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ADMINISTRATIVE LAW - Coggle Diagram
ADMINISTRATIVE LAW
RULE-MAKING
C. Hybrid Procedures
By Statute - Congress has added in some statutes - procedures beyond APA - somewhere in between informal and formal rule-making
EPA - Clean Air Act – rules to stop ex parte communication [docketing; oral presentations]
FTC - visibility [ notice of rules with reasons; informal hearings; submissions public]
Judicially Enhanced Hybrids - How far can courts go in adding requirements to statute or APA – Supreme Court impact
NRDC v. Nuclear Regulatory Commission (D.C. Cir. 1976) - Waste disposal – spent fuel - NRC Rule based on formula and scientist conclusions – no cross or pre-hearing discovery – Court of Appeals -wants to add additional procedures
Vermont Yankee v. NRDC [S.Ct. 1978) – Rehnquist – Major – Major Case
APA process is “maximum procedural requirements” that Congress decided should apply – agencies can add but courts can’t –
Any exceptions must be extremely rare
Administrative agencies should be free to fashion their own rules of procedure
State of NY v. NRC (D.C. Cir 2016) - no permanent repository of nuclear waste - NRC now use “generic EIS” - environmental costs of indefinite storage in pools
Ok - not have to consider all variations of safety, seismic risk and populations density of each site – not need perfect analysis - “only one that is thorough and comprehensive”
Courts now accept disfavor of additional requirements - unless go to fairness and completeness of record
American Radio Relay League v. FCC (D.C. Cir. 2008)
Rule as to use of radio spectrum struck down by D.C. Cir.
not make studies fully available only in redacted form
Agency - not “hide and seek” to outsiders so they can’t raise issues –
here not making new rule - adopt “notice and comments” - so must give full notice to allow full comment
B. Rule-Making Procedure
Integrity of the Record
Political Influence
Most courts ask agency to allow comments on last minute or late comments – unless not significant [who decide ?]
Sierra Club v. Costle (D.C. Cir. 1981) sulfur content of coal – late comments and meetings with legislators
Allows post-comment – but must docket [notice] – agency decide if “central relevance” – so Allow ability to have responses
Not be two records – public and not public
Briefings of legislators – ok – so long as not undue pressure
Meetings with President and other internal – part of review – not disclose or docket
How far allow – not to specific quid pro quo
Impartiality
FTC Chair Pertschuk – speeches; staff report
Asstn of Natl Advertisers (D.C. Cir. 1979)
Is rule and not adjudication – informal internal and external contacts allowed
only disqualify when “clear and convincing showing that agency has unalterable closed mind on matters critical to
Department of Commerce v. New York (2019) – Department of commerce want a citizenship question on census – C.J. Roberts found the real possibility that all the arguments were “pre-textual” – that there was no “open mind” - “contrived positon” –
Is this any different than Pertschuk’s involvement in Children’s advertising issue?
Decision Statements
Decision Statements – “a concise general statement of basis and purpose”
To allow reviewing court to see what major issues of policy were ventilated and why agency reacted as did
Nova Scotia Foods (2nd Cir. 1977) – FDA – not explain why all fish treated alike – needs “reasoned explanation” why chose one course
This plus “hard look” doctrine – voluminous records; findings; documentary support - ? Over-reacting - How informal is that?
Integrity of Record –Ex parte Contacts; Political influence; Impartiality
§557 (d) - prohibits ex parte contacts - in formal adjudications - trial type hearing integrity
But not barred in informal under §553 - compare to Congress talking to constituents
HBO v. FCC (D.C.Cir. 1977) - issue is “reasoned judgement”- fairness – not automatic bar to informal contacts
Now rule – limit restrictions to adjudicatory type – otherwise not ban ex parte during rule-making
Notice
Not need to give text of proposed rule - just “substance” or “ description of subject and issues
Guidance from D.C. Circuit – Adequacy of Notice – to Serve Policies
(1) improve quality of rule-making by allowing testing by exposure to diverse public comment;
(2) fairness by giving parties opportunity to express views;
(3) allowing more effective judicial review by enabling rule’s critics to develop evidence in the record
From Notice to Final rule – must be
“logical outgrowth”
Chocolate Mfg (4th Cir. 1985) – (flavored milk barred – Funded foods for children - WIC) - Original notice – not mention change included Long Island Care (S.Ct. 2007) )wage and hours – agency fill gaps – original notice – considering all options; was Fair Notice
Portland Cement (D.C. Cir. 1973)/ Nova Scotia Foods (2nd Cir 1977) – scientific background information not in notice – is bad
? Is doctrine still valid after Vermont Yankee (1978) –
states “notice disclosure - only need be “sufficient to ventilate the issues”
A. Introduction
Continuous nature of agency policy-making
no bright line between policy making and policy implementation
rules - to interpretations to policy guidance to phone calls to inspections and then orders and enforcement
rule-making done for most important decisions - and very visible- -
(1) Develop information
(2) Develop record for judicial review
3) Opportunity to question agencies premises
Most rules done by informal rule-making – and only a few statutes require formal rule-making and courts reluctant to interpret statutes to mandate formal rule-making – “legislative type judgements”
Informal Rule-making
APA § 553 - basic elements
(1) Notice
(2) Opportunity to Comment
(3) Final Rule- concise general statement of bases and purposes
D. Exemptions from APA
Exemptions from APA § §553. rule making
military & foreign affairs
agency management or personnel
public property, loans, grants, contracts
Also - unless a specific statute requires – not need notice and comment
“interpretative rules,
general statements of policy,
rules of agency organization, procedure or practice and
for situations in which an agency “for good cause” needs to dispense with notice and comment.”
Supreme Court - cases deal with conflict as to “legislative rules” [need notice and comment] and “policy guidance” and “interpretive rules” [not need notice and comment]
National Family Planning v. Sullivan (D.C. Cir. 1992)
HHS statement that interpret 1988 [“gag rule”] rule that banned any kind of abortion counseling [upheld in Rust v. Sullivan (1991)]to not apply to doctor-patient relationship” - no notice and comment
General rule - if properly adopted rule - not change meaning without notice and comment - as is amendment and not interpretation
Hector v. Dept of Agriculture [7th Cir. 1996 - Posner] - Rule for secure confinement of animals - 8 foot fence rule set but by regulation – with notice and comment - not just an interpretation”
Interpretation” means ascertainment of meaning – here just arbitrary selection of height - but is legislative and substantive and so needs notice and comment –
Need to listen to dealer and others before imposing
What are examples of interpretive rules -
1.Clarifies statutory terms
2.Remind parties of existing duties
3.Tracking language of statutory rules (explaining something already required)
But if do more than explain or remind - or clarify - is a new legislative rule – and need notice and comment process
Key to separate legislative from interpretative policies – is “Legal Effects Test”
If directly affect legal rights – need to follow APA as compared to policy interpretations by agency
How determine if need rule – as compared to mere interpretation
(1) in absence of rule - not be adequate legislative basis for enforcement or other agency action
(2) was rule published in CFR
(3) has agency involved its legislative authority
(4) does rule directly or indirectly amend prior rule
If any of above - is legislative and not interpretive
Some courts use “substantial impact” as compared to “legal effects” test – same results
Interpretive rule – not have same force of law as informal or formal based rule – but still defense – agency has right to interpret own rules
Azila v. Allina Health Services (2019) – Medicare Act requires 60 day public notice that impact substantive legal standard for payment of services – HHS – new policy without opportunity for comment [interpretive] – “dramatically reduce” payments to hospitals for low income patients – Gorsuch – for Court – “substantive” in Medicare Statute applies to any policy – so Section exemption as to interpretation as to policy – not apply – APA always limited by statute itself
Legal Status of Interpretive Rules – post – Kisor (2019)
“modified” Auer deference –
Kagan – interpretive [no notice and comment ] – not binding and not basis for enforcement – advisory
Gorsuch – concern – that are treated the same and could be basis for enforcement.
Organizational/Budget - Lincoln v. Vigil (1993) – closing of clinic – is part of organizational and budget policy – not rule – so not need notice and comment
But cf - VA - any award more than $250K to special Director for approval and individual affected not be told of such review of any reduction - held [D.C. Cir. 2009]- was change in substantive rule
Good Cause - must give brief statements of reasons and finding - impractical or unnecessary or contrary to public interest
Frieze prices - if not just do - massive rush to raise;
Quick action in national security - - aviation security post 911
But courts not accept - “impractical “ like personnel or budget cuts
Want reasons - Courts will allow it to occur at time of courts inquiry
If find not good cause - what is remedy - most not rescind - allow to stay in place while go back and do proper rule-making
.
