1 ADMINISTRATIVE LAW NOTES SPRING 2010 LEGISLATIVE DELEGATION REFUSAL TO REGULATE

Massachusetts v. EPA
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Legal question in this case? Whether the agency can/should/must regulate under the Act. How do we answer this question? Has there been a delegation of power? Do they have the power to enforce the subsequent rules?

Start from the language of the statute Setting out a grant of power to the agency - always your first question Creation of an agency Or grant of power to the agency Language of the federal statute is always the starting point EPA shall - no discretion By regulation proscribe standards Applicable to new motor vehicles Any air pollutant Stevens interprets this broadly New motor vehicles In the administrator's judgment possible discretion Reasonably be anticipated to endanger public welfare

EPA Argument 1: Regulating would interfere with other congressional actions Conflicts with DOT's authority to regulate efficiency standards Only way to regulate this would be tailpipe emissions and someone else is already regulating that Any rulemaking that EPA would undertake would be superfluous Response: Congress is the one who makes the pronouncements and the agency doesn't get to decide whether or not to follow; agencies have to execute the inconsistencies

2 Allowing the outcome of the statute to determine the meaning of the statute is the wrong way to approach the analysis Steven's position: We're a country of great innovation - issue the regulations that will prompt innovation within the industry (like what happened with lead gasoline, airbags/seatbelts) Statutory interpretation shouldn't be based on technological abilities; don't just throw up our hands Set aspirational standards / Set up a timeframe / Allow for setbacks Concurrent jurisdiction is the assumption that our agencies will overlap; will be asked to regulate issues that fall at the intersection of two fiefdoms

So what can the agencies do with concurrent jurisdiction disputes? Sue each other Negotiate with each other Go with the stricter regulation Get Congressional clarification (two actors within the same branch) Go to the head of the executive branch - ask the President o Concurrent jurisdiction is plausible and workable because the President (White House) is expected to oversee the whole mess EPA Argument 2: Congress failed to act on this issue on their own - Congress knew of this catastrophic problem and rather than acting, they delegated. o This inaction should be given deference - Congress chose a course and the EPA should respect that - Trying to figure out what the sorcerer wants us to do - we should try to honor the Congressional policy of further study EPA Argument 3: Piecemeal Approach - Might disturb an overarching presidential policy related to international negotiations - New Motor vehicles are 1/7th of the cause of GHG in the country - which produces 1/5th of the world's emissions o So why should the EPA interpret a statute in a way that would obligate them to regulate in such a fashion (which would end up being ineffective) and would also tie the President's hands in creating a global approach (would take away the President's carrot and stick) EPA Argument 4: Brown & Williamson Tobacco - FDA didn't regulate tobacco b/c regulating would ban the product - Tobacco was within the plausible definition of the statute - but the court said that wasn't plausible; Congress didn't grant to the agency regulatory power over such a large industry within the country

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Should be careful about interpreting broad language to grant immense power to the agencies

Secondary legal question: What is wrong with EPAs decisionand justificationsfor declining to regulate when the decision whether to regulate is left up to the administrators judgment? - In the administrator's judgment . . . May reasonably endanger health and welfare o EPA was saying, even if we're wrong about whether we have the authority, we still have the choice to regulate under that authority o There is residual uncertainty about the causal link between human conduct and climate change; the NRC report said causal link cannot be unequivocally established; so we (the EPA) do not want to regulate in the face of uncertainty
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Why is Stevens entitled to impose this on the agency? o The judgment is about the reasonability of the danger - not about whether they want to regulate / think it's effective o The discretion must be tied to the statute; they can choose not to act but their reason for not acting has to be connected to the statute Their current reasons are arbitrary and capricious

In summary, holding of Mass v EPA is that the clear text of the Section 202 clearly indicates that EPA has authority and the agencys contrary interpretation based on DOTs overlapping jurisdiction, the ineffective piecemeal approach & Presidents prerogative, Congressional silence, and Brown & Williamson is weak and foreclosed by the bare text of the federal law. Also, the EPAs justification for not acting, even assuming it has the authority, is arbitrary and capricious since the reasons it gives (e.g., residual scientific uncertainty) are unconnected from the statute. There is a subtle distinction between two types of decisions by an agency not to act: Refusing to take enforcement action (strong deference) v. declining to engage in rule making (much less deference, arbitrary and capricious standard) IRS decides not to sue inaction (non enforcement) is given incredible deference This is bound up in a highly factual inquiry Decision to decline rulemaking petition which is properly presented to the agency - is a question the courts will get into, although even here they will be deferential Your decision has to be consistent with the text of the statute Decision not to act as to be supported by reasons that somehow connect to the statute (unconnected reasons are tantamount to an arbitrary and capricious justification that can be invalidated by the court LEGISLATIVE DELEGATION - INTELLIGIBLE PRINCIPLE COST CONSIDERATIONS WHEN REGULATING

Whitman v. American Trucking

Overview of the case: This case deals with the Clean Air Act; specifically with the portion of the Act in which Congress delegates the power to set air quality standards to the EPA. The case presented itself before the DC Court of Appeals where the Court said that the EPA can look at costs because the statute gives them a broad delegation of power and charges them with promoting the public safety. If the EPA cant take cost into consideration, then the affected industries will shut down. Obviously, closing entire industries and creating vast poverty would be deleterious to the public health; something that the EPA is charged with promoting. Two legal issues: This case presents two questions to the Court: 1. Did Congress provide an intelligible principle in its delegation to the EPA to set air quality standards for greenhouse gases, e.g., carbon dioxide; and 2. Whether the EPA can take the costs of regulation (for the industry) into consideration when deciding whether to regulate or not The Statute: To set primary ambient air quality standards the attainment and maintenance of which is meant to protect public health with an adequate margin of safety. The Courts Opinion (Scalia): It cannot take costs into account when setting air quality standards. When we consider a question about delegation, we should think about whether the language in the statute provides sufficient guidance to the agency. That is because A1 S1 of the Constitution vests all legislative power in Congress. So, if Congress is going to grant that power to someone else, it must be limited in some way. The SC requires Congress to give agencies an intelligible principle when delegating them power. The point of an intelligible principle is to ensure that the administrative agency is not legislating, but is regulating and administering the law. In this case, the intelligible principle is requisite to protect the public heath with an adequate margin of safety. According to the Court, this sufficiently guides the EPA to administer the law as opposed to create the law.

It is worth pausing for a moment on Scalias argument that the Court has rarely declared a delegation of authority unconstitutional. In fact, there are only two times in the history of the Court that it has declared a delegation unconstitutional for failing to provide proper guidance to the agency. In one circumstance, Congress granted an agency the power to control the entire economy and in the other, Congress did not provide the agency any guidance whatsoever. However, Scalia believes that if the delegation of authority is broad, then the Court should examine the delegation more closely for an intelligible principle. Conversely, when the delegation of authority is narrow, the court does not need to examine the statute as closely. The breadth of the grant of authority is inversely proportional to the amount of examination that the Court will give the statute. The court determined that the Act did provide sufficient guidance to the EPA to regulate quality standards after it examined the text and the legislative history of the statute. air

The Court said that the EPA could not take costs into account because the text was silent on the matter. The statute does consider what the EPA may take into account, such as the public health, but in that consideration, it does not list cost of implementation. ***as a side note, Scalia does consider two definitions of public health as given in the dictionary. The first definition is narrow and the second is broad. Scalia determines that Congress must have intended the first definition to be used because; under the second definition the EPA would have the power to take ANYTHING into consideration. He said that Congress would not try to fit an elephant in a mouse hole, meaning that if Congress intended such a vast grant of power, it certainly would have said so explicitly. The Court also said that the EPA could not take cost into account because the legislative history revealed that Congress did not want the EPA to make that consideration. Placing language in statutes instructing an agency to consider the cost of implementation is not something that is foreign to Congress. In fact, they have done that very same thing in other provisions of the Clean Air Act (this type of analysis is called intratextual analysis). Scalias third argument is that Congress was aware that this statute could have serious affects on the US and they created a safe-haven clause for this very reason. Congress gave the EPA the power to waive a deadline if it is essential to the public health to waive the deadline.

6 Breyers Concurrence: Though Breyer concurs in the judgment, he disagrees with the process that Scalia and the Court uses. Breyer argues for an efficient government that can operate smoothly. He said that in order to have this, the Court must read delegations of power broadly, so that the agencies have the tools and the flexibility necessary to run the government on a day-to-day basis. He believes that court-imposed restrictions on power to agencies would handcuff them and put the brakes on government. Therefore, all other things being equal, statutes should be read to grant an agency the power to consider all necessary implications of a regulation. In this case, however, all things were not equal and that is why Breyer concurs in the judgment. He agrees with Scalia that the legislative history of the Act reveals that Congress did not intend for the EPA to calculate the cost of implementation when setting the regulation. Breyer differs from Scalia with respect to the presumption that the court should have when reading a delegation of power. Scalia believes that the court should presume that the power is not granted to the agency, while Breyer believes that the court should presume that the agency was granted the power. Thomass Concurrence: Thomas agreed with Scalia that this particular delegation of authority was Constitutional, however, he disagreed with the test that Scalia and the SCs prior decisions use. He argues that the intelligible principle test is a fictitious concoction of the SC that has no basis in the Constitution. Instead, A1 S1 requires that Congress exercise all law making. Therefore, he believes that the SC should rework the test to whether or not Congress vested law making power in the agency and not whether Congress provided the agency with an intelligible principle.

LEGISLATIVE DELEGATION DELEGATING CRIMINAL PUNISHMENTS AND SENTENCING

Touby v. US

7 Overview of the Case: In this case, Congress passed a statute permitting the agency to decide the penalties for drug offenses. It asked the agency to place drugs on a schedule. Each place on the schedule carried different penalties. The statute also permitted the agency to place new and innovative drugs on the schedule on a temporary basis. The temporary basis was not subject to judicial review, but the D could challenge the regulation in the trial court. The Court: The Court found that this was a constitutional delegation of authority to an agency. They were not swayed by the lack of judicial review, because the D could challenge the statute during the prosecution of the offense. Therefore, an independent judicial body still had the power to review the agencys actions at some point in the process. In this case, the Court wrestled with the question of what permits an agency to criminalize something in the first place? The Court had to balance societys interest in speed and efficiency of criminalizing innovative drugs against societys interest of having person who is accountable to the electorate.

Mistretta v. US
Overview of the Case: Congress created a sentencing commission to try and deal with disparities in the sentencing of federal Ds. They noticed that Judges were all over the map with sentencing and Congress wanted to rein them in by creating guidelines for sentencing. The commission was charged with creating a table for crimes that would recommend the appropriate sentences to federal judges. Basically, 7 people got to decide the sentences for every federal defendant in the country. The Court: The Court found that this commission was constitutional. The court argued that Congress was really delegating something to the judiciary that it already had the power to do. The Court argued that Judges already decide sentences. So, by creating a commission in the judiciary to make sentences more uniform, Congress is really only providing guidance to how the judiciary should exercise its own power. Scalias Dissent:

8 Scalia wrote a stinging dissent, saying that Congress was actually giving the Commission legislative power. He argued that sentencing was something that Congress should handle because it is absolutely law making and A1 S1 vests all law making power in the legislature.

Loving v. US
Overview of the Case: Congress authorized the President to set forth conditions as to when the death penalty can be enforced in the Courts Marshal system. A prisoner sentenced to death under that section challenged this delegation of authority. The Court: The court said that first of all, there is no hard and fast rule in the text of the Constitution preventing Congress from delegating its authority to a coordinate branch of government. Second of all, the President is the Commander in Chief of the armed forces, so when he is controlling the Courts Marshal system he is already acting within the purview of his constitutionally granted authority.

LEGISLATIVE DELEGATION - SUMMARY Art. 1, s. 1: All legislative powers vested exclusively in Congress.

Supreme Court doctrinal test: Congress must supply an intelligible principle to the agency. Whitman, Mistretta, Touby and Loving - examples of where the SC has upheld alleged violations of this doctrine. Take Aways:

(1) Where does the presumption lie? When it comes to something like costs, the assumption the majority of SC will take: unless Congress specifically suggests that costs are to be contemplated by the agency, then it would be improper for the agency to do so. This is the starting position for Scalia; he then adds that Congress specifically contemplated considering costs and rejected that idea. Moreover, they included reference to costs elsewhere. Therefore, they knew how to accomplish that objective and chose not to. Distinguish the above from Justice Breyer. Agreed with the judgment, but assumed that cost consideration fell within the ordinary discretion of agencies where technical details do become a part of calculations (2) American Trucking is the relatively easy case: (a) the objective is clear; and (b) the agency is given some sense of the types of data & analyses that its conclusions should rest on (3) Where broad delegations of power are involved, the SC will require Congress to be more specific with regards to the "intelligible principle" (4) Lots of concrete examples of language that satisfies the delegation requirements; it does not have to be very specific. See quotes from last class (5) Be sure to understand Justices Thomas and Scalia's opinions Reconcile Scalia majority in Trucking and dissent in Mistretta American Trucking was not quintessential lawmaking, standards within a technical field for a variety of air pollutants; that does not sound like something Congress is best at. In contrast, Scalia is much less ok in Mistretta when an agency is asked to determine what the right penalties are for the violations of federal law; that looks too much like lawmaking Justice Thomas picks up on this point. Acknowledges intelligible principle precedent, has no problem with American Trucking. But to use intelligible principle as litmus test does not make much sense - could delegate something with intelligible principles that is entirely too lawmaking-like to be ok

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(6) Delegating authority to unit of government that already has that power is something that gets greater deference Mistretta - That branch (judiciary) ALREADY fixes penalties, so what is wrong with having a subunit WITHIN the Judiciary to set guidelines E.g. - Loving - smaller power was contained in the greater power, then ok.

