formal adjudication.
        Why? No rules laid out for informal AJ in the APA, even though the language suggests presumption is informal (requiring a trigger language)
        
        Definition
        
        Licensing (i.e. asking for permission), etc.
        
        Anything other than a rule
      - 551(5) Rulemaking
        
        Informal
        
        553(b) Requirements
        
        NPR in the Federal Register (provide rationale and data to promote a meaningful N+C)
        
        Opportunity for N+C
        
        Adopt a general and concise basis for the rule (logical outgrowth rule; address all significant comments)
        
        Judicial gloss
        
        Vermont Yankee Courts may not impose additional procedural requirements to the N+C process
        
        Logical Outgrowth Rule Final rule must not be a material alteration of the proposal \(\rightarrow\) could the parties have anticipated the final rule based on the proposed rule and comments?
        
        Disclosure Requirement Release data and studies on which the proposed rule is based \(\rightarrow\) give parties an opportunity for meaningful N+C
        
        Concise and General Basis Agency must respond to every significant comment
        
        Florida East Coast RR In the absence of clear trigger, the presumption is informal rulemaking.
        
        Formal
        
        Escape Clause An agency may eschew an oral hearing (instead opting for submission of written evidence) in formal rulemaking when a party will not be prejudiced thereby.
        
        Trigger (Florida East Coast RR) While the words "on the record after opportunity for an agency hearing" of 553(c) are not magic words, the key component of formal rulemaking is one made on a closed record.
        
        Entitled to
        
        What this gets you Opportunity for
        
        cross-examine
        
        submit rebuttal evidence
        
        oral hearing
        
        APA 557 (governing oral hearing) agency must provide essentially a written opinion detailing reasoning and evidence used
        
        How do we know a document is an exemption?
        
        ATA v. FAA "Fairly Encompassing" Rule- is the interpretive rule/statement of policy merely clarifying a view of the statute/regulation?
        US Tel. Ass'n v. FCC Practical Impact on Agency Behavior- ex post review of agency actions (is the agency overwhelmingly following the guidance doc/interpretive rule?
        P2C2 v. Shalala Binding norms-
        
        objective interpretation of the document whether it's imposing rights and obligations, e.g. providing a safe harbor or exclusive means to do something
        
        whether the agency treats it as binding on itself (removing its discretion) e.g. contain mandatory language, enacting a safe harbor
        
        Definition
        
        general or specific
        
        future effect
        
        legislative fiat: rate-setting (Florida East Coast), etc.
      - Records Overton Park
      - Agency choice b/w RM and AJ (Cherney II) The discretion to choose b/w rulemaking and adjudication lies solely with the agency
    - - What is the proper procedure due?
        
        What does your client want?
        
        opportunity to cross-examine or challenge evidence used
        
        explanation for final decision
        
        oral hearing
        
        neutral decisionmaker
        
        Eldridge Balancing test
        
        Private Interest
        
        Erroneous Deprivation
        
        Gov't Interest (Black's dissent in Goldberg)
      - Was there infringement of a protected interest?
        
        Roth Analyze Life, Liberty, and Property interest separately.
        "Irreducible Core" of Liberty/Property -> common sense analysis
        Overturns Goldberg "grievous loss" theory of property interest
        
        Reputation+ Theory Damage to reputation unaccompanied by an actual infringement of liberty/property interest is not enough to warrant Due Process protection
        
        Entitlement Theory (Roth/Sindermann) a protected entitlement interest (separate from life, liberty, property) may arise from a concrete rule about which there is a "mutually explicit understanding"