Categorical Exemptions - like military - read broadly - but not to non-military functions for military [like hiring guards or cooks]
Agency management and personnel exemption - examples - maximum age for guards in prison; allocating of government owned oil to department and agencies
“Direct Final rule-making” - may be exception - agency promulgate routine regulations implementing a statute - gives date of implementation unless major objections -
F. Alternative Rule-Making Models
Negotiated Rule-making
Special Statute – 1986 – need; limited number of parties; act in good faith – convener - decisions have to be unanimous -
Reg-Neg
– once negotiated – then published and time for comments
Issues
Improper delegation to private parties
Open Meetings – Federal Advisory Committee Act
Subsidized participants
USA Group Loan v. Riley (7th Cir. 1996) – Negotiations DOE - student loan issues – schools want immunity; DOE no – offered cap on liability; schools say no – end negotiations –
so new regs – no immunity and no cap; Court – not enforceable commitment even if made – be vs idea of real notice and comment
Other Options
Pre-notice outreach [greenhouse effects] – industry and environmental groups support and then proposed rule and fast track
G. Cost-Benefit Analysis
MHB Article - ? Mean Less protection; more pro-industry
Diver – more realistic policy making
Concerns
“Monetization of Goods”
Other Morally Relevant Considerations
Overestimate of Costs [forced innovation]
Underestimate of Benefits [short-term vs Long-term - global warning; food for pre-school vs later health]
Measure “health” - “Compliance” - “power of lobbyists” - political contributions - “paid experts”
Concepts - more protective - vs technologically and economically feasible -
Pits agencies vs OMB
Issue is Statutory Interpretation – Courts allow unless explicit bar
Still every President since Carter – ask for “Regulatory Impact Analysis” – as to costs vs benefits – even though “might not be able to use” in decision-making
American Textile v. Donovan (Cotton Dust)(S.Ct. 1981)
Feasibility analysis - Congress put worker health above all else if achievable - not required to do cost-benefit analysis
Whitman v. American Trucking (S.Ct. 2001) - Scalia
Air Quality standards - “protect the public health with an adequate margin of safety” - Text and its legislative history - unambiguously bars consideration of costs
Statute Silent
Entergy v. Riverkeeper (2009) (Scalia) (Clean Water Act) (large power plants water discharge and impact on water and critters)
“Best technology available for minimizing adverse economic effects”
“Minimize” not mean greatest possible reduction also to a balancing
Discretion - can consider “reasonableness of relationship” between costs of reducing effluents and effluent benefits derived - “well within the bounds of reasonable interpretation”
Michigan v. EPA (2015) - Scalia - hazardous emissions - “appropriate and necessary” - must consider substantial costs involved
H. Presidential Oversight
Appointments; OMB Review; Emptiness of Bureaucracy; Lessen Scientific Research; Special Regulatory Procedures; Screening of Testimony
Agencies – Regulatory Agenda; Cost Benefit [Statutes Silent] [+/?]; Statement of Costs vs Benefits [Statutes Bar [+/-] – Review by Special Unit in White House [usually OMB]
Burdens and Costs to Agencies; Parallel Units to Departments in OMB
Trump – new rule; eliminate two; rescind rule – list costs of rules and not benefits of rescinded rule; decrease “regulatory budget and cap”
I. Impact Statements
Classic Example – is National Environmental Policy Act /Environmental ImpactStatements – non-binding – just options
Calvert Cliffs v. Atomic Energy Commission (D.C. Cir. 1971)
AEC - licensing of power plants - Not defer to other agencies or states - also vs NEPA – agency must consider environmental consequences from EIS
Issues
(1) what is a “major federal action”
(2) what is meant by “significantly affect the environment”
(3) No substantive component
Compare - Unfunded Mandate Reform Act- must describe costs to local movements and private agencies - with regulatory alternatives - not substantive - only procedural
NEPA was not supposed to be a suggestion, was supposed to have substantial impact. Instead has become a procedural hurdle
JUDICIAL REVIEW - ADMINISTRATIVE OVERSIGHT
A. Introduction
Marbury v. Madison – 1793 – Idea of Judicial Review
Limits – Case or Controversy
Standing; Mootness; Ripeness
Prudential Concerns – Separation of Powers; Federalism
Application to Government Administration
Authority to Review
Enforceable Duty
Particular Person – Claimant or Impacted
Background - Courts
Review Mostly in Court of Appeals – Administrative Record
Biggest Exception – Social Security – Denials and Terminations - Fact Finding
Jurisdiction - Specific Statutes or 28 U.S.C. § 1331- jurisdiction - all civil actions “arising under” Constitution, laws or Treaties
APA not give jurisdiction
APA Elements – Once is Jurisdiction
a. agency action
b. reviewable by statute
c. final agency action with no other adequate remedy
Who
suffering legal wrong or
adversely affected or aggrieved within meaning of statute
“Presumption of Judicial Review”
§ 701 (a) - judicial review provisions apply except if
(1) statute precludes judicial review
(2) action committed by law to agency discretion
B. Agency Action
not apply to Congress; President; Courts; D.C.Government
must be discrete and identifiable agency action
Norton v. Southern Utah Wilderness Alliance (2004) – Scalia
off-road vehicles – “Non-Impairment” Mandate & Multiple Use
Agency “inaction” - APA - needs to be final agency action- can include failure to act [§551 (13)] ) - and reviewing court can compel action unlawfully withheld or unreasonably delayed” [§706(1)]
Failure to act - not same as denial - is when there is agency decision to not act - and relates to a “ministerial or non-discretionary act” - so only compel if discrete agency action required to take
Here BLM - great discretion - APA’s purpose - protect agencies from undue judicial interference in discretionary decisions
takeaways:
agency action is discrete specific agency action not a plan
always look to statute governing agency to see if it modifies APA terms
Have to trust theory of this statute/ and further trust agency
“Discrete” action - not plans, not general guidelines - and not conduct
Unreasonable Delay - Courts loath to compel action
Refusal to Enforce - different than refusal to adopt a rule - -Mass. V. EPA - greenhouse gases case - was discrete action and told to consider - but denied request – ? Change decision here if request to regulate and deny
C. Statutory Preclusion of Review
Statutory Preclusion – only if “clear and convincing evidence of contrary legislative intent”
Even if “clear” –Courts seek to limit impact – narrow interpretation
Not to Constitutional claims – habeas corpus – due process
Specific Statute Bar Review – not mean automatically bar review under other statutes [ VA and Disabilities Act]
Agency can not bar review by regulation – has to be by statute
D. Agency Discretion
General Principles
§701(a) - exceptions to judicial review - committed to agency discretion by law - “no law to apply”
Webster v. Doe (1988) – CIA fire employee when admits is gay
National Security Act- Director can fire “whenever he shall deem necessary or advisable” - Total discretion - Can still raise Constitutional issues
Department of Commerce v. New York (2019)
Census – to Secretary of Commerce- change rules [apply older rule] – ask about citizenship – not “unbounded” delegation/commitment to agency discretion - interpret limitations on review narrowly – not national security issue like Webster
Are “meaningful standards to apply” – so subject to judicial review
Concurrence/Dissent – Alito – not “stick nose into agency actions here – was “unfettered discretion”
if court looks at statute and sees there is no law to apply, agency has total discretion
if there is law to apply ( standards to make determination) then courts go down the 706 reasoning and review .
Prosecutorial Discretion
Criminal Cases – almost total
Agencies – Courts mostly deferential unless “in clear violation of governing statute or clearly in excess of statutory authority” - so exception is statute says “shall”
Texas v. U.S. [5th Cir. 2015] – Aff’d Equally Divided Court
Obama Order – not deport or exclude until background check and then case by case - Be “lawfully present”
New status gives rights under state law – driver’s license and unemployment - as grants rights – is reviewable
Negotiated Settlements [like plea bargaining] – discretion
But Mach Mining (2015) – mandate to try mediation –- reviewable - must make attempts - report if not successful
In the context of criminal law enforcement, prosecutors exercise wide discretion whether to investigate allegations of criminal violations and whether to bring charges against those whom they believe to have committed crimes. A decision not to investigate or bring charges is traditionally considered immune from judicial review.
if you can show that dec. not to prosecute has other impacts---> court will likely say not prosecutorial discretion (Oilfield has to pay for spill or gov doesn't make them pay and also has to)
Resource Allocation
almost total discretion unless specific mandate
Lincoln v. Vigil (1993) – general appropriation for Indian Health Services – can close Indian Children’s Health Services sites and redirect as see fit
E. Standing
Traditional standing issues-
“Cases or controversies” - direct injury [causation]
Judge made rules - “prudential principles” - generalized grievances,” third party
Legislative Limits - who can sue determined by statute - within scope - duty set by statute covers this plaintiff –
Ordinary standing - injury means who has “legal interest” – But Congress can eliminate the “legal wrong” issue - “any person aggrieved” — idea of “private attorneys general”
Now Administrative Procedure Act - suffering “legal wrong” because of agency action - OR - who is “adversely affected or aggrieved by agency within meaning of the a relevant statute” is entitled to judicial relief
Test is zone of interests
INJURY, CAUSATION, REDRESSABILITY
A plaintiff has standing to challenge an agency ruling when the challenged action has caused him injury in fact and the interest sought to be protected is arguably within the zone of interests to be protected by the statute or constitutional guarantee in question.
Associated Data Processing v. Camp (1970) [Douglas] – Major – Major Case - who can sue Comptroller - that allowed data processing services to be sold by banks
Was economic injury – nominal damages enough [Uzuegbunum (2021)]
Then is this “arguably within the zone of interests to be protected by either statute or Constitution - “aggrieved person within the meaning of the relevant statute”
Statute and statutory history - competitor was within zone
Zone of Interests – “arguably” – not need explicit Congressional intent
Economic Interest almost always grant standing
– Not complain about rule that to run for judge must be of political party – not show likely to run for judge in immediate future
no generalized grievance
Transunion (2021) – credit files had false statement – not have concrete injury – unless information given to third party in credit report
Causation [tax change and indigents or schools] [Obama Care – no penalty]
Redressability [likely and not speculative]
Injury – now imminence
Associational [Interest Same] and Third Party Standing [Need Reason; Disfavored]
No taxpayer standing - except for limited Establishment Clause [specific funding for religious purposes]
Cases – often based on end results desired –
Lujan v. Defenders of Wildlife (1992) [Endangered Species in Egypt and Sri Lanka]
Reject – lack of opportunity to view – not show would in fact view; reject “ecosystem nexus”; reject “animal nexus”; reject “vocational nexus”; reject “procedural nexus”; reject idea that Other Agency follow Advice [Redressability]
MHB - ? Foreign policy – prudential concerns
Compare – Massachusetts v. EPA (2007) – global warming [5 to4]
Impact even if small and also one step at a time
F. Timing - Generally Ripeness/Mootness
APA § 704 - restricts judicial review to “final agency action for which there is no other adequate remedy in a court”
so - includes ripeness & finality - action agency must take and also exhaustion of remedies - actions petitioner must take.