PRESIDENTIAL APPOINTMENTS AND REMOVAL SUPERIOR OFFICERS AND INFERIOR OFFICERS Introduction

11 o Presidential Appointment Power derived from Art II.2 Appointments Clause Pres advice and consent of Senate for superior officers BUT - Congress retains the power to vest the appointment of inferior officers

What about removal? o Pres can fire superior officers at will Does NOT need good cause There are no constraints So Why are there restrictions on the Pres to APPOINT officers, but NOT on the Presidents ability to REMOVE? Historically The Pres needed advice/consent from Senate so that small states could retain their political power in what high-ranking officials are in the Exec branch

Myers v. United States

Facts Statute provided that President can only fire the local postmaster general with the advice and consent of the Senate Holding Unconstitutional; Constitution limits the Presidents power to appoint officials and the Court understands that power to be strict and not also limiting his power to remove Requirement to obtain advice and consent of Senate for removal is too much a constraint on the President Reasons why requirement is unconstitutional: Position is purely executive Consider This position is one of an INFERIOR OFFICER So Given Art II, Sec 2 - Congress retains the ability to vest the power of appointment in Pres (alone), Courts of Law, and Department Heads Thus Shouldnt Congress also be able to impose restrictions to REMOVE that inferior officer? BUT Art II, Sec 2 Says that the power to appoint may be VESTED in one of those three bodies It does not actually GIVE that appointment power to Congress So then why would Congress be able to control when they are removed? ASSUMPTION

12 Unless Cong is specifically given the power, it is assumed that they do NOT have the power BUT With the Pres, we will assume he HAS that power even if not specifically delineated Myers should be read somewhat narrowly Only thing that remains With respect to purely executive officers, Cong cannot control the removal

Humphrey's Executor v. United States

Facts Roosevelt fired a FTC Commissioner appointed with advice and consent of Senate for a fixed term of 7 years Issues Does Pres have authority to remove him before his 7-year term is up? Does the restriction of the 7-year term obstruct the Presidents ability to remove him? Holding President did not have to power to do so Actually Pres CANNOT fire someone in the middle of their term that is statutorily provided for This is the point at which the Court breaks with the general deference to the Pres and says that some restraints are ok It DISTINGUISHES from Myers; Does not overrule Commissioner is quasi-leg and quasi-judicial officer, not purely executive Also note the 7-year term in distinguishing the cases The officer was DESIGNED to be independent of the Exec branch, as evidenced by the 7-year term restriction that intended to cross presidencies This 7-year term also ensures expertise in the job

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Morrison v. Olson
Facts Morrison appointed independent counsel to investigate Ted Olson Subpoenaed individuals then challenge the statute Specifically that the Independent Council appointed by the Judiciary branch (not the Executive) and there was a restriction on the President's ability to fire the IC (for good cause only) and that restriction seems to handcuff the President in a way that the Constitution does not allow Statute Grew out of Nixon Watergate scandal Provides for a politically independent investigation to high-ranking Exec official Allows AG to investigate and if finds anything then can ask Special Division to appoint Independent Counsel Allows Special Division (within Judiciary Branch) to then appoint Independent Counsel Holding "Good cause" requirement ok since its not really burdensome and does not impede President from performing his Executive responsibilities. What are the distinctions between these cases? Myers and Humphrey's Branches of government involves Impartiality matters Senate role Humphrey's and Morrison Inferior officer Purely executive

INFERIOR AND SUPERIOR OFFICERS

14 QUALITIES & APPOINTMENT OF OFFICERS BY JUDICIARY

The first question the Court puts forth to decide this is: 1) We have to decide whether or not Morrison is an inferior officer or not Holding Yes, Morrison is an inferior officer Courts definition of inferior officer: 1. Subject to removal by a superior officer, i.e., the Attorney General 2. Limited duties 3. Office is limited in jurisdiction 4. Office is limited in tenure These four facts are just issues or factors to look at. They are not dispositive. What is Scalias position? Does not agree that this is inferior office. This person is embued with all of the powers of the Department of Justice to conduct her investigation. And that seems like an unlimited jurisdiction. Although her position is limited to a particular series of events, that investigation could take 6 months or 6 years and could involve subpoenas that involve lots of people The mere fact that someone besides the President can fire you, seems a low bar. Essentially anyone besides the cabinet members will report to someone besides the President, so does that mean that all of those people are inferior officers.

Why is it important whether or not Morrison is an inferior officer or not? It comes from the Constitution that limits the ability of Congress to appoint inferior officers. If the person is deemed a superior officer, the President and only the President can appoint that person with the advice and consent of the Senate. (Appointments Clause Art. II, Sec. 2) He cannot delegate that to a DC Circuit court, etc.

15 Head of Office of Legal Counsel, the Head of National Security Office are rightly construed as superior officers. The reason for this is that they are long-standing positions, and positions that report directly to the President. But in reality you do not fire the head of the Office of Legal Counsel without getting the Presidents ok. So superior officers are not just limited to the heads of cabinet departments. Congress cannot pass a law sending the appointment of a superior officer to someone else. If IC is an inferior officer, Pres need not have appointed, and then you can ask whether Congress was acting within its powers to vest in the DC Circuit Court the power to appoint.

Question 2: Is it okay for the judicial department to appoint this officer? Courts holding Yes Courts reasoning - federal courts appoint officers in various circumstances, e.g., such as when there are claims of contempt of court or allegations of wrongdoing. So in light of this it is not unusual for Congress to have vested this power into a subunit of the judicial branch. Not a new power being exercised; not unusual for Congress to vest power in sub-unit of judicial branch. Judicial branch in charge of interpreting laws/making decisions, so appointment fall within the traditional scope of power and expertise. Hears cases and make resolution (decides up/down). It is a foreign concept for a judge to appoint someone to do it. So isnt it odd for one branch to vest power to appoint in judicial? Chief Justice says no. The judicial branch makes decisions, but it also appoints in special circumstances and this is a special circumstance So there is no problem with the judicial branch appointing a prosecutor to investigate allegations against high officers of the executive branch Also, if you specifically look at the Constitutional clause Art. II 2, cl. 2, it specifically says that you can vest the decision to appoint these inferior officers in the courts of law along with the President or in the Heads of Departments. So framers anticipated judges/courts of law might from time to time be making appointments.

16 Question 3 Separation of Powers = this is the meat of Morrison that gives rise to a new test that supplants the test of Humphreys Executor approach or either complements the Humphreys Executor approachAt the end of the day, the question of whether this removal provision violates separation of powers turns on whether or not the restriction interferes with the Presidents execution of his executive power. Art. II, 3 says that the President must take Care that the Laws be faithfully executed The restriction that you can only fire for good cause is not an onerous position that prevents the President from executing his responsibilities faithfully and it is found in many employment contracts. It is just an ordinary provision. Because the ultimate test of Morrison is does the firing condition get in the way of the President of doing his job the Court finds they have no objection to the firing condition because it does not get in the Presidents way. Morrison takes the last part of Myers and says you are not getting in the Presidents way this is the ultimate question or test when you get to an inferior officer. Test: 1. Is the officer inferior? If not, then only the President can fire the person 2. If so, does the firing condition get in the Presidents way of the discharge of his duties? (ultimate question). If not, then the provision is constitutional and okay. Here, President can do his job. This is a simple restriction in a lot of K's (i.e. can only remove by Ag and for good cause) -- not an onerous restriction on Presidents ability to discharge duties.

Congresss power to remove is not a specifically enumerated power, but it is an incidental, natural of the power to appoint inferior officers in the President, judicial branch, or Department head Morrison is, in some sense, an anti-President position like Humphreys Executor (so Myers is the outlier case). Morrison says that the ultimate q is: are you getting in way of President's responsibilities?

Bc quasi-legislative/quasi-judicial function of IC, not getting in the way of President

17 Might find ammunition for analysis of "is it getting in the way" in prior cases

Where is statutory language that gives Cong power to put restrictions on apptments?

Ted Olson is an important figure in modern American legal history - represented Bush in Bush v. Gore. Teamed up with the lawyer that represented Gore in Bush v. Gore to challenge Californias Proposition 8 Other ways that the President and Congress have oversight power over agencies and the ways in which these powers are done.

LEGISLATIVE VETO

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INS v. Chadha
Facts Law enacted by Congress that enabled Congress and AG to have a role in the deportation of immigrants (Immigration & Nationality Act of 1952) Chadha facing deportation. Under 1952 Act, first person who needs to act for Chadha to stay in US is AG. AG given power by Congress to make determination that deportation would be hardship and AG then has power to suspend deportation. o No real delegation problems with this. o But Ag's decision conditioned on Cong approval Sect 244 of Act gives Congress power to veto (Cong has reserved to itself some power to oversee the administration of justice). o AG exercising power granted under the statute. Congress delegates power to decide when deportations can be suspended, but if Congress disagrees with AGs decision not to deport, it could pass a resolution against the AGs suspension of deportation. The AG could make a determination whether a foreigner could stay in the country But Congress enacted a statute that allowed either house of Congress to pass a resolution to deny the foreigner the ability to stay This was a law enacted by Congress to allow Congress to have a role in the deportation process What happened before this law was passed? Only remedy before the law was passed in 1952 was that Congress could pass a bill that allowed an individual foreigner to stay in the US when they face deportation Who is delegated the authority in the first place? The AG And what does he get to do? Make a determination that if the deportation would pose a hardship on that person or family and if AG found such a hardship, the AG could suspend deportation In this case, the AG found such a hardship So Mr. Chadha is on his way to stay in the country so long as neither the Senate nor the House of Reps puts him on a list of people they thing should be deported

19 This case is an example of where Congress has reserved for itself the power to oversee an administrative agency. The AG has exercised the discretion given to him under the statute. Congress is saying they are delegating the power to determine deportations that they used to exercise, but they are limiting the power to say that one of the branches can limit the power to prevent deportation. The question does this pose a constitutional problem? What is the constitutional provision that you might invoke if you were Chadha? The presentment & bicameralism clause Art. I, 7, cl. 2 requires that both houses pass a bill and obtain presidential signature. The Court says that the statute 244 is unconstitutional because it did not pass both houses and it was never presented to the President. Bicameralism is especially important when the veto may alter the responsibilities, duties, and rights of someone outside of Congress, indicating a legislative action requiring bicameralism. deporting someone is affecting someones legal rights. Just as it was legislative action before 1952 to have private bills that would alter Chadhas rights and allow him to stay here. The resolution that would prevent Chadha from staying here is also legislative action. And thus it must meet the presentment and bicameralism clause. So the only way that Congress can change this is to amend the Constitution. So why is it so problemsome for Congress to enact a law to shift some power, but to reserve some of the power (limited oversight option). It is certainly an example in which Congress does not show the utmost faith in the executive agency. Held: sect 244 violates Const because it violates bicameral requirement (doesnt preserve 2 branch way of making bill become a law) Can tell by intent and effects that this is legislative action (modifies duties and rights of people outside of Congress) o Mr. Chadha has to be deported --> Legal rights being affected by action of Congress o Legislation is nothing more than actions by Congress that impact rights and duties of persons beyond Congress

20 Just as before 1952 Congress can pass a bill to allow Chadha to stay, a decision by either House which prevents him from staying is legislative action, and therefore subject to the protocol (bicameralism/presentment)

Whats so troubling about this arrangement? The Court contemplates discrete lists of situations where one house by itself takes unilateral actions- House impeachment, Senate convicts from impeachment, Senate ratifies treaties, Senate advises and consents on Presidential appointments The original law satisfied protocol; why isnt it ok that Congress preserved some power and gave away some power (retained some oversight)? Doesnt this seem like plausible way of sharing power w/I govt?

Hobsons choice in the opinion Hobsons choice is a free choice when only one option is offered -you are offered horses in rotating stalls, but can really only choose the horse up front This is not a workable government that we envisioned in the administrative state to delegate authority to agencies, but then to reserve some powers There were tons of laws that had these legislative vetos in them that gave one or both houses of Congress that gave them the ability to override the agencys action. Justice White says that you are about to strike down more laws than have been struck down in the entire history of the country. Doesnt that seem harsh- to give them a Hobsons choice to delegate completely or not delegate at all. But efficiency may be okay. That the Constitution consciously put in place separation of powers to put in efficiencies to ensure that one branch of government did not have too much power. Why does this not satisfy the spirit of presentment and bicameralism? Pre-1952 The Senate and House have to approve and President signs the bill

21 Post-1952, under 244 The AG says that the deportation should be suspended and then we have both Congresses say they do not disapprove (by not passing the resolution). So this is both branches of government acceding to approving Chadhas staying in the country The order of approval is different, but are these not the same thing?

Summary Case sets forth the type of oversight the legislative branch can have through veto (of sorts). Congress has tried to create loopholes to get around Chada. Congressional Review Act (around 1995). Every major regulation has to have a 60 day period of review before it becomes law. If the house and senate disagree during that time, a proposed regulation can be fast-tracked through both chambers, and sent to the president to sign. If so, the regulation will not go into effect. The act just standardized how this process should happen under Chada (It satisfied requirements for bicameralism and presidential approval)

Holding SC said: If you are taking legislative action, if that action in its intent or effects modifies the rights or duties of people outside of the legislature, then Congress can only do so in a manner consistent with bi-cameralism. Prof. Hypo Imagine that NASA gets a grant of $2 billion to establish a Mars

station. Congress authorizes the $2 billion, but in addition states that if NASA needs more money it can make an additional request to a congressional subcommittee that deals with space exploration. If the subcommittee approves additional funding, then original $2 billion grant can be exceeded. Prof asked: Is this plainly unconstitutional or not?

22 Ms. Frankie: Not constitutional because the subsequent action is a legislative action that should go through the bicameral process Ms. Parsi: Not constitutional Said that hypo is similar to Chada. Broader pole. Most votes for not constitutional. Argument that the subsequent grant to NASA was constitutional: It was distinguishable from a legislative action because it did not change anyones rights; it was only an approval of funds. Ms. Mannion: Constitutional. Prof: Why cant the hypo scenario just be taken out of the legislative category because it can be distinguished from Chada, which altered rights. Mr. Arbagast: Not constitutional because rights of others could be affected if the subcommittee had unfettered access to funds. Prof: Changed hypo so that subsequent request would have to be capped at a certain amount according to the grant of funds under the original bicameral process. Would that scenario be different from Chada? Prof: The question is this a legislative action or not. Student: It has to be a legislative action of some sort. 1st debate Prof: Things like this happen all the time. Committees are always allocating more or less money than planned for. There are questions about the constitutionality of such occurrences. Scholars have problems squaring these types of actions with Chada, but think that an exception for appropriating money exists. 2nd debate: Bear in mind that congress can make non-binding actions[?]. Congress as a whole or subcommittees can act this way. They are acts of legislation, but not legislative actions under Chada. Doesnt fit under concept of legislative action. 3rd debate: Mr. Tressler: Congess is essentially creating a legislative agency with its committee. Prof: Would you be OK with Chada if, instead of saying that the Senate or House can

23 overcome legislation, that this subcommittee is responsible for vetoing it even though the AG said no. Restate hypo In Chada, the idea was that the House or Senate can disapprove of AGs decision. Tresslers point: A subcommittee would be granted power to override AGs decision, would that change the result in Chada? Prof: This is not a way to get around Chada, but would run afoul of Chada. Student: Who would have standing in such a case. Prof: Tabled until later

Bottom line: Point 1. There are many ways congress maintains oversight over agencies, and Chada is still good law. Point 2. Chada involved an adjudication (as opposed to administration of a rule). Chada dealt with a specific designation of specific people facing deportation. J. White: We could have avoided the broad sweep of the Chada decision affecting agencies with override provisions. We could have treated this as an adjudication because it dealt with one person. Legislation could be used to deal with broader.