Ripeness - immediate and direct adverse impact
Old Rule – needed to wait for enforcement action
Now – “immediate burden” or otherwise “aggrieved”
Abbott Laboratories v. Gardner (1967)- Harlan
New FDA Rule - must put “established name” at least ½ as prominently as brand name
Ripeness - avoid premature adjudication - protect agencies from judicial interference until an administrative decision has been formalized and its effects felt
Here - purely legal issue - interpretation of statute - so allow
Case by Case
“Purely Legal” – vs Need for “Factual Development”
Hardship - weighing and usually sympathetic to economic/cost argument
What about agency non-acquiescence – circuit by circuit
Declaratory Judgement --Act - Is discretionary - and needs “actual Controversy”
“On its face” - ? Really are challenges subject to “ripeness” issue
Benefits - rule itself not enough for ripeness - must seek and be denied to go to court - no real hardship until not get - denied benefit
Timing and Enforcement
Congress can allow pre-enforcement review - 1943 - War Time Price Control Regulations - but Courts interpret narrowly
APA §703 - preserves judicial action on enforcement - unless a “prior, adequate, exclusive opportunity for judicial review is provided by law”
APA §559 - future legislation not impact Chapter 7 Enforcement Actions- unless does so expressly – but court have interpreted to allow equity powers to waive statutory or regulatory deadlines
Smith v. Berryhill (2019) – miss deadline; Administrative Appeals Agency – dismiss – despite statute seem to bar judicial review - – Supreme Court found “final agency action” and reviewable – due process interpretation
Finality – Tied to Exhaustion – Salinas – consummation of agency’s decision making process – with consequences [opening of benefits determinaton] 5 to 4 [Roberts with majority
Letter Rulings - -Most courts - rulings have adverse consequences and are final
G. Exhaustion of Remedies
Pre- APA - Myers v. Bethlehem Shipbuilding (1938) - Brandeis - not entitled to judicial relief until prescribed administrative remedy has been exhausted -
Futility exception - why go through if know will lose - lower courts disfavor
Exhaustion doctrine is based on Congress delegation to agency and so deference to Congress – to promote proper use of agency discretionary power - or expertise
Agency has a right to correct its own mistake
But exceptions
Undue prejudice to eventual court action if allow exhaustion [ time frame]
Doubt as to whether agency has power to grant effective relief (not competent to decide constitutionality of a statute)
Agency biased or predetermined issue
Multiple statutes govern situation – possibility [not probability] that exhaustion requirement in one statute preclude relief under another statute
§705. relief pending review
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
Exhaustion Under APA - Not require exhaustion prior to APA judicial
review unless relevant statute or agency rules mandate it
[Social Security Act interpreted to give broader discretion to not require issue exhaustion – can raise new issue on appeal - ]
.
Exhaustion can be used to destroy legal claims –
once not exhaust – may be barred
McGee (1971) - conscientious objector – not appeal Selective Service denial – jailed - S.Ct. - not challenge now - should exhausted selective service processes
cf - McKart (1969) - could challenge if issue a purely legal one - interpretation of statute
Post-Enforcement Review
PDR Network v. Carlton (2019) - claim sent unsolicited fax ads vs FCC “Interpretive Rule” – remand by Supreme Court as to whether statute bars appeal because of timeliness – Kavanaugh – concurrence [for 4 Justices] – if statute has pre-enforcement review – could preclude any post-enforcement review in enforcement action – but if silent - ? Preclude or allow later review in enforcement action – should allow – presumption of judicial review -
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS
A. Overview
Administrative Procedure Act § 10 [5 USC §§ 701-706]
●to decide all relevant questions of law
●Interpret Constitutional and statutory provisions
●determine meaning or applicability of the terms of agency action
Issue is often - how much deference to administrative agency and when and how
10(e) - 706 - courts
BIG FIGHT
how much authority will courts give agencies to determine statutes when statutes are vague
how much authority will courts give agencies to determine its own regulations , even when they change their mind
B. Standards of Review
Shall hold agency action unlawful - if
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
( C ) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
Overton Park v Volpe
When reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider:
(1) whether the agency acted within the scope of its authority;
(2) whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and
(3) whether the agency’s action met the necessary procedural requirements.
For courts review purposes, not required to have written records or formal findings. But Court will look at whole administrative record and review it to see whether it is arbitrary and capricious.
Record and Reasons
§706 - review whole record or those parts relied on by the parties
how develop a record - in Overton no requirement of record - -
How review without it - Detailed explanation - no “post-hoc” rationalizations
Different than review of lower court decisions – full transcript with exhibits
Reliance/Need for Record
1940’s – who in agency can review and decide - wide discretion – not need detailed explanation -
U.S. v. Morgan (1941) –not going to look into current word/mind/speech of officers making admin decisions, instead look at entire file unless statute requires more
Camp v. Pitts (1973) – failure to explain adequately does not require a de novo hearing, just a remand for more information ; supreme court agrees with morgan cases
Hard look doctrine-- agency must take a hard look at their decisions ; court must also take a hard look at the agencies decisions
if they like what agency is doing-- wont take as hard of a look and convince appeal courts to do same
if they do not like what agency is doing - will take very hard look
C. Arbitrary and Capricious Test
§ 706 (2)(a)
“To the extent necessary to the decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--
(2) hold unlawful and set aside agency action, findings, and conclusions found to be–
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
Though different words - 4 things - courts - focus on “arbitrary”
applies to any agency action - but really only use for informal rule making and informal adjudications
“substantial evidence” test used for others
At one time - highly deferential - - by late 1960's less deference - skepticism of expertise – “captured by regulated” or “bureaucratic incompetence and venality” – “hard look doctrine”
Now – move to more deferential again - ? Still true with Roberts Court
Motor Vehicle Manufacturers Assn v. State Farm (1983) [5 to 4][White]
Rescission of rule as to passive restraints - SCt - test is in APA - for informal rule-making - applies not just to initial rule but also to rescission
Not substitute its judgement for agency - - but still need a “rational connection between facts and choice made”
Here - arbitrary - if agency “change its course must supply a reasoned analysis”
Department of Commerce v. New York
An agency decision is arbitrary and capricious if it rests on a pretextual basis.
Changes in “policy” – broad discretion but need for bases
FCC v. Fox (2009) – Scalia – 5 to 4 – Indecent Language Ban – Single Event -
Only need show is good reason for policy change and not need to show that change is better
Encino Motorcars v. Navarro (2016) - service advisers entitled to overtime under FLSA
Agencies need to give reasoned explanation for change in policy- quoting Fox – but giving of reasons especially important when is reliance
FCC v Prometheus sup pg 28 -
Court applies arb. and capricious standard --- moving to more allowance of agency action when pro-business is involved
Dept of Homeland Security v. Regents (2020) [Roberts]
DACA – 2012 - defer removal of “unauthorized aliens” [childhood arrivals] – also able to get benefits – work authorization and benefits
DAPA – 2014 deferral of parents [4.3 million]
5th Circuit declare unconstitutional [“take care clause”] and vs notice and comment of APA – then 4 to 4 – affirmed by SCt
2017 – AG said DACA memo – unconstitutional; then Acting DHS Secretary – rescind DPA and then DACA – Dist. Ct ruling; AG decision and vs APA; Later fuller justification by permanent DHS Secretary
Remanded for Full Consideration – Rescission was arbitrary and capricious
Can you force an administrative agency to implement a law ?
prosecutors have discretion as to who they prosecute--> agencies have same prosecutorial discretion.
Exercise of Prosecutorial Discretion – case by case – Not total non-enforcement policy; no judiciary review
Now Program terminated by Acting Secretary of DHS – this is “agency action “ when it happens – record before it – bases inadequate and so remand back [not consider later Secretary – not part of record before Court
Obligation to consider and comment on all issues and options
Forbearance – even in Acting Secretary’s decision – not just AG’s statements that was illegal [that is binding] – but policy alternatives
Not consider separation of removal from benefits
Not consider reliance interests
Decision Not to Act - Massachusetts v. EPA (2007) - greenhouse emissions – specific statutory command - needs specific findings here and not given – so had to act
D. Review of Law
Introduction
APA §706 - Courts decide all relevant questions of law and interpret constitutional and statutory provisions
But what about how interpret - early years- Courts claim exclusive control over interpretation - - consistent with non-delegation doctrine- then
New Deal – Change - NLRB v. Hearst (1944) - newsboys - were employees- allow agency [NLRB] to define
Skidmore v Swift (1944) - private firefighters sue for overtime –
FLSA - Give at least some modest degree of deference to Administrator’s interpretation
Then, MOVED TO CHEVRION
Supreme court reverses and says that administrations conclusions should've been taken into account as there was no delegation of deference in the statute
Power of persuasion not power to control; ONLY WHEN NO DELEGATION
“Chevron” Doctrine
Reagan Administration - EPA – allow use of “bubble” for dirty [non-attainment]zones and cleaner [Prevention of Significant Deterioration] Zones – definition of “stationary source”
S.Ct. - Two questions —
1.Has Congress spoken directly to the issue - if unambiguous must follow – or vs APA - If not – then vs APA as “arbitrary, capricious or manifestly contrary to statute
2.If ambiguous or silent – is agency’s answer if based on “permissible construction” - is delegation and give “controlling weight” unless exceptional circumstances
Once open to interpretation – only issue is if agency’s interpretation – “reasonable” [reasonable policy choice] – here it is
Even though change because of new Administration – fact that periodically change position - not mean that cannot defer to present interpretation
Policy - not for courts - and this is a “reasonable accommodation” - and Courts can rely on “incumbent administration’s views of wise policy to inform judgments”
Step One - Has Congress Directly Spoken - then ? of Law - no deference
apply rules of statutory construction - to see if Congress spoken
MCI v. AT&T (1994) - Scalia – FCC exempt smaller communication carriers from filing - statute – power to modify not exempt – no deference
Babbitt v. Sweet Home Chapter (1995) – Stevens – definition of “take” – ESA – statute ambiguous - so covering indirect - habitat – “permissible interpretation”
Dissent - Scalia - +2 – statute clear – “take” means “take”
Chevron language - “traditional modes of statutory construction” –
Categories of step one interpretations.
In his article, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should be Overruled, 42 Conn. L. Rev. 779, 817-822 (2010), Professor Beermann identifies four methods of interpretation used by the Court at step one. He labels them
“plain meaning Chevron,” plain meaning of statute and
“traditional tools Chevron,” traditional tools of statutory interpretation
“original directly spoken Chevron,” actual language of statute
“extraordinary cases Chevron.” extraordinary cases aka court doesn't want to go to step 2 cases
Are there “extraordinary cases” - ?
FDA v. Brown & Williamson (2000) [5 to 4 - O’Connor swing] – is nicotine as drug –
As to whether statute clear – looks to whole history of tobacco regulation - Congress repeatedly not grant FDA authority to regulate
May be “extraordinary cases” where though direct language may be ambiguous - context make clear not defer to agency
Massachusetts v. EPA (2007) - ? force EPA to regulate greenhouse gases - arbitrary and capricious that not do so - -
EPA says look at history of climate change [like tobacco] legislation - unique and so should not regulate
Court - looks at statute – EPA obligation to regulate - - post-enactment actions and deliberations by congress - even if relevant - not clear intent
King v. Burwell - 2015 - tax subsidies for low income under Affordable Care Act- statute subsidies for health insurance exchanges - - IRS interpret to apply to both state and federal exchanges – Not reach step Two – Court’s own statutory interpretation agree
Step Two - “Permissible” vs. “Reasonable Construction”
Would seem - if decide in step one - not a question of statutory interpretation - then hasn’t it already decided step 2 - is permissible?
Utility Air Regulatory Group v. EPA (2014) [Scalia] - Rules by EPA as to Greenhouse gas pollution from stationary sources [not mobile - cars]
S.Ct - “air pollutant can have different meanings in different parts of statute –- look at context – to apply to stationary sources - inconsistent with statutory scheme - be too sweeping and “capricious”
So must be “reasonable construction” -interpret to be compatible with statutory scheme - -
What is “reasonable construction” -
Household Credit (2004) - Truth in Lending and Federal Reserve Regtn Z - - statute silent; delegated to Federal Reserve - here rational and reasonable
Cuozzo Speed Technologies (2016) - Patent Office Rule - gap in law; and Patent Office given job of filling in gaps - express delegation - so “reasonable exercise” of rule-making
“Reasonable Construction” – may be same as saying is arbitrary and capricious”
Deference if agency change its interpretation –
Yes – if both interpretations reasonable - yes - Chevron but not after interpretations already upheld by Supreme Court and reliance
“Once we have determined a statute’s clear meaning, we adhere to that interpretation under stare decisis and we adjust a later agency interpretation against prior determination [National Cable][MHB - assumes Step One]
Courts split on just impact of age and reliance and deference
Chevron - Step Zero - “Non-Chevron case” [Not a Rule or Regulation] - go back to older Skidmore -pre-Chevron test [Just consider – not defer]
United States v. Mead (2001)- Imports– Day Planners re-classification
Congress can give delegated power to agency - but by regulation/rule - - Congress not intend deference to these kind of non-rules
Policy statements, agency manuals, enforcement guidelines- not binding and no deference required –
Though judges not bound - are experts and can be useful and persuasive - Skidmore - “totality of the circumstances” rule –
Encino (2016) - dealership employees - overtime - when agency not follow procedures and come up with ruling or interpretation - procedurally defective [no reasons given] - no deference - - remand to court to construe statute without deference
deference can be impacted by reliance
Step 0 -- Agency was never given power in the first place
United States v Mead
Even if an agency's interpretation of a statute is not entitled to deference under Chevron, it may still be entitled to deference under Skidmore according to the persuasiveness of the interpretation.
If no deference given under Chevron step 0 because they had no power in the first place, experience and expertise will be considered under Skidmore
WHEN NO DELEGATION--> SKIDMORE
WHEN DELEGATION--> CHEVRON
Nat cable
If supreme court makes statement on interpretation before agency then it rules
If lower court makes statement on interpretation before agency then it is subject to supreme court determination.
A court's prior judicial construction of a statute controls over an administrative agency's construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.
“Chevron” Steps
1. has congress/statute spoken directly on issue? if they have it never goes to the agency .if ambiguous go to step 2
2. Once agency has responsibility, have they acted reasonably?
3. If the agency is acting reasonably in their interpretation, is it arbitrary and capricious ?
Jurisdictional Statutes
City of Arlington v FCC (2013) – Scalia - Telecommunications Act of 1995 - Statute ambiguous and reject that provisions bar FCC action – since stayed within statutory authority – can decide it has authority
Dissent - Roberts [with Kennedy and Alito] - no deference when agency decides on its on that has authority
Here general authority and savings clause – power to local governments and no right to have FCC decide
MHB - like pre-emption issue and savings clause
Statute is unclear as to which agency has responsibility between multiple; or unclear between state and federal; question of JURISDICTION ---> 3 ways to solve
who got there first?
memorandum of understanding (mutual agreement between parties)
office and management and budget decides jurisdictional fights
Multiple agency - Who gets deference or no deference at all
Bowles v. Seminole Rock (1945) - - Seminole Rock Rule- look to statute see what agency has dominant authority for this type of action – accept that agency’s
What about authority between Agency and Reviewing Court As to Agency’s Own Rule
Decker v. Northwest Environmental Defense Center (2013) - do loggers need permit before logging when roads runoff discharged into navigable waters – EPA interprets authority/own regulation to not require here -
Auer deference - As a general rule - defer to agency’s own interpretation of own rule - unless plainly erroneous or inconsistent with regulation - if interpretation “reasonable - then accept
Now – Kisor v. Wilkie (2019)
Board of Veteran Appeals - allow retroactive payments only when official records not considered before and not if change in what is disability [here change that Vet is PTSD] – Lower Courts – Auer deference – remanded
Seems to reaffirm Auer/Seminole – but really new standards [reject that vs APA and Separation of Powers]
But now says three part test
(1) Must be ambiguous - use traditional tools of interpretation [like it does with a statute]
(2) if ambiguous - interpretation must be “reasonable”
(3) character and context entitles interpretation to controlling weight
a. interpretation by agency - official and authoritative;
b. in area of expertise
c. must reflect “fair and considered judgement”
E. “Substantial Evidence” Test
Once you have an agency regulation and an enforcement mechanisim:
do you have enough evidence to apply law? standard of review question-- most say substantial evidence
Evidence = Substantial Evidence according to supreme court
Court defined “substantial evidence” as: “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
in order to be considered “substantial,” evidence “must do more than create a suspicion of the existence of a fact to be established. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.”
Formal Adjudication - APA §706 (2)(E) - formal hearings - substantial evidence” - like “clearly erroneous” standard for appellate courts as to facts
Courts struggle - how much is “substantial” –
must look to “whole record”
Now with ALJ’s – even more acceptance of deferential test – fact-finding as if trial court – weight and credibility
Informal Rulemaking
Not in APA - but Congress in some statutes provided substantial evidence on record as a whole test for informal rule-making [OSHA]
Industrial Union v. API (1980) [Stevens - plus concurrences - 4 dissents - Marshall with Brennan, White, Blackmun]
OSHA process – Benzene – detailed steps -
Statute - - Needs “sufficient basis”
Supreme Court - - burden on agency to show by substantial evidence - significant risk of material health impairment - here not meet that burden of proof - inadequate findings - and rejection of industry witnesses in total - Here improperly put burden on industry to prove safe level - that is agencies job
Dissents - “substantial evidence” - means tradition presumption of validity - not substitute its judgement [or shift burden of proof]
F. Remedies for Unlawful Action
If Court decide agency makes legal error - vacate for further proceedings
Only in a few cases – overturn and not not remand - if “crystal clear” not be remedied by agency
Or if exceptional circumstances - Social Security Disability Case - length of time this has taken - not remand - order to pay up
POLICY-MAKING INSTRUMENTS
A. Introduction
Alternatives for policy-making
Rules – Informal; Formal
Enforcement Decisions
Adjudications
Informal Guidance
Concept is that agencies – both “quasi-legislative” and “quasi-judicial”
B. Legal Constraints
Federal Government – Bound by 5th Amendment Procedural Due Process
Administrative Agencies – creature of statute – bound by statute as to process – Enabling Act & APA
Londoner v Denver
A city must provide notice and an opportunity for a hearing before assessing a tax on landowners for local improvements that specifically benefit their land.
specifc-- Londoner -- hearing
Bi Metallic
Where an agency rule applies to a large number of people, the Due Process Clause does not require that each person have an opportunity to be heard regarding the rule’s adoption.