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LINE ITEM VETO

Clinton v NY

Facts Line item veto case. Congress passed a line item veto bill, that was signed by President

Clinton. Act allows President to veto specific provisions he disagreed with; contrasted with discretion to control aspects of spending. There was wide support for the bill, because everyone disliked the idea that pet projects (pork barreling) were embedded in bills that the President was forced to accept if he signed the bill. The act provided for 3 situation s when President could veto. Clinton vetoed a provision that would have allowed NY to not have to pay back $2.6 billion it had received in Medicaid benefits. Clinton signed the broader bill, but used his line item veto power to cancel out the debt forgiveness to NY. The Act included a provision that conferred standing to members of congress to challenge the Act. Such a challenge would by fast-tracked directly to the SCOTUS. Members of congress that thought the Act was unconstitutional challenged the bill, but SCOTUS held that they had no standing, no matter what standing the Act provided. Instead someone directly affected by a line item veto would have standing to file lawsuit. For example: Consider the NASA hypo above. When the subcommittee allowed the subsequent appropriation, someone affected by that

25 additional appropriation could sue. The class of potential aggrieved parties would be narrow; likely an affected agency or state. o Standing: Harder option, If congress gave money to X, then Y who felt entitled to that money would have standing. o Standing: Easier option, If Congress directly took money that was going to Y and gave it to X. Y has standing.

Holding In Clinton, SCOTUS found line item veto unconstitutional because President should not be allowed to cancel a law after signing, especially so soon afterwards (the Act allowed a veto action within 5 days of signing). President does not have the power to unilaterally change statutes; requires bicameralism

Comments Prof.: Did you agree with holding? Student response: Constitutional. The line item veto is practical. Student response 2: Unconstitutional. The political nature of pet projects is welcomed in recipient district, so the line item veto raises a political question that cant be decided by the President But if enough procedural limits were placed on line item veto power, it may be considered constitutional. Prof.: There are already constitutional procedures for getting rid of pork barreling (Pres can veto entire bill, it goes back to congress, and comes back to pres). Prof: If you think there is an inefficient process or protocol put in constitution by framers, the constitution can be amended to deal with modern truths. Student. Congress is not going to want to limit themselves by giving power to the president.

26 Prof. summarizes. On the one hand, the line item veto is practical and widely politically popular. But the SCOTUS concluded it was hard to get around plain language of the Constitution. There is only one legislative process intended by Framers. We cant allow a president to re-write legislation.

Field v. Clark (distinguished in Clinton case)

Holding President can suspend free trade with other countries and veto items off a pre-determined list of items that are freely traded.

Analysis President may unilaterally take items off a list of items that can be traded is distinguished from line item veto power because the conditions related to trade, and policies of other countries may change suddenly. President needs to be able to act quickly. Second. Presidential authority here is limited by very narrow discretion. Third. Even when the President is acting to erase items from free trade, he is doing it to achieve the aims of congress. Contrast with Clinton, where President had to act w/in 5 days. That period is not long enough for facts to change. Instead, he is rewriting legislation by stroke of pen. In Clinton, there was no indication that the broader bill would have passed without the debt reduction to NY state. In Clinton President is not effectuating the goals and aims of congress. Instead with the stroke of his pen he is wiping away negotiations made in Congress.

27

ADJUDICATIONS AND RULEMAKING COMPARED BASIC DISTINCTIONS Ajudication and Rulemaking: Adjudication: Effects a small group of people Is retroactive. (you owe this tax to us now) In these situations people must have notice and the opportunity to be heard.

28 Rulemaking: Affects a lot of people o Proscriptive

29 ADJUDICATIONS RIGHT TO A HEARING & DUE PROCESS

Londoner v. Denver

Summary Establishes when an agency rulemaking process must submit to adjudication. Prof.: Londoner is not a classic case of adjudication. Generally, adjudication affects a small group of people, and is usually retroactive.

Issue Do those affected by a tax have the right to argue their side and support their allegations by proof?

Holding SCOTUS: When rules affect a small number of people, the Due Process Clause requires that the people affected be given notice and an opportunity to be heard and challenge. The 14th amendment due process clause allows notice and chance of individuals affected by agency decisions to be heard. Its not that much of a burden on an agency to give people a chance to complain when those people are part of a small group.

Bi-Metallic Investment Co. v. State Board of Equalization of CO.

Summary One part of Bi-Metallic is, when an agency decision/rule affects a broad group of people, each person does not have right to a forum to voice objectives, because: 1. Is not practical; and 2. there is a political remedy through the democratic process.). Rules are prospective in application, may affect many people, and are not really bound by fact-bound limitations.

30 Londoner, and Bi-Metallic differ on the basis of an order versus a rule, respectively. Orders are products of adjudications and rules are products of administrative decisions. The Administrative Procedure Act has very different rules for adjudications and administration. A sub-category is informal rulemaking and informal adjudications (well talk about later.)

Wong Yang Sung v. McGrath. (1950)

Summary Habeas corpus proceeding involving Sung, a Chinese citizen. Sung says that the court did not follow procedures of the APA for his adjudication, thus his deportation order is invalid.

Facts Governments position was that the particular immigration statute at issue here doesnt require a hearing; therefore, we are not required to give a hearing and are not bound by the APA, because the APA only applies to rules that are required by statute.

Analysis Prof: When is a hearing necessary? If the APA does not apply, what requires a hearing? Answer: the 14th amendment Due Process clause. An immigration hearing is exactly the type of hearing the APA was meant to apply to. Prof.: The key nub of Yang Sung is that anything that is so important that a hearing is required (e.g entitlement to a license, etc.) and is a big deal, we want the strong robust protections of the APA to apply. Here even though statute does not say one gets a hearing in a particular circumstance, if the Constitution demands that you have a hearing, the APAs same protections should apply there

31 as well. We assume that Congress intended for those robust protections of the APA to also apply. The APA was going to apply one set of rules to all hearings. If due process guarantees right to hearing, there would be a huge hole in the APA if it did not allow hearing. After Yang Sung, we know that APA applies to all things where a hearing is guaranteed under the APA or the constitution.

ADJUDICATIONS APA STANDARDS AND OTHER LAWS

Dickinson v. Zurko (p.264) (Purpose of the APA & standard of review)

Facts: Zurko applied for a patent & the Patent & Trademark Office (PTO) denied the application. Zurko appealed to Fed. Circuit Court, which ruled in favor of Zurko by using a stricter standard for reviewing the agencys decision. PTO said that Fed. Cir. Ct should only review to see if decision was arbitrary & capricious (from APA 706) Zurko claims that standard of review should be clearly erroneous which comes from settled case law Issue of case: whether standards for judicial review follow APA or case law (pre-APA law) APA 706- arbitrary & capricious More deferential standard to agencies less strict standard agency has more latitude Ex of acting arbitrary & capricious: if they make decisions by flipping a coin Case laws clearly erroneous Less deferential standard to agencies

32 Stricter standard Could be wrong, but not acting arbitrarily or capriciously, if you followed procedure and made a thoughtful decision Easier to be clearly wrong than arbitrary or capricious

When agency hears the facts, makes determination, & decision is subject to judicial review by a court Rule: Agencies can make decisions in the form of rule making & judicial branch can review this (in most instances) How does question come before the court? APA 706 supplies judicial review standards for agency decision making (including arbitrary & capricious) APA 559 sets up conflict & is an exception that states the APA is not limiting or repealing additional requirements already recognized by law Sets up question of whether clearly erroneous is an extra requirement & whether it is recognized by law? It is an additional requirement b/c imposes an additional restriction on the agencys decision making So accepted that it is an additional requirement so question is whether is recognized by law.. Majority Opinion (Breyer): 706 arbitrary & capricious standard applies b/c of uncertainty in case laws clearly erroneous standard, it is not recognized by law & it does not override the purpose of the APA which is to create a uniform standard Supreme Court will not override principal purpose of APA to set a uniform standard of review unless it is clearly recognized by law If it is recognized by law, then that additional requirement would supersede the arbitrary & capricious standard set forth by 706 The goal of the APA was to bring about uniformity & allowing unsettled common law standard to govern on the basis of 559 would create different standards of review Dissent: Point of APA was to raise the standard of review for everybody, not just uniformity, to correct those agencies that had suboptimal procedures

33 Here for the sake of consistency, the Court is choosing the lower standard & hence lifting a constraint on agency action

**KEY TAKE AWAY**: Supreme Court recognizes that one of the great hallmarks of the APA is uniformity & therefore terms like recognized by law should be interpreted to promote uniformity When interpreting language of APA, including terms like recognized by law, read them as consistent with that overarching purpose of uniformity Understand the text through the purpose of the APA Arbitrary & capricious is the appropriate standard of review unless it is clearly displaced by established/settled law or practice, even if it is lowering standard of review Clear example where SCt says arbitrary & capricious is more deferential & less strict for the agencies than clearly erroneous. Clearly erroneous is less deferential and a step lower than arbitrary & capricious

Question to the Class: Did the court get it right?? Those who say the Dissent is correct The APA used as a gap filler, filling in where they had defects & strengthening it If congress wanted total uniformity then 559 would be pointless statutory interpretation, 559 says recognized by law so many different areas of Admin Law then why mess with the existing standard then the uniformity The Majority is correct: APA created to make sure that all agencies were following the same set of constraints, and Common law standard variably applied provides insufficient guidance to litigants before the agency

34 ADJUDICATIONS HEARINGS ON THE RECORD REQUIRED

Seacoast Anti-Pollution League v. Costle (p.325) (554(a) of APA & definition)

Facts: Private company wants to obtain permit for exemption from a statutory rule that says you cant discharge a pollutant into the water. In this case wanted permission to discharge pollutant, superheated water, using a one time through system in order to remove waste heat. B/c company wasnt clear that system they had would satisfy agencys requirements, they filed for permit & exemption under 316 316 exemption company needed to show that EPA standard was more stringent than necessary for a balanced indigenous population of wildlife and structure was best available technology most environmentally friendly available technology statute says only get an exemption after youve had a hearing, but problem is that there were additional findings submitted but no hearing after these findings were submitted claims hearing isnt consistent with requirements of the APA, didnt conform to procedural requirements of APA APA 554 says APA applies in every case where an adjudication takes place which is on the record Question: whether APA applies when statute requires a hearing but no mention of it being on the record, given that the text of the APA makes it clear that APA rules apply where a hearing is required to be determined on the record 554- tells us when the APA applies Compare Wong Sung v. McGrath (holding that the APA applies even where the statute does not call for a hearing in cases where the Constitution demands a hearing since Congress must have wanted APAs strict rules to apply when not just a mere statute but the Constitution necessitates a hearing ) APA says only time when rules apply is if hearing is on the record APA applies b/c 554 says that APA applies in every case of adjudication, and a record is necessary to facilitate judicial review & if it is not on the record then it is very hard to be able to establish this review with nothing to look at How do we get past the text on the record Assume that when a statute refers to a hearing, it refers to it as a hearing on the record b/c need to have judicial review There can not be an agency whose decisions are not subject to judicial review b/c the hearing is not on the record

35 There is a rebuttable presumption that any time the statute refers to a hearing it is referring to a hearing on the record; the magic words on the record are not needed Circuit Court concluded that you could assume that a hearing is meant to be on the record, unless there is some contrary evidence, b/c the decision is subject to judicial review the decision depends on highly fact specific determinations The company is looking for an exemption which turns on whether standard was more stringent necessary & whether they were using the best available technology; both of which are fact based inquiry Therefore we need to assume that it is on the record The hearing determines individual rights and not simply broad policy APA is big set of laws meant to govern administrative proceedings, anytime you go before an agency youre going to wonder what set of rules are we subject to, ISSUE IS WHETHER THE APA APPLIES IN THE FIRST PLACE --> THE APA TELLS YOU WHEN IT APPLIES. APA says only apply in certain circumstances Ex: when the adjudication going on is required by statute; ie: a hearing is required by statute Wong Sung Even though APA says only applies when hearing required by statute, also applies when hearing required by constitution Such as deportation hearing which involves human liberty & happiness Meets spirit of the APA Seacoast Even if the APA says it only applies when statute says hearing on the record, if statute just says hearing, court concluded it is assumed that the statute meant on the record When the statute says hearing on the record, assume hearing means on the record, doesnt make any sense to not have it on the record when the following 3 circumstances apply (1) In Seacoast court concluded that you could assume that a hearing was meant to be on the record b/c hearing implies that there is going to be some answer that is subject to judicial review This is the type of decision that is subject to judicial review (2) Decision depends on highly fact specific determinations

36 (3) Hearing affects individual rights, not policy determinations, when this factor is present then assume it is on the record When these 3 things are true, there is a rebuttable presumption that a hearing means on the record as well Even though the APA says it will only apply when a hearing is on the record, assume it applies even in those cases where the text refers to a hearing, assume its on the record What if the APA said a hearing before a neutral judge and statute says a hearing, should the APA apply? ASK: Does it make sense to have a hearing without a neutral judge? If this is the type of adjudication where individual rights are at stake, probably want a neutral judge to arbitrate that dispute, so assume that APA intended to apply even in those cases where the statute simply said hearing WHAT TO KNOW APA tells you that its rules apply in certain circumstances ex: hearings on the record, and then theres a statute that says only make a determination after a hearing (could even just say you present evidence before a neutral judge, etc.. doesnt have to use the word hearing) Seacoast & Wong Sung say that APAs rules apply in circumstances where the specific language of hearing is not used, some other scenario can get you a hearing & have to reason why.. Talk about uniformity Do APAs rules apply in the first place Each put forward specific rules as to how the APAs rules apply

ADJUDICATIONS ADJUDICATION DECISIONS MUST SET FORTH REASONS

Armstrong v. Commodities Futures Trading Commission

Facts I. Armstrong, a commodities advisor, had some companies that ran into trouble with the Commodities Futures Trading Commission (CFTC) because of various violations including failure to disclose. Armstrongs company is not ultimately liable, so the question is if he can be held individually liable, which will require a highly fact specific determination. II. An ALJ issued an adverse decision for him. The ALJ looked at the evidence and concluded that Armstrong was individually liable (which is basically a trial determination). The Commission adopted the opinion, although stating they had reservations about it. Nonetheless, the Commission substantially agrees with the ALJs findings. Statute I. Armstrong argues that if the Commission does not fully adopt the ALJs opinion, then it has to give its own reasons. Pursuant to 557(c) of the APA, when an agency makes a decision it has to set forth its reasons and factual findings on essentially every disputed question of law and fact. Holding The circuit court interprets 557(c) by saying that an agency in reviewing an ALJ decision CANNOT say it is substantially correct. I. By saying the ALJs decision is substantially correct the agency was basically summarily affirming the decision below. Summary affirmation is permissible, but saying substantially correct is inadequate because it leaves too much guesswork regarding what the agency adopted.