general -- Bi Metallic --- no hearing
Legislative Facts - facts that apply to the rules or regulations
Adjudicative Facts- facts that apply to a particular case
C. Policy by Rule
FCC – standards for license availability by rule
FTC – General Rules of Business Conduct – Implied from power to adjudicate
NLRB – adjudications to give “incremental guidance;”
Social Security Administration – “Bright Line Rules – Rule-making –grid rule formula/guidelines
D. Rule by Order After Administrative Adjudication
How far can an agency go to establish a rule by a case by case adjudication – compare to debate about U.S. Supreme Court decision-making – Miranda; Roe v. Wade; Reynolds v. Sims
Constitutional Interpretation vs. Chevron Statutory Interpretation
Pre-APA
SEC v. Chenery (S.Ct. 1947) – allow agency to set prospective rules in cases – may be that rule preferred but not required – “case by case evolution of statutory standards” [here rules as to reorganization and surrender of stock during process]
APA
Excelsior Underwear (1966) – announce prospective rule of disclosure - OK
NLRB v. Wyman- Gordon (S.Ct. 1969) – disclosure rule from Excelsior – plurality (4) - not approve as rule but can be upheld as “reasonable” part of providing for this election be fait
Still is preference for rule-making
Problem of Retroactivity
Rebuttable presumption that agencies not have authority to make retroactive rules by decisions - but can be overcome
Agency by decision can’t make law or rule by decision as to a statute not part of their domain - [FTC not interpret and apply UCC]
E. Rule by Informal Guidance
Informal Guidance
Agencies like to avoid rule-making – try to establish policy in guidelines, manuals, press releases, content of forms
Basic policy – ok if disclosure and known and consistent and fair
Morton v. Ruiz (S.Ct 1974) – Assistance to Indians – “off-reservation barred in Manual – classifications if reasonable ok – but must be generally known – not in internal operations manual
APA exempts “interpretative rules” and general statements from rule-making – but can’t rely on unpublished material
Skepticism by courts- often say if use - need notice and comment - ifs “significantly broadened underlying regulations” - gives undue advantage to agency - - and also limits lawmaking from judicial review
Jaw-boning – nudge with warning if not do – be more formal and visible process
Agencies should follow own Procedural Rules
Courts – “justified expectation” – Courts can require showing of prejudice or say is “harmless” error”
Apply more stringently if involve fundamental statutory or constitutional rights
What about bad advice from agency representatives
Hansen (1981) – Social Security advice that not eligible – was – and now seeks retroactive – not so “egregious” as to justify going against statutory language
Still some courts use doctrine of “detrimental reliance” to allow
But bottom line rule – weight of authority – agency policies for internal guidance not give rights – even if showing of prejudice – based on Hansen
LEGISLATIVE CONTROL
A. Delegation
History -
At first - Field v. Clark - 1892 - Congress cannot delegate Legislative Power
1813 - foreign policy - power of President to lift embargos; then 1892 - tariffs
New Deal Cases
Schechter - 1935 - - unconstitutional delegation - to private group; sets own standards with little guidance; wide discretion - unfettered
Switch in Time – Not allow changes to delegation
Broad interpretation – “intelligible standards”
Yakus - 1944- price control - “fair and reasonable” - is good enough
Some cases – question how broad – but still not go back to non-delegation doctrine –
Gundy v. United States (2019)
Signal that non-delegation doctrine be reconsidered
Current- in order to delegate must have "intelligible principles"
The Court has repeatedly upheld statutory delegations as constitutional if Congress provided intelligible guidance directing how the delegee must perform. Nondelegation inquiries begin with interpreting the statute to see if Congress provided an intelligible guiding principle. If so, the inquiry ends there.
Issue was ability of Attorney General to determine by rule if apply to registration of sex offenders for crimes before Registration Act
Kagan – for 4 Justices – applied “intelligible princaple idea and easily fit
Gorsuch [with Roberts and Thomas] – was unconstitutional delegation
Framers – arduous process for legislation – two house and so need ordinarily a super-majority for accountability
Want to return to pre-1928 Standards – Congress – policy; then details after executive fact-finding; and can assign non-legislative responsibilities
Intelligible princaple doctrine never meant to be replacement for traditional separation of powers concepts
Alito – willing to reconsider test in suitable case
delegation standard-- any intelligible standard --> gundy-->possibility of moving to different standard
B. Legislative Veto
Give $7.00 - or give $10 and ask for $3 back - ? Difference
Immigration and Naturalization Service v. Chadha – 1983
Deportation – one house veto – Unconstitutional
Fact that convenient or useful - not answer whether violate separation of powers
Violates - “Presentment” Clause -all laws must go to President for veto; and also “Bicameralism” - must go to both
Later applied to two house veto; administrative agency vetoes;
1996 Statute – “Sit and Wait” - submit major rule - Congress has time to consider and nullify by joint resolution of disapproval - still needs President’s signature
Another vehicle - sunset provisions for laws - agency justify existence at times [now Consumer Pro Product Safety Commission]
Attorney general has administrative power to overturn deportation, on condition that legislature can overturn that overturning
C. Appropriations & Line-Item Veto
Appropriations- setting budget for specific agencies with conditions. seen as legislation which needs to have enough votes
Congress uses riders - reduce budget [IRS]
Lump sum and non-specific - so more discretions to political leaders of agency; but then - riders - conditions or not spend money on X or Y
Robertson - 1992 - - logging regulations - challenges as vs Migratory Bird Act - win in lower court – Congress pass rider to appropriations bill as to regulation [authorizing it] – Upheld
But - TVA v. Hill - endangered species - snail darter - rider to allow activity TVA dam – no - need explicit legislation
Line item veto act--> ability to remove item from bill and make them severable from the bill itself.
Court finds line item veto unconstitutional**
Line item veto act - effective on January 1, 1997.
CLINTON vs CITY OF NEW YORK (1998) [Stephens] – unconstitutional
Violates presentment clause, Article 1, Section VII, Clause 2, only way he can get rid of a bill is to veto it; here return after bill becomes law.
Method for President - approve or veto in toto.
D. Oversight
Congressional Budget and Impoundment Act - limits power to impound funds - and also establish Congressional Budget Office
Oversight - Very powerful - Constituency Service and - hearings; investigations; policy
Appointments – “Officers” and [small o] “officers” [inferior officers]
Limits on Oversight by Claims of Executive Privilege – Skepticism by Supreme Court as to power of Congress – need “legislative purpose” [Mazurs (2020)]
ADJUDICATION
A. Introduction
Premise is Judicial Model of Adjudication
“Authoritative resolution of factual and legal disputes”
General policy to specific situations - particular party or action
Takes evidence; hears arguments, renders a disposition - binding unless appeal
B. Agency Power to Adjudicate
Until 20th Century – only courts could enforce specific penalties –
Still true in many places - but not in federal system
Congress - since ICC and FTC – delegate to agencies - rule making; prosecution; and adjudication though always with some judicial review
Premise is still “public rights” - between Government and private persons subject to authority of government – not to private vs private
Even in public rights - courts ultimately decide “jurisdictional facts” and questions of law
Northern Pipeline (1982) – Supreme Court knock down parts of Bankruptcy Act – as gave non-Article III power to decide contract claims
Then less rigid – Union Carbide (1985) – pesticides – Supreme Court question pubic vs private distinction – allow mandatory arbitration
Commodity Futures v. Schor (1986) – Reparations sought - Agency decide state law counterclaim - Congress authorize – here was waiver – agreed to resolve matter – and not jurisdictional defect
Commodity Futures Trading Test –
No formalistic and unbending rule as to what must be tried in court - factors
1) “essential attributes of judicial power reserved to Article III courts
(2) non-Article III forum not able to exercise the range of jurisdiction and powers normally vested in Article III court
(3) origins and importance of rights to be adjudicated; and
(4) concerns that led Congress to depart from requirements of Article III
Bounce Back
Stern v. Marshall (2011) [Anne Nicole Smith (26) and Billionaire Marshall (89) – bankruptcy by Smith; part was defamation vs Smith and then countersuit for “tortious interference [by step son] – Bankruptcy Court found for Smith both as to defamation and tort
C.J. Roberts – no authority over common law claims – not part of statutory scheme [4 Justices dissent would allow under Schor
Wellness v. Sharif (2015) – Bankruptcy – allow state claim if litigant consented [5 to 4]
And if claim vs state and not private party – still have 11th Amendment “immunity” [ Federal Maritime vs So. Carolina Ports (2002)
C. Due Process
From 5th - Amendment – life, liberty or property – now to legitimate claim of entitlement – from statutes
Goldberg v. Kelly (1970)
“statutory entitlement” – welfare benefits and pre termination hearing
Once in – full panoply of due process
Now - For any due process right – test is now a balancing –
Matthews v. Eldridge (1975) [No prior hearing for denial of social security benefits]
Look to each of procedural protections and weigh the following factors:
1. individual and government interest affected;
2. risk of erroneous action;
3. value of additional safeguards;
4. fiscal and administrative burdens
What is “Property Right” – “legitimate claim of entitlement”
Board of Regents v. Roth (1972) –Issue is expectation – so “employee at will” – no “legitimate claim” vs Perry v. Sunderman (1972) – factual issue – “de facto tenure”
Cleveland Board of Education v. Louderemill (1985) - state law create property right – not condition by saying give up due process
Liberty Interest - Imprisonment/Confinement obvious –
but no right of wife to be with husband who denied entry to U.S. [terrorist] connections] – vs Iraq/Afghanistan/Guantanamo cases – rights even for non-citizen
Not to prison transfers or discipline; yes to move to “Ohio Supermax”; yes revocation of parole or probation [maybe to denial of parole if state law grant]
Reputation – Paul v Davis (1976) – shoplifter’s flyers – not violation of due process
Megan’s Law – registration of sex offender – ok under federal law – even if retroactive – but some states say no
O’Bannon (1980) – termination of funds to nursing home – violations – Medicaid patients no right – only right to “qualified providers”
Castle Rock (2005) – mandatory enforcement of restraining order” – not create liberty or property rights – enforcement; arrests; negligent or reckless acts
Neutral Decision-maker
Assume Administrator & ALJ be neutral
Often issue – is direct interest – financial – easiest to show not neutral – mayor keep fines
But cf – Marshall v Jerrico (1980) – Secretary of Labor set FLSA fines – agency keeps penalty money – delegates to “independent “ ALJ - small impact on budget and independent ALJ’s – so ok
Issue especially relevant to licensing issues
Gibson v. Berryhill (1973) – Optometric Association file charges vs optometrist who work with optician; also had filed suit to stop Company of Opticians – bad – not neutral – “pecuniary interest”
Withrow v. Larkin (S.Ct. 1975) - Wisconsin Medical Licensing Board complaints against Larkin - Dr who perform abortions - notified D.A.
Board members both investigate and decide outcome –
No risk of bias as being both investigator and adjudicator - is presumption of fairness - adversary hearing -different bases and
Cinderella Career v. FTC (D.C. Cir. 1970) – FTC Chair involved in decision after extensive press releases and speeches – vs “charm schools” – danger of unfairness
Test- whether a disinterested observer may conclude that the agency has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it
Compare – National Advertisers (D.C. 1979) – Outspoken FTC Chair involved in “rule-making” – rules as to ads and kidvid – OK – rule making vs adjudications
Ethical rules - federal judges supposed to recuse themselves if “impartiality might reasonably be questioned
Even friendship with litigant not enough - Cheney v. District Court (US 2004) - Scirica not recuse - eve though on hunting trip
What about political contributions and judges - can be extremes - Caperton v. Massey Coal (2009) [4 judges dissent - Scalia; Roberts; Thomas; Alito]
D. Statutory Requirements
APA - § 554, 556, 557:
1.Notice
2.If oral evidentiary hearing - ALJ, agency head, or other members of body - and can request disqualification for bias
3.No ex parte by interested persons
4.Proponent of order has burden of proof
5.Right to present evidence and cross
6.Orders based on “whole record” or cited parts with additions and supported by “Reliable, probative and substantial evidence”
7.Transcript is record and be available
8.Findings and conclusions and reasons of material facts, law or discretion
Special situations –
Claims for money or benefits or licenses - can be in written form and no oral hearing or cross
Special statutory procedures take precedence over APA
Formal Hearing must be “triggering” – from statute and disfavored interpretation
S.Ct. – Rule-making - formal hearing only if statute says “hearing on the record
Tighter for adjudications – Seacoast Anti-Pollution League v. Costle (1st Cir. 1978) - look to intent – so say “hearing” here mean on the record
Now Chevron – look to agency as to interpretation
Agencies can add more requirements, but there cannot be less than these for adjudicative proceedings
Triggering APA's formal adjudication requirements:
In other words, the APA’s formal adjudication requirements are triggered only if an agency’s enabling statute requires them. If APA formal adjudication is not triggered by an agency’s enabling statute, the agency is generally free to proceed through informal adjudication, an amorphous category of agency action with far fewer procedural constraints
Issue is – how “formal” does “formal adjudication” have to be – impacted by Chevron
Discovery and Cross-examination
Citizens Awareness Network v. United States (1st Cir. 2004)
Court allows NRC to lessen formality in hearing processes
Limits discovery and cross-examination; not “on the record”
APA – no right to discovery or cross – only mandated if special statutory rule or fairness – Need for “procedural flexibility”
On the Record
Richardson v. Perales (S.Ct. 1971) Social Security Disability – no right to cross-examine written reports - - were “routine unbiased reports by examining doctor reliability
Evidence
APA 556(d) - exclude irrelevant, immaterial or unduly repetitious evidence” and any documentary or oral evidence” may be allowed - No hearsay rules apply
Official Notice
Broader discretion to take “official notice” of facts not in record [556(e)] – Party does have right to show contrary –
But ordinarily accept expertise of administrators and ALJ’s –
Right to Rebut [Part of Official Notice Issue] -Really due process issue
Southern California Edison v FERC (D.C. Cir. 2013) – rate of return on equity– Company right to present other evidence
Right of Asylum Victims to Challenge that no risk
Burden of Proof
burden on claimants
Greenwich Collieries (1994) – black lung cases – burden of proof - on claimant - both as to production and persuasion
Statement of Findings
APA 557 [c] - - formal adjudication - findings and conclusions and reasons and basis on all material issues of fact, law, or discretion presented on the record and the appropriate rule, order, sanction, relief or denial thereof – to allow for judicial review
Armstrong v. CFTC (3rd Cir. 1993) –Commission accept ALS “as substantially correct results” – not valid – not allow real review – need real findings –accept or not accept
Purpose of findings to avoid arbitrary decision making; need to knowwhat relied on
Intervention
language is “properly entitled” or “interested persons”
Courts give Chevron deference to agency - Can allow even if no federal court standing
And Environcare (D.C. Cir. 1999) – can deny even if Article III Standing - “prudential” – not within zone of interests
Ex Parte Communications
APA - 554 (d)
(1) hearing officer not consult party or person without notice to all parties;
(2) hearing officer not responsible to or subject to supervision of agency employer engaged in prosecutorial or investigative function
(3) Agency employee engaged in investigative or prosecutorial functions not participate in decision
APA 557 (d)(1) - no ex parte communications between interested persons outside the agency and any agency member involved in adjudication
APA 551 (14) - defines ex parte - “an oral or written communication not on the public record with respect to which a reasonable prior notice to all parties is not given
Issue - internal government oversight/ involvement
Portland Audubon v. Endangered Species Committee (9th Cir. 1993)
Statute allows Committee to grant exemptions from ESA - final arbiter after ALJ hearing and findings
White House involvement post hearing – claim President and his staff exempt from ex parte rules - ex parte rules apply – statute clear
Communications - must be “relevant to merits” to be barred – how show?
Not Bar settlement Discussions - ? Ruse
? Remedy – remand – disclosure and rebuttal; new hearing – depends on gravity
Issues are pro-agency bias [promotion; stability]; standards to become ALJ - Study – differences in rulings – personality and job concerns - not facts and law or case mix
Association of Administrative Law Judges v. Heckler [D. D.C. 1984]
Challenge by ALJ’s to new statute that requires special review of disability decisions to particular ALJ’s - District Court finds “untenable atmosphere of pressure and unfairness and violation of “spirit of APA”
No action taken – publicity has in part cured issue
New Rule – ALJ’s now selected by agencies and not OPM not agencies – but still have to follow OPM Rules as to limited involvement with agencies and pay also by OPM independent of agencies - and since eliminate OPM from hiring process - so what now?
Limits by Regulatory Presumptions
“irrebutable presumptions” – grid rule – once felt to be bad – now Courts allow [except in criminal cases]
Others Issues
Delay – courts have never enforced “reasonable time” requirement
Seriousness of Issue – less serious – less likely of abuse - more likely to allow informal adjudication – is “ancillary”
INDIRECT CONTROLS
A. Introduction
Controls – Noted Earlier
Non-Delegation Doctrine [? Applied – but still out there]
Appointments and Removal
Civil Service Statutes
Financial Disclosure Statutes
B. Public Access to Records
Administrative Procedure Act – vague exceptions – “public interest withholding; “good cause” withholding; no judicial remedy for withholding
Federal Records Act - what records agencies must collect and maintain
Freedom of Information Act - public inspection of records- key is in camera inspection; indexes
Privacy Act;
Trade Secrets Act - as to confidentiality
Sunshine Act and Federal Advisory Committee Act - open meeting laws
Kissinger v. Reporter’s Committee (1980) - Rehnquist
FOIA requires there to be an “agency record”
Transcripts of Kissinger’s phone records to Rockefeller Estate and then Library of Congress; request to State Department – and not required to keep – so no duty to retrieve
Even if a document requested under the FOIA is wrongfully in the possession of a party not an “agency” - agency does not violate its duty - does not improperly withhold materials by not seeking retrieval accretion and if not in violation of standards - courts have no jurisdiction to order production
Firsham v. Harris (1980) - 17 year study of diabetes funded by Federal Agency
Agency had access and could demand custody at any time
As result of study FDA restrict certain medicines as ineffective
To discredit study - filed FOIA request -
Rehnquist - these were not “agency records”
Science Group not an agency - but grantee
FOIA not apply to information that
could have been
obtained - only that in fact obtained
Definition of “Agency Record”
2007 Amendment – “agency record” now any information maintained for an agency by a Government contractee
So – now includes
(1) by agency staff; (2) funding by agency; (3) located physically in agency; ;
But still open question if amendment means to include
(4) agency has right to obtain;
(5) used by agency
Federal Records Act and not FOIA requires
Agency heads to make and preserve records;
Not destroy unless consent by head of GSA - delegated to Archivist
But only Attorney General can sue to enforce Records Act
C. FOIA Exemptions
Nine exemptions and are to be narrowly construed
Exemption 1: Information that is classified to protect national security.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
Exemption 5: Privileged communications within or between agencies, including those protected by the:
1. Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
2. Attorney-Work Product Privilege
3. Attorney-Client Privilege
Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.