38 II. The basic rationale for the courts decision is that unless we know exactly what the agency is thinking it makes it very difficult for a federal court to engage in proper, adequate, meaningful judicial review of the agencys decision. If this were the standard, it would invite a more intrusive role for the court. III. The court interprets 557(c) of the APA as stating the following: (1) Administrative agencies must set forth their reasons on every question of law or fact.
When you are setting forth your reasons, you have to provide enough clarity to facilitate judicial review.

39

ADJUDICATIONS ONE WHO HEARS MUST DECIDE, BUT NO PROBING MENTAL PROCESSES GOVERNMENT MUST PROVIDE NOTICE

Morgan I
Facts I. Fifty suits were consolidated for trial and were brought to restrain the enforcement of an order by the Secretary of Agriculture fixing the maximum rates to be charged by market agencies for buying and selling livestock in Kansas City. Issue II. Section 310 of the Packers and Stockyards Act calls for a full hearing before determining the maximum rates for buying and selling livestock. The Court is trying to figure out what a full hearing consists of. III. 2 minor questions: I. There was an intelligible principle question. Like in Whitman v. American Trucking delegation is ok. II. Was it ok to consolidate these 50 suits? a. Supreme Court said this was not a problem. Analysis IV. Secretary did not hear any of the evidence. Instead the following process ensued:

40 1. Examiner - Initially an examiner in the ALJ admits testimony, essentially performed the role of a trial judge. The examiner that does this handles a huge number of investigations. The examiner then stepped aside. 2. Acting secretary Then the acting secretary hears all oral arguments. 3. Secretary Finally, the new secretary comes along and instead of holding the hearings all over again, he looks through documents and makes a decision. Holding V. The principle of the one who hears must decide. The Court says that if the Secretary of Agriculture has too many things on his plate he can delegate to the Acting Secretary as long as the Acting Secretary hears the evidence and makes decision. Here, the Secretary of Agriculture did not delegate the decision making. o Within an agency you cannot divorce responsibilities. You can delegate both of the responsibilities (hearing the evidence and adjudicating) completely, but you CANNOT split up responsibilities of hearing the evidence and making the final adjudication.

Morgan II
First Issue I. The Supreme Court takes a step back. It does not renounce the principle the one who hears must decide, but the Court says its not their job to probe into the mental processes of the Secretary. o The Secretary of Agriculture testified that he was overwhelmed. He reviewed the reports of the Acting Secretary. The Supreme Court says that if he says that he did adequate consultation then that is fine. The Court will not inquire into the Secretarys mental processes.

41 o This puts a veil over the one who hears must decide because the Court is saying that though they are requiring to the one who hears to decide, they will not look at how he did it. Second Issue I. Whether or not Petitioners received a full hearing? Holding I. A full hearing under the statute provides for proper notice and opportunity to be heard. The Court says you have to give notice of the complaint against these individual litigants. We will not look at the mental processes of what the Secretary did, but we know what a full hearing looks like in an ordinary adjudication. That requires the government to set forth the basis of its complaint, to provide notice to its opponent. VI. Why is it okay that the cases be consolidated and that each petitioner did not get an individual hearing? o (Pre-APA) - Individual adjudications are appropriate when there are some common issues of law and fact. A full hearing is still possible without individualizing each hearing.

42

ADJUDICATIONS AGENCY MAY REQUIRE QUALITY STANDARDS FOR ADJUDICATORS

Nash v. Bowen
Facts I. The Social Security Administration (SSA) in 1975 had a backlog of 100,000 cases and the director decided upon a series of reforms to improve the situation. A veteran ALJ brought suit because he claimed all of the reforms impaired the ALJs right to decisional independence. II. Reforms: 1. Peer review program an outside committee that comes to in to says what the best practices are (i.e. a typical hearing should last 2 days); and provide guidance on how things should be done.

43 2. Production quotas The SSA required that the ALJ render a certain number of decisions a month. If they dont meet the quota there will be penalties. 3. Rate of reversal the ALJ had to maintain a fixed percentage of reversals in favor of the SSA. An average 50% reversal rate for all ALJs is acceptable. Issue I. Whether efforts to improve the quality and efficiency of the work of ALJs impaired their asserted right to "decisional independence" under the APA 551/Do these types of reforms interfere with the judicial autonomy of the ALJs? Holding II. Court said that the Secretarys efforts to promote quality and consistency do not infringe upon the ALJs decisional independence. Though the rate of reversal is not an undue influence it is a proxy for consistent decisions, which the agencies are allowed to do. Peer review, setting desired reversal rates, and production quotes are all fine.

ADJUDICATIONS AGENCY MAY CONCLUDE ACTIVITY IS ILLEGAL, THEN ADJUDICATE

FTC v. Cement Institute

Facts I. FTC issues a cease and desist order against 74 corporations that manufacture and sell cement. The FTC complains that the 74 Cement companies are engaging in horizontal price fixing by agreeing to identical services for identical prices, a per se antitrust violation . Issue

44 I. The respondents legal objection is that the FTC is biased, so the respondents ask the FTC to disqualify itself from judging the issues. o The FTC had investigated this exact problem, put out reports, testified in front of congress and said that it believed this was wrong and now they are trying to adjudicate this same claim. Holding I. The Court disagrees with respondents and concludes that investigating and adjudicating after submitting reports to Congress that posit a violation of law on a given topic is not a problem. Therefore, what the commission did was fine. o Reasoning The tagline for the Courts justification is that if the Court rules to the contrary then an investigation into bad conduct would result in immunity for that bad conduct. Congress set up this commission to see if companies/individuals were engaging in antitrust violations. If every time you investigate you then cant adjudicate, this would create a problem. Investigating would mean immunity and that is bad, so it is ok for the commission to have these 2 things.

ADJUDICATIONS AGENCY MAY MIX INVESTIGATIVE AND ADJUDICATORY FUNCTIONS

Wintrow v. Larkin
Facts I. Larkin, a physician, was performing abortions in Milwaukee, WI when abortions were criminal. Wisconsins statute authorized the State Examining Board to investigate

45 physicians and temporarily suspend their licenses for professional misconduct. The medical board said they would investigate his practice at a closed hearing where Larkin and his attorney could attend and respond to evidence. Issue I. Larkin files a federal complaint saying there was a violation of his due process rights because the examining board was mixing investigative and adjudicative functions, which is a wrongful overlap of duties. Holding I. The Court holds that for an agency to have the authority to investigate and adjudicate does not violate due process, and therefore what the examining board did was fine. II. The Court says that this case is not governed by APA because it is a state agency, but the Court refers to the APA because even the APA says that it is sometimes ok to both investigate and adjudicate. Embedded in that exemption is the presumption that we put our trust in our administrators that they can do both jobs in good faith. a. Moreover in this case during the investigation Larkins counsel was present. At the end of the decision the Court says there may be special circumstances in which this would be a violation. o APA Section 554(d) an employee or agent may not participate or advise in the decision. The APA specifically says the person involved in the investigation cannot be involved in the adjudication. But it has an exception that says that the body composing the agency itself is exempt from this

46 ADJUDICATIONS EX PARTE COMMUNICATIONS

Portland Audubon Society v. Endangered Species Cmte.:

Background: The Endangered Species Act required a high level 7 member panel to hear and grant exemptions. The Society charged that the panel had given an exemption because the WH had improper ex parte communications with the administrators of the committee. Questions: 1. Are Committee proceedings subject to the ex part communications ban of 557(d)(1)? 2. Are ex parte communications from the President and his staff covered by that provision? 557(d)(1) is a broad provision that prohibits any ex parte communications relevant to the merits of an agency proceeding any member of the body comprising the agency or any agency employee who is or may reasonably be expected to be involved in the decisional process and any interested person outside the agency. Need 5 of 7 votes to get exemptions from the Endangered Species Act. President communicated with 1 or 2 members of the committee, and outcome would have changed depending on their votes. President says they are not outsiders subject to the ex parte statute, made three arguments: 1. Because President is the center of Exec Branch, he does not have an interest in the Committee proceedings greater than the interest of public as a whole. President says he is not interested person within its usual meaning. 2. Do not fall within terms of the statute because Presidents interest is no different from that of his subordinates on the Committee. These people are appointed to be Presidents alterego on the Committee, he should be allowed to talk to them. 3. Separation of Powers argumentthe statute prevents the President from carrying out his duty. Are any of these arguments persuasive? 2nd argument: There are plausible arguments for why President might able to talk with his alter-ego on the committee, but does that allow the President to talk with other members of the committee?

47 What does outside the agency mean? President argues that since his alter-ego is on the Committee, then he is part of the agency, and once you are in the agency, you can talk to whoever you want. o 9th Circuit rules this argument not viable. o Subordinate can speak on behalf of the President, these are the people that are supposed to make the determinations. o Adjudications meant to be decided without backroom communications.

Ms. Enyeart: Alter-ego argument most persuasive. Mr. Freyman: The purpose was to keep this agency independent from the president, similar to the special prosecutor by Nixon. Mr. Jose: This is differet from the independent prosecutor. There is no evidence that Congress set this up to be adversarial to the president. Ms. Arroyo: Can the president communicate with is committee member? Response: Not with respect to the matter at hand while the case is being adjudicated.

First argument: President does indeed have an interest in this, falling under the usual definition. President has views on the matter and an interest in the outcome.

SOP argument: Court says that an agency engaged in quasi-judicial decision-making must have constraints on presidential ex parte communications. This does not impede on the Presidents ability to carry out this duties. o Could also use Morrison approachthis is a de minimus interference.

This is the case on ex parte communications.

Castillo-Villagra v. INS
Petition asylum to INS regarding persecution by political party in Nicaragua. ALJ says they dont have a reason to be granted asylum. Their claim is a result of their own actions, and their protests of the government were causing the persecution.

48 BIA takes up the issuetakes administrative notice re: the fact of regime change and determined from that petitioners no longer threatened. Fear of persecution no longer valid. Notice how BIA uses completely different basis for decision than the ALJ. Generally speaking, they are allowed to do this. Nothing that prevents BIA from reaching different conclusion or using different grounds. Both appellate agency, and allowed to take in new determinations. Legal question: Legislative v. Adjudicative Facts: o Legislative facts are not subject to debate, they are generally accepted as true. o Suggested litmus test: Is it subject to reasonable debate? Is it external to the litigant? o Adjudicative facts are those bound up in the litigants themselves. When is it appropriate for an agency to use these facts, when must it notify when they are doing so, and when must they give you opportunity to rebut those facts?

General rule: With respect to legislative facts, agencies are allowed to take notice of them. But in administrative setting, you should at least warn the parties that you are going to use them as the basis of your decision. We assume litigant wont debate them, but it may change their strategy. May cause them to withdraw petition. Regarding opportunity to rebut, that will usually be difficult, and probably not required. But that point is a little unclear.

With respect to adjudicative facts, you MUST give notice and MUST give opportunity to litigants to challenge and rebut. Questions: sometimes there are legislative facts that will have dimension subject to debate. In those cases, you will probably be required to give opportunity to rebut.

Matter of Compean
This case is not the law, even though it was recently decided. AGs opinion. Procedurally, this case demonstrates who sits at the top of the decision-making chain. The AG is allowed to, in administering the statute, make decrees that are decisions on behalf of the agency.

49 AG essentially says we no longer will recognize ineffective assistance of counsel claims for aliens challenging deportation. Alien cant appeal to a federal court on the issue that his lawyer wasnt affective. Justification: If you dont have constitutional right to an attorney, then you cant complain under the constitution that your lawyer wasnt good enough. Didnt have rights to a lawyer in the first place. Why doesnt the Constitution require a lawyer? 6th Amendment right to attorney only applies in criminal cases, an immigration case is civil. 5th Amendment Due Process is only enforceable against the government. Not enforceable against a private attorney.

Rhetorical counter-argumentunfair to the alien. Immigrants in particular are ill-equipped to navigate the system. But how do you make the argument constitutionally? Since this case, AG Holder has reestablished the BIA precedent that right to appeal on this ground. There were 20 years of precedne ton the point that asylum seekers were entitled to this basis for appeal. How do you justify Holders position outside of BIA precedent? Cant justify on criminal grounds, this is definitely a civil proceeding. State action grounds best argument Prof can come up withwhen agencies are setting up their procedures, which are incredibly complex, the process of setting up these rules is state action. On the basis of this, agency can guarantee because of this complicated basis, we are going to provide you with a lawyer.

50

Neguise v. Holder, US 2009

Facts: Neguise is a dual national of Eritrea and Ethiopia. Neguise moved to Eritrea from Ethiopia. Forced into the military. War btwn Eritrea and Ethiopia. Neguise refused to fight. Arrested and made to spend time in prison. Released after 2 years and then conscripted/forced to be a prison guard. In his actions as prison guard he allegedly persecuted prisoners. Eventually escaped to the US. Within 1 year, as required by the provision of the Immigration and Naturalization Act (INA), Neguise applied for asylum. However, the INA contained a provision (Persecutor Bar), which stated that aliens that assisted in the persecution of others are not eligible for asylum. The provision refused to sanction asylum of people who committed the very persecutions they now wish to escape. Neguise sought asylum on the grounds that the Persecutor Bar did not disqualify him from asylum, as he was merely conscripted and forced into persecuting others. PH: BIA: Persecutor bar applies. As a matter of law (precedent on statutory interpretation) there is no exception to the persecutor bar based on duress. Fifth Circuit: Affirmed Neguises Defense: The BIA did not properly interpret the statute, and thus failed to read a duress exception. Neguises persecution of others was done under duress. The persecutor bar shouldnt apply where persecution of others was not voluntarily. APA-specific Legal Issue: (1) Whether the BIA properly interpreted the INA to have no duress exception and thus bar an alien conscripted and compelled to assist in persecution from asylum, and (2) Whether the Supreme Court had to give deference to/remand/reverse the BIAs interpretation.

51 Holding (1): Reversed. The BIA did not properly interpret the INA.

Reasons: The BIA did not exercise its agency authority to interpret the INA. Instead, the BIA incorrecly assumed that the Supreme Courts holding in Fedorenko controlled its statutory interpretation of the INA, and consequently, erroneously decided that there was no duress exception.

2 Reasons Why Fedorenko did not control the BIAs statutory interpretation of the INA: 1. Distinction in Statutory Construction of the Fedorenko Statute and the INA Fedorenko: In Fedorenko the issue was the interpretation of a statute to determine whether there was a duress exception. The statute at issue in Fedorenko stated: (a) to have assisted the enemy in persecuting civil populations of UN members, or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the UN. The Supreme Court in Fedorenko held no duress exception because the inclusion of the word voluntarily under section (b) and the failure to include voluntarily under section (a) suggests that the omission was deliberate and therefore (a) is intended to apply regardless of whether the actions were voluntary or compelled. INA: Similarly, the issue here was the interpretation of the INA to determine whether there was a duress exception. However, the Supreme Court holds that the BIA improperly relied on and misapplied Fedorenko because the INA did not have with parallel provisions one containing a duress exception and the other not containing a duress exception. 2. Distinction in the political context of the Fedorenko statute and the INA Fedorenko: Congress enacted the statute after the Holocaust, in response to the Nuremberg defense. INA: It is unclear whether Congress enacted the INA in response to the equivalent of the Nuremberg defense. TAKEAWAY: The Fedorenko statute illustrates that since Congress knows how to create a clear duress exception, the ambiguity as to whether the INA similarly does not contain duress exception suggests the Fedorenko does not control the BIAs interpretation of the INA.

52 Holding (2): Remanded to the BIA. The BIA is charged with properly interpreting the INA to resolve the ambiguity of the duress exception, in light of the fact that the court holds that Fedorenko does not control. 2 Reasons: 1. Ordinary remand rule: Where we believe agency has made an error but might get it right the second time around, then we should give them that second chance to get it right. 2. No Chevron deference to the BIAs original interpretation: A federal court may overrule an agency decision only if the statute at issue is crystal clear, and the agencys statutory interpretation is contrary to that crystal clear meaning of the statute; in contrast, if the statute at issue is ambiguous, then the federal court should defer to the agencys interpretation of that statute so long as that interpretation is reasonable

Dissent to Holding (2): Stevens: Took a different approach: Remand is a waste of time. It is our job to supply clarity to lower courts. We should just decide whether there is a duress exception or not rather than waste the BIAs time with 3 more years of hearings.

Question: Why wasnt Chevron deference accorded in this circumstance? Morse: Only reason BIA gave was reliance on Fedorenko. Might have been difference if they provided separate justification. Prof. Vignarajah: BIA did not exercise its authority to interpret the ambiguous statute. BIA believed its holding of no duress exception was dictated by Fedorenko. BIA was under the misapprehension that they did not have any flexibility to interpret. That assumption was wrong and so deference should not be accorded. Because this was an error of law, in thinking Fedorenko tied your hands, we will not give BIA deference.

Neguise went to the Supreme Court b/c it involved a major policy question. When people like Neguise apply for asylum, the adjudicative body that decides whether to grant asylum is an immigration judge.

Question: If you were on the BIA, would you allow an asylum seeker to assert a duress exception or not? Duguies: Would allow duress exception. Proof might be difficult and so some that dont deserve may assert, yet still think that it should be awarded. Franke: Would allow duress exception for specific circumstances like exception for serving in the military.

53 Jairam: Should not be a blanket duress exception. If the person is passive, exception should apply. If the party actively participated then there was a voluntary choice made. Even if consequence of refusing to act would be death then that might be better than torturing others. Enyeart: Should not be a blanket duress exception. There are varying degrees of duress. If there was a definition of duress that took in to account varying degrees Rohm: From a foreign relations stand point, the risk of accepting a war criminal into the US is so much higher than sending them back the latter is more of a neutral stance Goldberg: Should be a duress exception available but should have an extremely high standard of proof. o Prof. Vignarajah: Arent you troubled that if we allow such a standard, everyone is going to claim it? Arent you going to invite needless claims and frivolous litigation? Hanson: By denying blanket duress situation then not acknowledging the horrible situation these people have been forced into and not giving them a way to escape forcing them to return to that situation. Prof. Vignarajah: Its difficult to imagine what one would do in these circumstances, so perhaps thats a reason it should be considered.

RULEMAKING OVERVIEW Rulemaking is generally informal, unlike adjudication, which is generally formal. Rule 553 in sum: a. Gives sense of scope b. Must give notice

54 c. Must allow for comment at least in written form. Also directs when 556 and 557 should be applied instead of 553 when statute says on the record after hearing d. Need to publish within specified time frame e. All interested persons are allowed to request a rulemaking (this is essentially what happened in Mass v. EPA) Rulemaking under 553 is often referred to as notice-and-comment rulemaking this is b/c of (b) and (c) of the statute.

RELEVANT STATUTORY PROVISIONS: 553 Rulemaking: (b) General notice of proposed rule making shall be published in the Federal Register The notice shall include: (1) A statement of the time, place and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

RULEMAKING NOTICE AND COMMENT RULEMAKING APPLIES UNLESS ON THE RECORD SPECIFIED IN STATUTE

United States v. Florida East Coast Railway, US 1973

Facts: Shortage of freight cars. Interstate Commerce Committee (ICC) sought to establish rates to encourage railroad operators to return empty freight cars back to owners. The ICC

55 wanted to raise rate for railroad companies to borrow each others cars, but keep a lower rate for returning empty cars. Thinking was if rate goes up then: (1) people will not allow empty cars to sit empty, and (2) will encourage people to build more freight cars b/c can make more. ICC makes a rule under 553 rulemaking establishing these rates. ICC statute says that rule can only be made after hearing. Issue: Whether formal rulemaking rules (556 and 557) apply (as opposed to the informal rulemaking rule (553)) even though the statute does not say on the record after hearing"? Rule: Under 553(c), 556/557 apply where the statute says on the record after hearing. Holding: Opposite conclusion of Seacoast: Formal rulemaking does not apply where statute merely says hearing and does not contain the necessary language, on the record after hearing. This case does not overrule Seacoast b/c this concerns rulemaking and Seacoast concerns adjudication.

This was a practical matter formal rulemaking would have eaten up too much time and agency resources. Take-Away: In rulemaking context, the rebuttable presumption is in favor of informal rulemakingunless statute explicitly says on the record, then informal rulemaking.

In adjudication context [Seacoast] even where on the record is missing from statute, the rebuttable presumption is in favor of formal adjudication.

Florida If on the record is missing from the authorizing statute, the presumption is in favor with informal rulemaking under 553 The exception is if the statute explicitly says rulemaking must be formal under 556 and 557

Seacoast If on the record is missing from the statute, we assume that, because its adjudication, Congress wanted formal proceedings and 556 and 557 apply Unless its something like routine licensing hearings, etc.

56

Question: Why did the court reach this conclusion? Kobrin: Two separate areas. Adjudication deals with quasi-trial want to protect rights and privileges as much as possible. In adjudication, you assume that applicants are going to want the rights and privileges of a quasi-trial. Rulemaking is quasi-legislative. Whereas rulemaking is more like legislative function. o Prof. Vignarajah: But it seems like you still would want a record for a reviewing court to see why the agency settled on a rule. Both adjudication and rulemaking are subject to judicial review. Sure, individual rights arent affected, but whole industries can be affected by an agency rule. o Kobrin: Stakes are broader in the rulemaking situation. There are not individual rights at stake. There are public rights at issue. Rulemaking doesnt have same rights and privileges at stake Parsi: look at when they used formal rulemaking to decide on 90 percent peanuts in peanut butter took eight years. Muschett: Affects many more people. And formal rulemaking is incredibly arduous and takes a very long time not necessary where not high stakes. Prof. Vignarajah: In the legislative model, people have all sorts of input into the legislature, and then its decided. When you have broad rights at stake, we have concluded that a sufficiently fair way of conducting is using democratic process. Taylor: It still doesnt make sense. You have two different judicial interpretations of the same section of law. Jost: but you can interpret the same statutory language for two different purposes and come up with two different interpretations. Rubin: Difference in value of preserving judicial record. Findings of fact more important to preserve. But rule less important to preserve record.

RULEMAKING NO HARMLESS ERROR FOR PROCEDURAL VIOLATIONS OF RULEMAKING

Sugar Cane Growers Cooperative of Florida v. Ann. M. Veneman, DC 2002

Facts: Dept of Agriculture initiated payment-in-kind (PIK) program: There was a surplus of sugar and the price of sugar went down. To ensure growers didnt lose plantations, Dept came up with plan to reduce amount of sugar. If you agree not to plant more sugar then you can buy at a discount and resell some of the sugar surplus.

57 Only condition is that you dont regrow sugar. In passing the program Dept does not do notice-and-comment rulemaking. Defense: Dept of Agriculture argues: Not a rule isolated agency act Even if it was a rule, harmless error: Even if we had allowed notice-andcomment we would have reached the same conclusion o What is harmless error? Imagine that a criminal defense attorney failed to object when hearsay was given, and his client was convicted and sent to prison. In criminal context harmless error rule exists: Courts generally require you to show that you were harmed by lawyers failure in order to have criminal conviction overturned. In response to Depts arguments: The PIK program is obviously a rule. Instituting a rule that you can buy sugar at a reduced rate if you do XYZ that is a rule. Failure to engage in rulemaking is not harmless error, even where Dept argues it would have reached the same result. There cannot be harmless error if there is any uncertainty at all as to the effect of that failure. o The reason they dont want to hear that argument is they want to encourage agencies to follow the APAs rules scrupulously. Following specified procedure is what the APA is all about. If we create a harmless error rule for failing to follow procedure than we eviscerate the APA. Court reverses and remands (not going to give agency another chance). Usually we would vacate and remand under the ordinary remand rule, but the ordinary remand rule does not apply here b/c the damage has already been done and you cant quite reverse it (the sugar cane growers already replaced their sugar crop with a different crop). The horse is out of the barn, the ship has sailed, the eggs are scrambled, the milk is spilt. [Prof. Vignarajah: I imagine farmers filed suit to get damages, but Court decided it wasnt useful to give the Dept. the chance to make another rule/policy]. Take-Away: Take-Away: No such thing as harmless error when there are procedural violations of the APA. [There is a de minimis exception, but not clear what falls into that exception]. Example of concrete exception to the ordinary remand rulewhere the damage has already been done and cannot be reversed.

Holding:

Note: Whether agency is subject to notice-and-comment rulemaking depends on the statute and what it permits or does not.

58

RULEMAKING COURT MAY NOT IMPOSE PROCEDURAL REQUIRMENTS OUTSIDE APA

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., US 1978
Facts: Nuclear Regulatory Commission (NRC) had power to issue permits to authorize construction of nuclear power plant and to license operation of the completed plant. The NRC had proposed a rule to resolve questions that kept arising over and over: NRC used rulemaking to determine issue of environmental impact of nuclear power plants. In making rule, NRC allowed interested parties to submit written answers, but no discovery or cross examination. PH: Court of Appeals holds that discovery and cross examination should have been required.

Issue: Whether the APA provides the floor or the ceiling for making rules? Are the requirements of the APA the exclusive set of rules or can courts require more?

59 Holding: A court should not add requirements beyond what the APA requires even if the Court believes that requirement was implied by Congress. Theres nothing in the statute about discovery and cross-examination. When a court comes along and provides for more requirements than the bare minimum of what the Constitution requires like Miranda warnings. Its like theyre implied by the Constitution, but theyre not in the Constitution. They were created by the Court. The judicial branch was imposing additional requirements. Here, what the Court was saying was, you cant do that with the APA. If the APA doesnt set that requirement, then Courts shouldnt be able to do it.

Question: Why is the Court uncomfortable with adding requirements? ?: Uniformity issue. Need consistency in applying the APA. Do we have the same discovery requirement in immigration hearings as we do in nuclear ones? o Vignarajah: Right. If Courts are allowed to add requirements, then there will be additional requirements that apply from one circumstance to another which will create a lack of uniformity. Vetter: Ability to make rules is a delegation from Congress. Agency gets to decide because that is a Congressional deferral. o Vignarajah: Congress has delegated some substantive authority to agency. Congress has not delegated authority to courts to delegate additional requirements.

Consequence of Vermont Yankee: Vignarajah: Federal Courts do not review procedural format of agencys rulemaking; dont tinker with the procedural requirements of the APA. As a result, Federal Courts have come to play a much more prominent role in reviewing substantive outcome of agency decisions.

60

RULEMAKING FINAL RULE MUST BE LOGICAL OUTGROWTH OF NOTICE RULE

NRDC v. EPA
Facts: EPA is trying to figure out what its rules should be for pollutantsthe pollutant, in this case, is timber debris from long transfer facilities in Alaska EPA initially proposed to limit debris to a zone of deposit of one acre The Clean Water Act splits the responsibility of the State and Federal government so Alaska is initially tasked with coming up with the first set of rules, then the EPA reviews those rules to make sure that they comply with the EPAs ultimate objectives ADEC changes rule to accommodate the differences in size of transfer facilities; instead, ADEC allows LTFs to go up to each LTFs project area, not to exceed 1.5 acres. Under the original rule: if you are going to have bark and debris, you are allowed to have a zone of deposit up to 1 acre at first with up to 4 of this debris--but no more than 1 acre Would work for small producer But what about larger producers, does not make sense--there are different size of transfer facilities

61 Alaska says that this does not make sense, we will allow 1 acre, with some exceptions for larger producers--will allow up to the size of the project area EPA then adopts the ADEC standard EPA adopted the ADEC proposal Issue: What is sufficient notice when the final rule deviates from the the original rule? APA Section at Issue: 553(b)(3): The notice shall include...(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Holding: the final rule must be a logical outgrowth/reasonably anticipated from the notice and comment process. but note, the final rule does not need to be reasonably anticipated from the announced notice if it is reasonably anticipated from a comment keep in mind that this is an issue of common sense - this determination should be made on a case by case basis. The assumption is that anything in the comment is now part of the record and it is an idea out there to respond to In practice, agencies usually put this out there as a new/revised comment that the agency is now considering for adoption Discussion: NRDC argues that the original rule elicited comments that did not address the project area, and therefore, the EPA violated the notice and comment requirement under 553(b). Students arguing against the Court: Trussler: the only thing that changed was what the area should be - this is not a substantive difference Professor: it is permissible for the final rule to be different from the rule proposed for comment but what is problematic about changing the size of the project area from the proposed rule Gawronski: this project area proposal is incorporated into the original proposal - it is subsidiary to the initial proposal Students arguing for the Court:

62 Estoesta: there is a difference between a discrete cap (i.e., 1 acre, 2 acres etc) vs. project area, which is not defined; if the agency was offering a discrete area this would be acceptable because you would know what the cap is Regales: people were surprised by the rule because they had not heard about the area contemplated. They didnt know the specifics of the operations (the size of the operation; what the envt impact was going to be based on the different project area) Professor: A lot of this has to do with being able to respond to the right target, and when you have a moving target, you do not know which type of arguments you will be making. So a lot of this has to do with making sure that the public and interested parties can respond in a meaningful way. Hypothetical: what if you had an actual notice and allow interested parties/public comments. Then someone come along and makes a proposal to use a project area cap for different size facilities (not in the original notice but buried in the comments provided) and ADEC/EPA adopts. Would this still be inadequate notice? The EPA ends up adopting this project area rule even though it was not in the original notice. Would this be acceptable? Arbogast: Yes, this is reasonably anticipated; only interested parties would be responding, this would be a logical outgrowth of the proposal Cortemeglia: No, cannot anticipate if buried within thousands of comments Another student: Not reasonably anticipated if we have crazy commenters. Tweak hypo: Dept. of Transportation proposes that you must take your Toyota into the dealership for repair in 180 days. Commenters argue that 180 days is too long, others argue it is too short. CEO of GM proposes that the only way to ensure safety is to take all Toyotas off the road and ban Toyotas for two years. Suppose Dept. of Transportation accepts GMs rule as the final rule. Acceptable? Arbogast: This would not be reasonably anticipated; reasonably anticipated has to be factual inquiry. This person would propose for his own benefit. Professors Takeaway: This Toyota hypo would be acceptable. The final rule must be the logical outgrowth of the notice and comment process and it has to be reasonably anticipated. And it seems clear from NRDC and subsequent cases that everything submitted as a comment is now part of the record, regardless of who authored the comment. Sometimes agencies play it safe and re-announce the comment, but that is not necessary. Note: the fact that arguments are appearing for the first time in your brief challenging the rule might support a partys claim that this final rule was not reasonably anticipated.