Exemption 7: Information compiled for law enforcement purposes that:
7(A). Could reasonably be expected to interfere with enforcement proceedings
7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
7(D). Could reasonably be expected to disclose the identity of a confidential source
7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
7(F). Could reasonably be expected to endanger the life or physical safety of any individual
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
Personnel Matters Exemption -
Miller v. Dept of Navy (2011) [Kagan] - Navy to bar disclosure of data and maps to store explosive- exemption not reach that far
Key is “personnel” – narrowly construe
Deliberations – Privilege & Work-Product
NLRB v. Sears (1975)(White) – FOIA by Sears to General Counsel as to decision to file an unfair labor practice
Under NLRA,- General Counsel has unreviewable authority [prosecutorial discretion]
Advice and Appeals Memos - explain decision not to file - are “final opinions” and not exempt
But advice and appeals memos which explain why is filing a complaint - is not a final opinion and so exempt
Other Privileges
Executive Privilege – but “criminal” exception – Watergate Tapes
Evidentiary Privileges – diplomatic; military and national security - [contrary to public interest] – need formal claim and court balance
Common Law Privilege – Confidential Commercial data – FTC; Federal Reserve – can delay so as to not affect market
Attorney Work Product – categorically exempt
Inter-agency memoranda [even to outside contractees]
Exemption 5 – “Inter-agency memorandum” vs “Final opinions”
Fish & Wildlfie v. Sierra Club (2021) – biological opinion” that EPA Rule wld jeopardize endangered species – EPA reject and ask for new opinion – then said no jeopardy – request for previous opinion – not final and so inter-office
Exemption 7 – Privilege – investigatory record compiled for law enforcement
Trump v. Vance (2020) – no absolute immunity for stopping accountants from turning over records – to NY District Attorney – no heightened standard –but as to Congress request – separation of powers issues [Mazurs]
Privacy
DOJ vs Reporters Committee (1989)
FBI accumulates and maintains criminal identification records [rap sheets] [NCIC] –
Exemption - “could reasonably be expected to constitute an unwarranted invasion of personal privacy”
strong privacy interest - confirmed by 1974 Privacy Act as to computer data - here analogous concerns
Balance public interest with privacy –
Hold as a categorical/bright line matter - requests by third party as to criminal rap sheets invade privacy interest - and release as to records being stored as to private parties here are unwarranted
General Policies
Supreme Court reluctant to reveal info about private parties –
U.S. Dept of State v Ray (1991) - not release of names of Haitians who apply for asylum and denied;
Natl Archives v. Favish (2004) - privacy exemption bar release of death scene bodies [sensibilities of family
Privacy Act of 1974 – stricter limit - need consent of person as to whom records kept
Corporations not have personal privacy interests under FOIA or Privacy Act
Individuals and Corporations may have protection under separate protections for Commercial Privacy Exemption - Food Marketing v. Argus (2019) – FOIA Exemption for confidential commercial – interpret boadly – to anything most consider “private” or “secret”
Also are specific statutes - Trade Secrets Act; Consumer Product Safety Act
Open Meeting Laws – “Sunshine”
Two Dominant Statutes – Often Paralleled in State Law
Federal Advisory Committee Act and Congressional Resolutions –
Committee sessions ordinarily open to public
Must give notice of meeting; open meetings unless President or Agency head decides must be closed
Disclosure [with FOIA Exemptions] of minutes, records and reports
Exempt are committees wholly made of Federal Government Employees [though may be covered by Sunshine Law][Clinton Health Care; Bush/Cheney Energy Task Force
Sunshine Act - all agency meetings open - unless in exemptions
Must vote to close and still keep a verbatim transcripts
Issues - what is an agency meeting and is there a specific exemption
FCC v. ITT (1984)
Informal international conferences attended by FCC members
Not cover these consultative processes
Other definitions
Paper Meetings – Circulating memos – not covered by Sunshine - if is “routine business”
Exemptions – Sunshine Are ten exemptions – 7 same as FOIA
Largest addition - - information that on premature release frustrates implementation of proposed agency action
Common Cause v NRC (D.C. Cir. 1982)
Budget Meetings – no blanket exemption
Case by case if actions covered by exemption - “significantly frustrate ability to deal with outside parties”
Framework
Growth of Administrative State - New Deal - Social Regulation; Business Regulation; Environment; Health Care
Modern Application
APA - 1946
Model State Administrative Procedure Act
FOIA/Sunshine/Advisory Committee Act; Federal Records Act
Focus on Federal - Premise - Constitution
Art. 1 - §1 - All legislative Powers to Congress
§ 8 - Powers of Congress + Necessary and Proper Clause
§7 - Veto by President - 2/3 to override
Art. 2
§ 1 - Executive Power vested in President
§ 2 - Power - Commander in Chief; Treaties; Appointment of Officers
§ 3 - President “take care that the Laws be faithfully executed
Theories - Policies
Core Functions or Deal with Social Problems-
“public interest/public value” [market failures; abuses by entities; efficiency; autonomy]
or negotiated compromise between competing interests - “public choice” - creates government supported cartels - corporate state
Public Interest/Welfare Economics - -
control of monopolies; public goods distribution;
oversee external effects; lack of information without government intervention
Moral Interest - Public Value –
human dignity; equality; - - food; reproductive freedom; family unity; anti-discrimination; core freedoms
EXECUTIVE CONTROL
B. Executive Command
Inherent Executive Power
Youngstown Steel – 1952 - ? Presidential “inherent powers”
++/--/+- (Twilight Zone – Jackson)
Dames v. Moore – 1981 – Foreign Claims – foreign policy; history of allowing
Independent Agencies vs part of Presidential Executive Branch
President – not Administrator – not subject to APA [OMB; White House Counsel]
Sub-delegation – Delegation to President- he can delegate down; as can Cabinet officers - power presumed
But to parties outside agency - United States Telecom v. FCC (D.C. Cir. 2004) - telecommunications - - not sub-delegate to outside parties [here states] unless explicit Congressional authority [Clean Air and Clean Water]
C. Appointment and Removal
Appointment
Article II, § 2, cl. 2 –
{Senior} Officers - Advice and Consent;
Inferior Officers [Departments; Courts; President] - No Advice and Consent
Buckley (1975) - FEC – no power of Congress to select Administrators Congress can only set qualifications
Inferior vs {Senior} officers– case by case –
Morrison – special counsel – “inferior” so court could select
Freitag – define special trial judges as “inferior” officers – not employees – so court/department could appoint
ALJ.s [D.C. Circuit] – just employees
Arthrex (2021) – Administrative Patent Judges – rule on patents validity – powers indicate that are Principal Officers – not be appointed by Secretary of Commerce
Employees – Congress power – “Civil Service” Laws & Protections
O (Principal ) Officers -- appointed by only president and advise and consent in order to appoint
o (inferior) officers - president, agency head , or court appoint
employees - appoint by anyone else
Art. 1, § 6, cl 2 –
No Senator or Representative can be appointed to civil office [while serving as legislator] [ineligibility clause]; and
No person holding an Office under the United States can be a member of either House [Incompatibility Clause}
Challenge to Congressman being in military reserves - knocked out by SCT - Schlesinger - on standing grounds
Article III Judges – “Inferior Officers” - Mistretta - Sentencing Commission - consist of Judges - “traditional matter of judicial concern” - no Separation of Powers issue
Recess Appointments - Art II, § 3, cl. 3 - Intercessions –
NLRB v. Canning (2014)[5 to 4][Breyer] [practical compromise]
Prez can appoint during recesses longer than 10 days
The president of the United States may invoke the Recess Appointments Clause to fill a vacancy that exists during any sufficiently long Senate recess.
Senate can run pro forma sessions to prevent this and do.
Removal
President has sole power to remove generally , but congress has power to set terms for removal for good cause .
good cause provision is something congress has the power to do.
Nothing in Constitution
Madison – President full power to remove all officers
Marbury v. Madison – Marshall – Congress can limit authority
Myers – 1926 – President can remove
Humphrey’s Executor - 1935 – FTC – Congress can set terms of office and limit reasons for removal [independent agencies]
Bowsher – 1986 – Congress can’t give self power to remove
Morrison – 1988 – “good cause” - strictly limit Attorney General’s power to remove - ok
Seila Law LLC v CFPB
CFPB single head-- can only be removed by president for good cause
LAW CHANGED UNDER CASE --> ordinary advise and consent appointment cannot be for good cause, president must have ability to remove .
Agency with more than one person leading can be limited but individual lead cannot be insulated from removal
Civil Service – appointments and removal – process
impact on motivation
Patronage – Branti – 1980 –patronage – political affiliation ok – if policy-making
Seila Law v. Consumer Financial Protection Bureau (2020)[Roberts][5 to 4]
Agency consists of staff and a Director - with a five year term and who can only be removed except for inefficiency, neglect or malfeasance [for cause].
Agency has broad administrative, quasi judicial, and quasi legislative power.