63 The logical outgrowth must from the notice and comment process, not just the notice.

RULEMAKING CONCISE GENERAL STATEMENT REQUIRED, INCLUDING REBUTTALS

United States v. Nova Scotia Food Products Corp.

Facts: botulism outbreak caused by salted/smoked fish this is a case about how to properly treat fish so there is no botulism FDA promulgates a general rule that sets the temperature at which fish must be cooked without consulting scientific evidence and the decision leading to the destruction of an industry. Nova Scotia argues for a species by species rule instead of a general rule because general rule would destroy commercial viability of whitefish; Nova ignores the rule. FDA brings action to enforce their rule. Issues: What qualifies as a concise, general statement? Two issues in this case (arguments): Disclosure Concise and general statement APA Section at issue: 553(c) After the notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views or

64 arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after the opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. Holding: When putting forward a concise, general statement, an agency must respond to major objections to the rule. While it obviously does not need to respond to everyone single objection, it must respond to adequately serve the purpose of the notice and comment requirement, which are: the need for meaning judicial review the need to contemplate alternatives prevent arbitrary rule making Two categories of objections agencies must respond to in order to meet the requirement of a concise, general statement: commercial viability alternative proposals Discussion: Nova Scotia argues: FDA does not have authority to enact the regulation FDA improperly relied upon undisclosed evidence in promulgating the regulation and because it is not supported by the administrative record there was no adequate statement setting forth the basis of the Disclosure requirement: Court says that you must disclose data (not limited to scientific data) unless you have some reason to conceal the data. Whenever you rely on something that is outside the record, then that is a problem. This is sort of an outgrowth of the 553 notice requirement, but not officially tethered to that. Jose: when you rely on something outside the record, you should put it up for people to comment on--it should be part of the comment record Adequate statement requirement: You have to address major objections that are raised during the notice and comment process

65 we have to get a sense of the major issues that the agency wrestled with. if there was an objection that was raised about the commercial viability of the fish industry, the agency must at least explain why it did not find counter arguments to a rule compelling. the purpose of this requirement is to make sure that the agency contemplated this argument and didnt just ignore it; moreover, federal courts cannot conduct meaningful review without knowing why the agency rejected an argument. Concise and general statement includes a rebuttal of major objection So therefore, commercial viability and alternative proposals are two categories of issues that must be addressed by the agency in order to conform to the APAs concise and general statement requirement. You dont need to address every trivial proposal under Nova Scotia.

66

RULEMAKING CONCISE GENERAL STATEMENT MUST RELATE RULE TO STATUTORY PRINCIPLES/GUIDELINES

Independent U.S. Tanker Owners Committee v. Dole

Facts: US is trying to compete with foreign ships Congress decides to subsidize ships that are competing with foreign ships Eventually, Congress realizes this is still not working and want to try to come up with a way to get those ships to also provide capacity in the domestic market So Congress gets some of the ships to go domestic, but to keep it fair for other domestic ships, Congress requires the subsidized foreign ships to return some of their funding. Issue: what qualifies as a concise and general statement? challenge on the basis of the notice and requirement APA Section at issue: 553(c) After the notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after the opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. Holding: the agency must explain how the final rule serves the purpose and goals of the statute. Discussion:

67 This is a compendium case to Nova Scotia. Court held that the payback rule here did not connect to the statutory objectives. Why is the new rule not connected here? Peters: the goals considered by the secretary did not seem to be contemplated by the statute Professor: so the analysis you should go through is to first find out what the original statutory objectives are (via legislative history, preamble, context). Next, consider the reasons the agency promulgated the rule. If the objectives are apparently different, then the agency must explain how its reasons can be derived from or are implicit in the original statutory objectives. Judge Bork says that if market objectives are important, then they must correspond or be connected to the objective of the statute (maintain a viable fleet); If the agency had said it needs market efficiency to maintain a viable fleet, then that might be adequately connected, but here, the agency did not explain how market efficiency is implicit or derived from the original statutory objectives.

68

RULEMAKING ERRORS IN THE FINAL RULE

Utility Solid Waste Activities Group v. Environmental Protection Agency

Facts: PCB is a carcinogenic, but useful. EPA promulgates rule that sets the acceptable level for PCB clean up; set standard based on the amount of PCB on the surface after cleanup. EPA then says that it should have used a different standard. Instead, should have measured standard by the PCB contents that spilled, rather than by the surface on which the PCB was spilled. EPA argued that this was a clerical, technical error and so did not go through notice and comment process again. Issue: Does a technical error in the final rule require the agency to provide notice of another round of notice and comment rulemaking? APA Section at Issue: 553(b)(B): This subsection does not apply...(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest. Holding: Agencys inherent authority to correct technical corrections in the adjudicatory context does not carry over to the rule making context. In rule making context, the agency may forego the notice and comment process only if it provides actual notice or personally serves those named (Internet publication is insufficient); or It is impracticable, unnecessary, or contrary to public interest Discussion: Court said that was no such thing as a technical error in this context:

69 This is not an adjudication. Although there is precedent that adjudicative agencies can fix clerical errors, this case is dealing with rule making. in the rule making context, if you make a clerical error, you only have a couple of options: you can fix it by notice and comment process again, OR there is a specified protocol for how you can get around the notice and comment requirement; that protocol is the good cause shown requirement in 553(b)(B). this requires impracticable, unnecessary, and contrary to public interest. impracticable: a situation is impracticable when an agency finds that due and timely execution of its functions would be impeded by the notice requirement. showing that rule needed for safety/threat to the environment rationale is similar to public interest prong unnecessary: notice and comment process is unnecessary in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public. Professor: although, the fact that someone is suing usually shows that the determination is significant to and impacts someone. contrary to public interest: good cause may be shown if the interest of the public would be defeated by any requirement of advance notice.

70

RULEMAKING THROUGH ADJUDICATION AGENCY MUST GIVE CLEAR RATIONALES FOR DECISION

SEC v. Chenery
Facts: 1935 Holding Company Act several officers, directors, and shareholders of federal trying to reorganize company so would get preferred stock and would someday trade for common stock Immediately following stock market crash govt knows energy companies engaging in suspicious activities, so need to subject to some scrutiny. when energy companies reorganize, need to submit new form, and will approve or deny proposed reorganization plan one company plans for management of old company to buy preferred stock and when convert to new company, use preferred stock to their advantage when switch to common stock management is trying to maintain some degree of control over future company and SEC is skeptical of this proposed reorganization Chenery 1 first time goes to SCOTUS core principles 1. Court cannot provide or substitute its own reasoning for why a given agency decision was correct applies broadly 2. The court must uphold the no guesswork rule, requiring the agency to sufficiently explain its own rationale for its decision not uncommon for court to invoke Chenery I to say I don't get your explanation to an agency agency must be sufficiently clear for court to be able to decide if is right or wrong in immigration context, was once very popular for federal judges to scold BIA and say I have no idea why you reached this conclusion not uncommon for admin law exams to have an incoherent reasoning, and you should say not only that it's a bad reason, but cite Chenery I for no guesswork rule Chris Dahl asks about Chenery I court offering subtle guidance as to how agency should handle courts routinely do this dicta is this appropriate? sometimes inefficient not to just say something even if not directly before the court as a general matter, courts can say whatever they want in dicta and will do this in many fields. In power of court, in rare cases, to convert dicta into holding if court provides a specific directive RULEMAKING THROUGH ADJUDICATION

71 RETROACTIVE RULEMAKING

Chenery II
agency reached same decision but provided some different reasons court seems pretty satisfied with reasons for agency's correction embedded question of retroactivity Should a ruling of this nature be retroactive? big question is whether agencies setting up rule as to whether management can have vested interest in stock during reorganization if coming up with policy for this are you constrained to announce policy only via rule since affects all, or can announce it via adjudication as well? Ordinarily, the Chenery issue would be done through rulemaking can agency do it through adjudication? Yes agency can choose how to operate. Agencies can use adjudication or rulemaking as preferred process for policy decisions and apply that rule retroactively. It may not impose fines or liability for retroactive rules. going to apply policy to party before us context of adjudication, and can say disapprove because management has vested interest in future company applying policy decision to particular action not fining or imposing liability modest context in which are retroactively applying a rule advocates here have tried to dress up as big retroactivity controversy, but isn't really that big of a deal should the agency take a particular adjudication rule and apply it to everyone? Argument against decision tough for future parties to anticipate and make decisions based on rule because of retroactivity agencies are supposed to come up with rules that affect lots of people, should do that in uniform way in advance so can conform conduct, and can present their own particular facts shouldn't give agency carte blanche argument for decision this is what happens in common law adjudications all the time can argue that your facts are different so not bound by announced rule not precluded from bringing argument next time around rule is mainly legal in character, and agency is learning a lot from case by case adjudications, so trust to choose what best process is ultimately SCOTUS says have to defer to agencies where congress has not tied hands and said have to do one or other court emphasizes fact that type of thing that involves case by case adjucation need to look at particulars of plan, and dealing with problem of first impression but let agency decide how to do it may change minds later

72 agencies are ultimately setting policy, and when do so, have great flexibility in how they do it ultimate finding

Bell Aerospace
company refused to bargain with buyers, claiming were otuside of the NLRA NLRB disagreed old rule if you were a managerial employee, not under NLRA, employer doesn't have to let you unionize new rule arguable have to show are type of employee that if unionize have conflict of interest, and arguable whether a buyer was considered management The agency may take an old rule and modify it substantially through adjudication, applying it to the case at hand new groups can argue that they get the protections of the NLRA question BA appeals, saying NLRB should have made rule, not decided via adjudication SCOTUS disagrees with lower court, which says that because of Chenery NLRB had to go through rulemaking SCOTUS says court misunderstood holding in Chenery NLRB was notorious for using case by case adjudication so therefore relatively nimble in response but composition of NLRB would change by administration, which changed the rules SCOTUS in position to say not okay that constantly changing mind and some of this should be via rulemaking Judge Friendly (on lower court) says understand generally have freedom to do this, but can't just flip flop and modify rules SCOTUS says in this context have lots of different types of buyers and some will not be candidates for unionization, and some will be can't have agency try to make universal rule, because would be so general as to be meaningless also scenario where not imposing liability or damages, so easier to justify case by case adjudication and even retroactivity to cases before us genuine debate! Rare for Judge Friendly to be overruled except in very rare circumstances (where not highly factbound, there are penalties, there was reliance etc.) where would not be appropriate for NLRB to do via adjudication and would need to do a rule

Shaws Supermarket
1. Facts

73 The NLRB found that the vice-president of Shaw violated the NLRA through some comments that he made to the employees before they voted on whether to unionize. The NLRA prohibits speech that would indicate the potential for retaliatory action if the employees unionize. The NLRA generally requires an election to determine if the employees want to unionize. The VP made several statements that indicated that if the employees unionized they would start bargaining from minimum wage and workers compensation (bargaining from scratch) instead of from the higher wages that they enjoyed prior to unionization. The VP also stated that the first contract is usually the most difficult to resolve and could take up to a year. The supposed threat is that if the employees unionize, they will be bargaining from scratch. This kind of statement appeared to be allowed under prior NLRB cases as part of a general account of the postunionization bargaining process.

2. Issues If an agency departs from its prior opinion/rule, must the ground for that departure be clearly set forth so that the reviewing court may understand the basis of the agency action?

3. Holding Yes. As a general matter, agencies can change their mind regarding policies and can enact them retroactively but there should be an explanation as to why the agency changed the rule. Absent that clear explanation, the court would not be able to figure out the reasons behind the change.

4. Discussion NLRB believed that the speech before the election basically amounted to a threat. Shaw responded that this is not an unfair practice because it doesnt violate the NLRB guidance, and that NLRB cannot suddenly depart from its prior decisions. The NLRB has accepted statements that were similar to those made by Shaws in at least 8 prior decisions.

74 Because the NLRB has accepted similar or worse statements in past decisions, its current decision constitutes a reversal of its position. The agency is allowed to switch its position, but it must clearly state the reason for changing its position to allow for judicial review. Wrobel companies rely on the rules set out by the NLRB and they act in accordance with these decisions. Arroyo the agency can change its position but it must provide the reason for its changed decision. Zhang the reason the board should be required to give their reason for changing their decision is to prevent arbitrary decision making. Taylor when the parties are trying to distinguish their decision from prior decisions they should be entitled to take that position. potential that this gives too much power to the agency. o If the agency is trying to distinguish the facts from prior decisions, that position should be provided a high degree of deference. Smith When you announce a rule of regularity, that agencies can change their minds but they must provide the reasons for doing so, everyone will be on notice that they may be operating in a grey area, but they will be entitled to argue that they are not operating in a grey area and the burden will be on the agency to explain its decision. as a general matter, agencies can change their mind and they can take those new policies and apply them retroactively even to parties that were apparently governed by prior decisions. rule. all that is required is an explanation of why the agency changed the o This requires a recognition that the rule has changed and an explanation of the reasons. Absent this explanation, a court cant figure out if the agency is acting arbitrarily.

Epilepsy Foundation
EF challenged NLRB decision Section 7 of NLRA - Winegarden rule entitles union employee to have union rep present at any investigative interview or meeting where person believes discipline may happen

75 pro-labor rule does the Weingarten rule apply to nonunion employees NLRB goes back and forth, and at time of case, decided does not apply here, nonunion employee called into disciplinary meeting and and requested another employee be there, and supervisor refused to allow board changed its mind and decided rule does apply to nonunion employees court says is okay as long as statute is ambiguous enough to allow two interpretations even when have firm rule in place, can a few years later change mind, as long as interpreting statute that gives room to choose between two when statute is ambiguous, can change mind one limit that EF and Georgetown hospital start to flesh out, dealing with retroactivity can't apply this retroactively this company ends up being fined for violating newly expanded Winegarden rule, and court agrees with company that this is not acceptable because actual showing of reliance when firmly set rule, and people rely, can't retroactively apply and impose damages not like a three part test, not set in stone, can argue that retroactivity is okay because rule wasn't set in stone and wasn't reliance, or not imposing damages An agency may not retroactively apply a new rule when: 1) the rule is firmly in place, 2)there is actual reliance on the old rule, 3) it imposes monetary damages and liability

Bowen v. Georgetown University Hospital

Facts: Hospitals receive reimbursement from the federal government because they have Medicare patients under their care HHS is responsible for making sure that hospital receives correct amount Medicare Act authorizes Secretary to make appropriate, corrective retroactive adjustments to make sure hospital is getting right amount. HHS issues new reimbursement schedule Court strikes it down, holds that agency must go through notice and comment rulemaking Instead of appealing, Secretary decides to use previous schedule and initiates notice and comment rulemaking After notice and comment period, the agency issues exactly the same schedule (as the court struck down) and applies it retroactively for two years.

Question: Is an agency allowed to retroactively apply a rule promulgated through notice and comment rulemaking?

76 Holding: No, agencies are generally not allowed to engage in retroactive rulemaking unless they have explicit statutory authorization from Congress. But didnt the authorizing statute allow for retroactive adjustments? (42 U.S.C. 1395x(1) (A): such regulations shall provide provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive) Courts interpretation: only certain kinds of rules can be retroactively applied. Retroactive application only appropriate in case-by-case adjudicatory setting. Statutory language refers to a specific provider of services o Suggests individualized determinations for retroactive applicability. Stretching that retroactive adjustment power to EVERYONE through rulemaking is stretching the retroactivity power too far. (The language refers to an adjudicative determination for retroactivity, not a rulemaking one). Generally, there is a presumption against retroactive application of rule. o Congress can authorize retroactive application because: Democratically accountable People are on notice o Most retroactive applicability language will be read to refer to adjudication. Concurring Opinion (Scalia): o APA defines what a rule is - things that have future effect. General presumption against retroactive rulemaking is not something the Court just fashioned. Its consistent with what a rule is defined to be under the APA. If Congress wants to change that, it has to do so clearly and unequivocally. Clear Statement Rule- Court has asked Congress to make a clear statement of intention in one context or another. Absent that clear statement, Court will assume the default. In this case, the default is the presumption against retroactive rulemaking.

Class Discussion Taylor: Whats so bad about retroactive rulemaking, why does adjudication get the presumption? Gawronski: Reliance interest. People had been relying on the old rule, so kicking that reliance out form underneath them is unfair. Professor: But retroactive rulemaking is allowed if Congress authorizes it, so dont you also have that problem even if the retroactive rulemaking is allowed? Gawronski: Congress is elected. At least you can change the system when Congress does the retroactive playing around. You cant change anything when an agency does it. Professor: Congress doing it puts people on notice and flags the issue. Didnt Congress do exactly that with 1395? Enyeart: It is burdensome for everyone to think that this could be applied to them. The statute

77 serves as a rainy day fund for something that may not happen. Bellum: Are there many examples where congress has expressly authorized retroactive rulemaking? Professor: Routinely agencies will ask Congress to authorize their power of retroactive rulemaking. This case sets the default rule: if you need authorization, ask Congress for it. Knoll: If the general rule is that retroactive application is already allowed in the adjudication context, doesnt the courts interpretation render the statutory language merely surplussage? Professor (reiterating Ms. Knolls assertion): If Congress included this text in the statute, doesnt it suggest that they were authorizing retroactive rulemaking? Hanson: Congress was attempting to be explicit in this case. Puts individual providers on notice. Gozhansky: Another possible interpretation is that this language was included to provide parameters for when adjudication could result in a retroactive adjustment Professor: We have studied cases that say that there is no constraint of APA or Constitution preventing retroactive application. An agency still has to be authorized in the first place to conduct adjudications. This could be an explicit mandate from congress to conduct adjudication. Professor: Parties may be able to argue due process violation, due process may serve as a limit. Cortemeglia comment: Agencies are not despotic units of government. The President is politically accountable. Professor: Congress is arguably more democratically accountable than the President. CONCLUSION: All we have here is a general presumption that retroactive rulemaking is not authorized unless Congress says so. The legislative history in this case makes clear that Congress contemplated this possibility and specifically envisioned retroactive application in the adjudicative context only. Congress was not oblivious to concerns about retroactive application. They fashioned the statute to authorize it in one context and not another. Based on these considerations, Congress has only authorized retroactive application in case-by-case adjudication.

78

RULEMAKING AGENCY REFUSAL TO MAKE RULES

Professional Pilots Federation v. FAA

Facts: Age 60 rule: Time-honored rule at FAA that once a pilot turns 60 s/he must retire in the interest of safety. PPF and 2 individual pilots want to review two decisions by FAA FAA decision to decline to engage in rulemaking (APA 553(e) each agency to give an interested person the right to petition for the issuance, amendment or repeal of a rule) over urging of PPF. PPF objects to agencys decision to not even start the process Decision to extend Age 60 rule to commuter airlines PPF argues that rule is arbitrary given state of knowledge now vs. 1959, the year rule was promulgated.

Questions: 1. What is the appropriate standard of review when the agency refuses to engage in notice and comment rulemaking? 2. Did the reasons given by FAA for not engaging in rulemaking surpass the arbitrary and capricious standard Holding: Standard of review for federal court in deciding whether or not an agency properly declined an opportunity for rulemaking- Arbitrary and Capricious Standard. FAA wanted an even more deferential standard, even though arbitrary and capricious is the most deferential standard available. FAAs argument: We cannot be expected to engage in rulemaking every time an interested person makes a request. The court should not second guess the agency. o Court rejects this argument Arbitrary and capricious is the appropriate standard for a federal court in deciding whether or not an agency properly declined to engage in rulemaking More deferential standard only appropriate if the decision to decline in rulemaking is based on some pragmatic consideration such as budget or personnel. That justification will be accorded almost absolute deference. Assumes that administrator will act in good faith. Courts rationale: if Congress really wants agency to take particular action, it will provide additional appropriation. FAA decisions to decline to engage in rulemaking and to extend rule were not arbitrary and capricious in violation of APA. Agency cites insufficient data to show that there is no safety issue beyond age 60. Court finds this reasoning legitimate. It is expected that agency gives a reasoned explanation for their decision, that they will

79 respond to significant objections, and they will consider reasonable alternatives, otherwise the agencys declination of rulemaking is arbitrary and capricious. Imposes the same expectations on agency AS IF agency had gone through the entirety of notice and comment rulemaking (its satisfying the same test).

Class Discussion:

Professor: Did the FAA get it right, should they have engaged in rulemaking? Vetter: FAA had the right to make that determination; everything they have seen since rule was promulgated did not convince them to rescind. Professor: What have they seen? Vetter: Interest in protecting public safety is great enough to maintain status quo. Jairam: If they dont have any data, why not err on the side of caution and bring it down to age 50 or 40? Choice of 60 is not backed up by any data. Agency did not take opportunity to do a test program. Hildreth: Theres certainly intuitive appeal to the idea that you dont conduct a natural experiment by increasing the age and seeing what happens. But there are easy ways to test, without endangering lives, whether pilots of 60 can pilot commuter flights. You can gather data without increasing danger. Knoll: What if you had it the other way around and there was data that 55 was dangerous but the FAA still refused to change the rule because it didnt have the data or motivation to do so? Professor (via Estoesta) When a rule becomes entrenched, it becomes hard as hell to kick it out of there. Court acknowledges there is a Catch-22 in not generating data because the agency refuses to open up rulemaking, but data collection is simply too problematic. Mackenzie: There has to be some line. Otherwise the limit could be age 90. FAA needs leeway to draw line somewhere. Professor: Maybe there is intuitive appeal to not engaging in big experiment to see how older pilots do but comments have some force what if limit is set at 35? Also, decision was made in the 1940s. Since then there is new science to refute basis for initial decision. FAA can look at exceptions cargo planes, commuter planes. There are scenarios where data can be obtained. It is not an impossible dilemma. If FAA had rule of age 35 for mandatory retirement and agency said cannot obtain data to justify rule change, would you still defer? Mackenzie: At age 60, there is greater likelihood that population as a whole could have heart attacks or strokes. Agency needs flexibility to have this brightline rule. Jose: Wouldnt more appropriate attack be against rule itself? Professor: We will explore this after spring break. Some might say that they cant change rule because they dont have enough data. But even if we wanted to challenge rule, we need to gather enough data and that is what notice and comment period would permit you to do.

80 Ordelt: Hilton study found downward trend there is data there. Regales: There is enough data to show that the human body starts to break down in substantial ways. Professor: Sounds like substantive inquiry where I would generally defer to agency; not challenging agencys substantive decision. FAA put notice out that we are thinking of having a rulemaking but then decided not to. How is it not arbitrary to say that data from 40 years ago justifies maintenance of the age 60 rule? Knoll: What if there were data that accidents increased at 55? Professor: Would it be arbitrary and capricious to not engage in a rulemaking in that case? When agency instituted first rule, it had evidence to support it. Unless they have evidence that strongly contests initial position. In practice, if original rule is validated and ultimately becomes entrenched, it is very hard to displace that rule. The decision not to appeal or amend rule is generally given great deference to the agency. Although the court acknowledges Catch 22, alternatives for generating data are too problematic for overturning on that basis alone. This case is important in that it establishes the arbitrary and capricious standard for reviewing an agency decision to decline to engage in rulemaking. It also tells you that the courts expect that the agency will give a reasoned explanation for their decision, that it will respond to significant and relevant considerations raised, and it will consider reasonable alternatives. Recall the requirements for notice and comment rulemaking. Agencies have to respond to objections raised when reaching final conclusion. Here the court is imposing the same type of requirement on agency in their decision to decline to engage in rulemaking.

81

RULEMAKING EX PARTE COMMUNICATIONS IN RULEMAKING

HBO v. FCC
Facts: Battle between HBO and FCC Allegation that FCC engaged in ex parte contacts during rulemaking process which influenced the final rulemaking decision. 3 year notice and comment rulemaking proceeding re: paid TV services access to contemporary films and sporting events. Current rule restricts HBO's access, events must be shown on broadcast television first Relaxing rule creates more competition and develops better TV. On the other hand, people who don't have HBO will not be able to see these events.

Question: Whether or not it is acceptable for members of various interest groups to engage in ex parte communications with agency. Holding: Court recognizes the importance of informal contact but also sees need for a record that is the basis for the final decision Rule: o When notice is published, that is when notice and comment period begins. o Prior to that publication, ex parte communication does not have to be disclosed (made part of the record). o After notice is published, ex parte communications must be made part of the record. Why is the timing important? o If ex parte communication is important basis for the agency's decision, we want to give opportunity for adversarial comment. o Need an actual record o Record must be available for judicial review If extraneous communications are taking place and FCC is basing decision on communications not in the official record, then the notice and comment period becomes a sham proceeding Not an absolute prohibition

82 o Court recognizes pragmatic reality; cannot toss out rule and lengthy rulemaking process.

Sierra Club v. Costle

Facts: EPA issued revised new source performance standards under Clear Air Act to govern atmospheric emissions of sulfur dioxide and particulates by new coal fired power stations. Possible ex parte communications between agency and White House and agency and Senator after comment period closed.

Holding Contact with White House was not inappropriate Contact with Senator was acceptable Contrast with decision in Portland Audubon where court strictly prohibits ex parte communications in the context of formal adjudications (President could not communicate with representative on board) In the context of informal rulemaking, there is supposed to be communication between agencies and individuals (lobbyists, senators, etc.) There is a different culture surrounding informal rulemaking (public notice and comment) and it should therefore be subject to a different set of rules.

Basic Rules: (in stark contrast to ex parte communications in context of adjudications usually formal) Portland Audubon very strict, no contact, alter ego sitting on board does not give Pres authority to communicate. Very clear prohibition on ex parte communications. o Like a trial, very formal, dont get to talk to judge Informal rulemaking very different culture o Supposed to be able to discuss and submit comments o Meetings with others are subject to different set of rules Before you announce notice and comment rulemaking o Greatest Freedom o Talk as much as you want to whomever you want o Dont have to documented After notice announced o HBO: ex parte communications not appropriate o Must be part of record o Not appropriate for public record and comments not to include side meetings o Should try to avoid, but if ex parte communications occur, any written doc or a summary of oral communication must be placed in the public file so that interested

83 parties may comment thereon. Why not explicitly barred? Hard to detect and hard to avoid for some individuals Have to face a pragmatic reality. Also, an absolute prohibition would lead to absurd resultsthrowing out the entire rulemaking process?)If you set in place an explicit rule that ex parte communications prohibited, would create tremendously high repercussions if such communications take place. Post Comment Period: o If Pres office meets with commissioners, those type of ex parte communications must be docketed generally o Congressman standard even lower Expect congressmen to lobby on behalf of their constituencies Those communications fine so long as arguments being made are types of arguments agency is permitted to consider. Sen. Byrd was essentially repeating himself, and lobbying on behalf of his constituents.

84 ADJUDICATIONS WELFARE AND DISABILITY BENEFITS

Goldberg v. Kelly 783

FACTS: City of New York cuts off welfare benefits without notice or comment. People complain about this, so New York substitutes with a system: 1) Caseworker has doubts whether you should have welfare benefits; 2) Caseworker must contact supervisor and they make a joint notification that welfare is being cutoff; 3) Individual has 7 days to appeal decision to uber-supervisor. a. That appellate decision is final. b. Individual has no chance for hearing, to cross examine witnesses, etc. Doesnt the due process clause guarantee you some procedural protections before welfare can get cut off? Like some chance for oral arguments? QUESTION: Whether the DPC requires that the recipient be afforded an evidentiary hearing before the termination of benefits. Whether the recipients interest in avoiding that loss outweighs the governmental interest in summary adjudication. Termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. HOLDING: Court finds such action unconscionable, unless overwhelming considerations justify it. When welfare is discontinued, the agency must conduct a pre-termination evidentiary hearing to provide the recipient with procedural due process. CLASS DISCUSSION: Did court get it right? Majority of class agrees Kelleen OFallon: promise a fair hearing on different terms than what we would normally think. Not a judicial trial, but more an opportunity for them to come in person to present arguments orally, as well as express interests in writing. Notice and Opportunity to Be Heard OFallon: dealing with a poor population with little education, so providing oral opportunity is vital since may not be able to submit in writing. With respect to welfare benefits, 14th Amend guarantees notice. Kevin Rodkey: Good policy to require some procedural measures, but the agency is already providing some mechanism for P to employ. Thought Supreme Court got it wrong went too far.