Here investigation of Seila - debt-related legal services entity - Agency asked for “civil investigative demand”[equivalent to an administrative subpoena]
sale of debt-related services. [“Hail Mary” argument as to structure]
Commission unconstitutional limits on power to remove
Presumption that President has to have the full power to remove - without qualifications –
Federal government entities have to be accountable to President - who is elected officer
History - only two exceptions -
Independent agencies - with number of individuals serving on Commission [presumptively non-partisan][FTC; NLRB; SEC]
Agency with small o - officers - appointed by President, Department heads or Courts [Morrison - Independent counsel]
A. Overview
Art. 2
§ 1 - Executive Power vested in President
§ 2 - Power - Commander in Chief; Treaties; Appointment of Officers§ 3 - President “take care that the Laws be faithfully executed”
Necessary and Proper Clause
Exercise of Discretion –
Selection of Regulators
Process vs Executive Orders
Standards - Risk-Benefit/Cost-Benefit
Agency Control vs Executive Super-structure
ENFORCEMENT & LIABILITY
A. Enforcement Powers
Premise of Administrative Law – and Government - is the ability to force or even coerce behavior – either directly or indirectly
Most coercive – “Command and Control”
Government issues commands; monitors compliance [behavior]; imposes sanctions for non-compliance
Two “theories” - Cost-benefit - “people obey the law when the cost of disobedience [penalty times likelihood of detection] — or “good guy” follows conscience and also societal norms [shaming; regret]
Methods of Enforcement
(1) Physical Inspection – regular; scheduled; surprise
Marshall v. Barlows (1978)(White)
Surprise Warrantless Physical Inspections by OSHA not allowed- violates 4th Amendment
Administrative Warrants – even ex parte – not at level of probable cause – “reasonable legislative or administrative standards”
Planned Scheduled of Inspections – “Administrative plan – may be allowed
Camera v. Municipal Court (1967) - city’s annual inspection of private home for health violations - privacy rights extend and either consent or search warrant
See v. Seattle (1967) - administrative searches of commercial business areas not open to public – consent or warrant
Donavan (1981) / Burger (1987) - mines/junkyard - “certainty and regularity of statutes inspection program” - so non-warrant based inspections allowed
Not always need warrant – can use subpoenas/lower standard of need – are available –and can be done by ALJ – mostly for documents – not so much for physical inspections
City of Los Angeles v. Patel (2015) - L.A. ordinance -hotels must maintain guest registrations and make available to police - - 5 to 4 - Sottomayor - bad - on its face – right for pre-compliance review by neutral decision-maker - could be remedied by pre-compliance administrative subpoena before ALJ
(2) Compulsory Production of Information - Subpoena
Most federal regulatory statutes require turning over of information and also even compulsory testimony – standard
(1) inquiry within authority of agency –
explicit statutory authority;
(2) demand not too indefinite;
(3) information sought is reasonably relevant
highly unusual for a court to find administrative subpoenas unreasonable – “official curiosity enough” [Morton Salt (1950)]
Standard of Appellate Oversight - is “abuse of discretion” by judge [ALJ or District Court]
(3) Record-keeping Requirements
To Monitor records - need to have records - so can require [cf IRS] –
S.Ct - required record keeping by businesses - PrivSelfIincimination not apply [Bellis (1974)] –
PSI may apply to individuals - but still heavy burden on individuals to raise claim –
Mandate to keep records - must be explicit in statute - but courts give wide [Chevron] deference as to whether “requirement” in statute
Confidentiality/Other rights – case by case – Monsanto (1984) – FIFRA - Takings Claim – some info protected from third party release [or at least entitlement to compensation] by Trade Secrets Act – expectation of non-release
(4) Prosecution and Selective Enforcement
Broad discretion to government to select targets and what action to be taken and what remedies sought
If action – due process and APA Issues
Inaction - few if any legal remedies for failure to prosecute - and even if statute say should or must - courts often interpret as may
Moore Industries v. FTC (1958); FTC v. Universal Randle (1967)
Agencies can take one step – one party and not prosecute all violators or have comprehensive enforcement policy
(5) Agency Enforcement Orders
Remedial/Enforcement Orders [like “cease and desist”] - pursuant to statute - ok- before or during or after adjudicatory proceedings
General Electric v. Jackson (D.C. Cir. 2010)
Statute allows Orders - clean up hazardous wastes – not vs due process - stock price not give property or liberty interest
Recipient of order (1) can cleanup and seek reimbursement; or (2) refuse; EPA does it; goes to court to get money – but willful failure to clean up – however – can lead to substantial fines
6) Disgorgement
SEC –party ordered to forfeit profits to victims of illegal transactions – upheld - Liu v SEC (2020) – equitable relief powers
Statutory context – if not there – no disgorgement – AMC Capital Mgt v. FTC (2021)
B. Private Litigation
Primary Jurisdiction and Pre-emption
Conflict – common law and statutory remedy – Texas & Pacific Rlwy (1908) – rate setting – must go to ICC first
Issue is interpretation of statute and savings clauses
Pre-emption
Here is “vertical conflicts” - federal regulatory action and state law - Supremacy Clause vs States rights [10th Amendment] -
(1) Express Pre-emption; (2) Implied Preemption; (3) Occupy the field; (4) Conflict Pre-emption
also (A) State Common Law vs Preemption and (B) Savings Clause
Waves – now Kansas v. Garcia (2020) – look to federal interest and intent – more allowance of state statutes
PRIVATE LITIGATION
Unless specific statutory provision – private parties can’t sue to have agency enforce statute
Compare to suit to force regulatory action – EPA/Climate Case [Mass. V. EPA (2007)
May be some – very limited –areas – where courts may find “non-discretionary duty” – specific unequivocal from text – and deference to agency as to interpretation
Piggy-backing
Can private party rely on violation as evidence – Few Statues specifically allow - But can statute provide an “implied right” to have private party sue
More recently – courts less inclined to find private right to sue
National Railroads (1974) – not sue Amtrak – not in statute
Cort v. Ash (1975) – sue vs corporation directors to end spend money on political campaign – criminal statute - no authority for civil suit under statute - given to Attorney General or FEC
Test – to See if Private Rights to Sue
1. plaintiff must be one of class for whom especial benefit the statute was enacted –
2. Any legislative intent to create such a remedy
(3) Is it consistent with underlying purpose of legislative scheme to allow civil private remedy
(4) Is cause of action traditionally relegated to state law - so inappropriate for federal action
Cannon v University of Chicago (1979) - cut off federal funds for discrimination - claim of sex discrimination - not admitted to medical school - Court applied four part test - was private cause of action
Dissent in Cannon – now seems to be the rule – limit determination to text and legislative history and Supreme Court demands
“clear legislative statement that private action intended” – seldom found
Karahalios v. Natl Federation (1989)
C. Immunity
Traditionally - suits barred against the king [sovereign] –
Modified – allow suits against government employees
Laws also provide ability to sue – by statue – Contracts – Court of Claims; Torts - [Federal Torts Claims Act] [No absolute liability]
Limits - only bench trials; no punitive damages; mandatory settlement attempt; and exhaustion of administrative remedies
Statutory Exceptions - discretionary functions; tax or customs; assault, false imprisonment, abuse of process [except can sue law enforcement officers]; regulation of monetary system; combatant activities
Liability – Only to same extent as private party – similar civil claim
Key Issue – Exemption for Discretionary Acts
SA Empressa (1984) – no suit for inadequate airplane inspection – discretion to use “spot check” procedure
Berkowitz (1988) – improper release of specific lot of polio vaccine – remand to see as to whether duties discretionary or not – sets three part test
(1) look to nature of conduct - not actor – be tort if by private
(2) was action matter of choice [if so - is discretionary]
(3) Was choice - matter of policy judgment – so no suit
Gaubert (1991) – negligent management of S&L Government took over
“Day to day management of banking affairs, like management of other businesses regularly require judgement as to which of a range of permissible courses is the wisest”
Bivens Claims – violations of civil rights - Supreme Court seem to say not apply to federal agencies – Ziglar (2017) – post 911 detainees; Hernandez (2020) – not apply to Border Patrol actions [foreign policy; separation of powers]
LICENSING
A. Introduction
Definition - “generic government activity involved in granting, denying, suspending, revoking, and renewing permissions to act [a governmentally conferred benefit]
Involves conditions placed on licenses - tailor made regulatory commands to licensee
B. Occupational Licensing
Levels –
Registration - small fee but right to practice –why – barbar?
Certification - has certain skills - but still not bar [CPA vs PA];
Licensing proper – Standards and Regulation - lawyers
Due Process
Withrow v. Larkin (S.Ct. 1975) - Wisconsin Licensing Board - Dr who perform abortions - notified D.A. - also probable cause hearing and then set date to remove license –
No due process violation
Those who investigate not decide outcome
Presumption of honesty and fair dealing -
Different bases and purposes for probable cause and ultimate adjudication
Gibson v. Berryhill (1973) - Alabama Optometric Association file charges vs optometrist –unprofessional conduct as work for opticians –
Board also sue employer - Lee Optical - stop them from hiring optometrists
Was sufficient pecuniary interest to show bias and bar action
Friedman v. Rogers (1979) - two groups of optometrists
Small independents oppose use of trade names
Texas pass statute bar practice under trade name – l
Law upheld - not denial of equal protection - only need rational basis -
Unlike Gibson – not adjudication – still right later to fair disciplinary hearing
Anti-competitive Concerns
Historically anti-trust not to occupational licensing
Parker v. Brown doctrine- if sanctioned by state law - no anti-trust
Then Goldfarb v. Va Bar (1974) - minimum fee schedule - - no “learned profession” exemption
Also “Commercial Free Speech” [ Bates – lawyer’s ads – false/misleading]
North Carolina State Board of Dental Examiners v. FTC (2015)
Non-dentists do teeth whitening – Board – cease and desist - was illegal “practice of dentistry” - FTC - - was unfair competition
[6-3] - A state board on which a controlling number of decision-makers are active participants in the occupation the board regulates must be actively supervised by the state to make a claim of state action immunity
C. Business Licensing
Competitive process - allocation; rates; mandated services; alternatives
Allocation of Scarce Resources – “fairness”; “public interest”
Ashbacker v. FCC (1945) – two requests for license – one small wattage [Fetzer]; another [Ashbacker] to expand wattage from nearby community
FCC grant license to lower watt licensee without a hearing
FCC - did schedule hearing for Ashbacker request
SCt. [Douglas] - grant of one without a hearing effectively bars serious consideration - hearing is an empty thing –
Procedure must be to simultaneously consider both in hearing
License – Lease – Original Award
“Spectrum” – issues – major government income source – now more competitive – auction or lotteries
Other elements- “added points” – MBE; WBE; Local Needs; EIS
License Renewal
Often statutory or Administrative Preference – without hearing
License Removal – due process; “character” –
Often fines or forfeitures and not removals
Jaw-boning – implied threats if not do [more stringent standards]
Writers Guild v. ABC (9th Cir. 1980) – FCC “jawbone” for “children’s hour” – 7 to 8 p.m. – no violation of due process or 1st Amendment
“effective leadership” vs agency action vs APA
Rate Regulation
Once highly policed by courts - takings clause and due process –
Now Supreme Court - bow out of mechanics – “reasonableness”
MCI v AT&T (1994) - Scalia [5 to 3]
To promote competition – not require “non-dominant” long distance carriers to file tariffs [rates] that be reviewed
Not within statutory power [only allows modification and not removal of filing]– and so no “Chevron” deference
Regulatory Expansion
Issue here is changes in technology and who regulate or if can regulate
National Cable v. Brand X Internet (2005) [6 to 3]
FCC – Basic service [telecommunications]– to include DSL; Enhanced Service [Information Service] – to cover Internet – different sets of obligations and rates
Chevron deference –Not mean go unregulated – just different – not arbitrary and capricious [? One step at a time]
Ancillary Jurisdiction
Regulated Companies face competition from unregulated - ? Give power to agency to regulate formerly unregulated
FCC – assume power over Cable and then Internet [ISP’s – bandwidth]
Issue is “net neutrality” – must treat all users same – now proposal to change [Chevron deference - ?]