85 there are still other avenues out there to be utilized. The scope of this decision could apply to 10s of thousands - If agency making determination, could be significant burden on agency to hear potentially thousands of cases. Stephen Bellum: Positive vs negative rights. Without welfare no worse or better. If you dont give them benefits in the first place, they are no worse off then they would be. so where does this right come from? Emily Hanson: I would argue that if under law you have a right to a benefit, and you have been recing that benefit, for that benefit to be taken away thats where you take that leap from something the US didnt have to give you to where you have a right not to have that taken away... Prof: I dont have a right to have a Porsche, but I have a right to not have my Porsche taken away Even if no right to something, if over time the govt, either by law or routine practice or state law some mechanism essentially confers that you will get this, at that point the right is created that it cant be taken away from you without notice, with procedural protections. State promised dependence created. Procedural due process protection created. Rachel Gozhansky: Isnt there a time limit? In a scenario where we promised you no more than 2 years, then you build into your equation 2 years of welfare benefits Prof: Some states have perennial state benefits, others have time limits. Dont have to give in first place isnt it a real problem that agency cant retract benefits? Make agencies more reluctant to provide benefits in the first place handcuffing themselves to procedural obligation that they would not otherwise have to endure. Alan Glickman: expectation. If written in certain way, limits ok. Communication. Say you will receive this so long as there is sufficient funds vs. saying you will receive this so long as your income is below x Prof: why wouldnt they then always be written as arbitrary and non-binding benefits? Kelleen: Court holding specifically notes that this holding applies to welfare they are not extending to all other benefits. Welfare is differentiated. Determining welfare is affecting peoples chances of survival. Prof: Goldberg limited to its facts. Welfare unique: Specialty commitment: You need it and no other collateral sources of funding. Not a supplement perhaps only source. Without which difficult to get back on feet.

86

Mathews v. Eldridge 839

FACTS: Benefits given out according to qualifying statutory definition of disabled.

QUESTION: What type of constitutional/procedural protections flow from the due process clause of the 5th amendment regarding social security disability payments? Dont these individuals deserve an evidentiary hearing?

SSA contends: the existing administrative procedures provide all the process that is constitutionally due before a recipient can be deprived of that interest.

Distinguished from Goldberg: eligibility for disability benefits not based upon financial need.

The Court must consider the following in determining whether evidentiary hearing factors apply to a termination of benefits: 1) Private Interest: The degree of potential deprivation that may be created by a particular decision is a fact to be considered in assessing the validity of any administrative decision making process. What is person at risk of losing? How important? How disruptive to lose? Compare to other benefits. 2) Risk of Erroneous Deprivation: Error vs Added Value If no oppty for discovery or cross-examination, etc., how much does error rate go up? If not much, Const probably does not guarantee. If we do give it to you, how much value does that really add? 3) Government Interest: what is the burden to the public? Using these factors to determine social security disability did not need an evidentiary hearing under the due process clause:

87 1) Private Interest: sole interest is disruption receiving benefits in uninterrupted benefits. Disability benefits not based on financial need. Not sole source of benefits. May have other source of income. All that youre worried about is the interruption in the benefits received. You will eventually get these benefits if they are due you. So the pre-termination evidentiary hearing is merely to prevent the interruption. If you dont get this, you can still get your benefits if you can prove that they are due you, and can receive retroactive payments. 2) Risk of Deprivation: value added with pre-evidentiary hearing low. Disability, unlike welfare, does not turn on credibility based on medical documents, written submissions, etc. Oral evidentiary hearing would not benefit recipient. 3) Public Interest: evaluate the burden. If 1,000s of people would contest termination, burden to agency could be huge. Utilitarian scale: How much does this policy improve the system and reduce the error rate? HOLDING: DPC does not require recipient of disability benefits to have evidentiary hearing prior to termination. GOLDBERG established the right to some due process protection in first place. MATHEWS established how much process is due to you. Provides the analysis for determining this.

CLASS DISCUSSION: Jennifer Ordelt: The sole interest here is receiving benefits in uninterrupted fashion. Not an interest in receiving the benefit but in receiving it uninterrupted. These disability benefits are not based on financial need, so could have other private resources need not as dire Prof: Private interest is not that weighty, the cost is the disruption, since you already get a postterm evidentiary hearing. Not the pre-term evidentiary hearing in addition to Ordelt: the added value is low, routine unbiased standard med reports. What would the added evidentiary hearing give to the recipient? In Goldberg, credibility mattered and credibility often best evaluated in evidentiary hearing. Here, you only need a doctors note. This can be filed in paper work.

88 Sarah Baum: people would be more induced to go all the way through the process to extend their benefits for as long as possible Shomari Taylor: Doesnt see the difference between the interruption would have the same effect on a person receiving welfare benefits as a person receiving disability benefits. Prof: There are scenarios where people dont need the income. Shomari: that does not affect the constitutional implications. Walker: There are a lot of people who live from check to check. Disabilities are very subjective. So you might go to a million doctors and they all say theres nothing wrong with you but you know theres something wrong with you. Disability covers a wide spectrum of things. May not always come across in a written supplement. Hotz: The difference between someone who depends on disability benefits and one who relies on welfare are generally not that disparate. Given that the court itself noted that should the elimination of disability benefits force the claimant into destitution, they could then apply for welfare, shows the thin line between the two. Prof: What about this scenario for banks same DP argument? Clarke: This is different. Burden on govt vs private interests. Shashi Jairam: 2 different pools of money. No one pays into welfare. Disability you pay into. If you pay into SSI, you have more of a right to receive money than a general pool fund. Prof: How does this play into bank scenario? Student ?: waste of time welfare and disability for individuals different than a right to money for business. Eric Garvin: money to eat is so basic, money to cope with disability is basic, more human than in the bank hypo

ADJUDICATIONS RIGHT TO COUNSEL IN ADJUDICATIONS DEPENDS

Walters v. Natl Assc of Radiation Srvs 851

Oppty for a benefit applicant or recipient to obtain legal counsel to aid in the presentation of his claim to the Veterans AdmiNistration.

89 FACTS: Statute Fee Limitation - Attorneys fees in VA claims never awarded above $10 per claim. P claims this rule violates his due process of law by depriving him of representation by expert legal counsel in his VA claim. QUESTION: Along the Matthews line of how much due process, question here is whether individuals are entitled to the procedural protection of right to counsel for benefits hearings. Govt argues: no need for the employment of attorney VA does this so that a claimant never has to divide his award with a lawyer System will be rendered more adversary and complex by the very presence of lawyer representation Engender greater administrative costs Paternalism is a legitimate legislative goal HOLDING: Fee limitation does not deprive claimant of due process of law. Here factor 2 predominates: Risk of Erroneous Deprivation: Error vs Added Value o There simply isnt much added value to having a lawyer. o Error rate is pretty constant with or without the protection. Factor 1: Private Interest - Is this interest more or less like disability or welfare? o Court says these benefits (service related disability benefits) are very much like disability benefits. Factor 3- Public Interest: o Agency has a great interest in keeping lawyers out of the system, because they will mess it up. o Makes system more inefficient and costly. (public cost doesnt have to be fiscal).

STANDING

Allen v. Wright 1118

Requirements for standing: Particularized injury Injury fairly traceable Judicial intervention will remedy injury FACTS:

90 Nation-wide class action / parents of black school children / IRS should deny tax-exempt status to racially discriminatory private schools. Ps claims a direct injury to their childrens opportunity to receive a desegregated education because of the Govts conduct. Traceable to IRS tax deductible contributions allow white students to avoid attendance in desegregated schools (cost of private schools kept low). QUESTION: Can parents of children in public schools on the ground that they are being injured in some way, bring claim against agency for not enforcing rule? 1. Particularized injury fails a. Too abstract agency not following law b. Too attenuated a cause failure of desegregation cannot be fairly traced to this law Why did Congress pass this tax-exempt law? Promote desegregation. If schools were threatened with losing their tax exempt status, it would scare them into implementing desegregation. a. Congress tried to draw a direct line between Tax Law and Desegregation with this law So why doesnt the court see this connection, which is essentially what these parents are claiming? a. A lot of other ways in which segregation may exist. b. Entirely speculative whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.

HOLDING: No Standing. The line of causation from the IRSs conduct to the continued segregation of the public schools was so attenuated that the latter was not fairly traceable to the former. First, general abstract injury doesnt establish standing. You cant sue over government failure to not implement the law. Second, injury claimed (that youre slowing down integration/impeding desegregation) cant be fairly traced to the IRS failure to enforce tax exemption laws. Second prong of standing not fulfilled.

Federal Election Commission v. Akins 1155

Fed Elec Campaign Act of 1971 political committees must disclose membership, contributions, and expenditures. FACTS: Akins group of voters who challenge an agency determination in court.

91 Claim: AIPAC met definition of political committee and had unlawfully failed to register and to make public statutorily listed info about members, contributions, and expenditures. AIPAC Amer Israel Public Affairs Committee claims not to be a political committee. FEC determination: AIPAC is issue-oriented falls outside Act. QUESTION: Does Akins have standing with such a generalized grievance? HOLDING: Court finds group has standing, even though this is a generalized grievance. Where a harm is concrete, though widely shared, the Court has found injury in fact. Concrete injury: in order for me to vote, I need information. o This law compels disclosure of info vital to my voting decisions. o Without this info I am harmed. o Solves the constitutional standing problem of concrete injury. But what about Generalized Grievance issue? Why ok to bring this suit? o Because the statute says you can. o Statute contains a citizen suit provision statutory standing: Even if you wouldnt ordinarily have standing, Congress has passed law that allows you to do this. Administrative Context: congress is able to create and open door for litigants to enter fed court to challenge agency action or inaction through citizen suit provisions o Relax traditional standing rules Citizen suit provision cant cure the constitutional standing problem, but it can cure the prudential standing problem. o Can create causal links where fed court may not otherwise find them. o E.g., EPA v. MA May also cure generalized grievance problem.

Const Standing Doctrine: that part of standing doctrine that Congress can not get around. Rooted in Art III, Cases and Controversies. Political branches better at dealing with generalized grievances.

Prudential Standing Doctrine: as a matter of prudence, we dont think courts should prevent anyone from bringing a claim. If congress has already put a citizen suit provision in the act, then Congress has already told the courts that this is how they want these handled. Better for individuals to bring federal suits to get this problem fixed.

92

STANDING PRE-ENFORCEMENT REVIEW

Abbott Labs
1. Facts In 1962 the FDA was amended to require prescription drugs to print the established name at least half as large as the proprietary name. The FDA commissioner required that every time the proprietary name was printed the established name had to be printed as well. Pharma sued for pre-enforcement review.

93 The purpose of the regulation was to show that the drugs sold under proprietary names were the same as generic drugs being sold at a lower price. The requirement to print the established name applied to advertisements as well.

2. Issues Whether the Pharma companies can receive pre-enforcement review of the Commissioners interpretation of the statute. Whether the plaintiffs satisfy the requirement of an actual case and controversy making the dispute ripe for judicial review. 3. Procedural History The district court granted injunctive relief finding that the statute did not permit the Commissioners interpretation. The Third Circuit reversed without reaching the merits holding that pre-enforcement review was unauthorized and therefore beyond the jurisdiction of the court. The Third Circuit also held that no actual case or controversy existed. 3. Holding The Supreme Court found the APA contained a presumption of judicial review and before the Court rejects pre-enforcement review there needs to be specific language that prevents pre-enforcement review.

4. Discussion When Congress includes a right of judicial review in some contexts and not in others doesnt that suggest that in the case where they dont include it, they dont intend to allow pre-enforcement review? o Huntington - Pharma and drug distributors would have to take on significant costs to comply, and they could be punished if they follow the old procedures which they in good faith believe are the correct standards. o Dahl two arguments general principle that judicial review is particularly important and so we are not going to insist on explicit statements authorizing judicial review. In contexts where judicial

94 review is so important, we dont apply the cannon of statutory review that the inclusion in some places implies the exclusion in other places. o Levy Potential problem with separation of powers issues. Congress knows how to grant judicial review, so the Court is impeding on their powers when it takes that decision out of their hands. o Carvin The Court is authorized to decide if pre-enforcement review is allowed because the burden is on the court if it allows preenforcement review. The Court bears the brunt of the effects of not allowing pre-enforcement review. That could be the burden that Congress intended to impose.

o Estoesta - Judicial review is important where litigants concrete rights are at stake. o Gawronski - Allowing courts to apply statutory canons in some instances but not in other instances allows the judges to make policy which is not what courts should be doing. Sections 701-702 of the APA establish the presumption of judicial review o anyone who is adversely effected by an agency action is entitled to judicial review. o Congress has been silent about judicial review in the shadow of the APA. o The question is harder with pre-enforcement review because the issue there is whether the party has been aggrieved by the agency action. What is the agencys action in this situation? o The agency promulgated a rule that it has made effective immediately. o The injury is that the pharmaceutical companies will have to pull their product from the shelves and spend a lot of money to reprint their labels.

95 o This suddenly imposes an obligation to make a number of costly changes. What makes the controversy ripe? o high stakes o This was a solely legal issue. No factual dispute. NOTE: Pre-enforcement challenge question should discuss: (1) whether the debate is exclusively legal (is it purely a question of law or is it a mixture of law and ); (2) what are the consequences of not having pre-enforcement review; (3) whether agency authority to enforce is self-executing or not. o both parties filed for summary judgment indicating that both parties agreed that there were no factual disputes. o consequences of waiting if review is only allowed once agencies have decided to enforce the provision, it will be very costly for the industry. o the court observes that even though DOJ approval is required, it doesnt look like DOJ will do anything other than enforce the agencys rules. Where there is some discretionary decisionmaker who can choose whether to enforce a provision, then courts will be hesitant to allow for pre-enforcement review because it is unclear whether the agency will enforce the provision. Whether a provision is self-executing can also depend on whether there is a delay before the provision is enforced. A rule may not be self-executing where the decision to enforce the rule is left to the discretion of an independent actor. When there is some step left to take before enforcement then the court is more likely to find that the controversy is not yet ripe for judicial review. eg. Congress tells HHS to develop rules for when abortions are entitled to be granted federal funding. Keep in mind that federal funds must be available when a womans life is in danger. Congress gives HHS 180 days to develop

96 the final rule. There is still some room for the agency to decide on the final rule. As a result Congresss statement is not self-executing. JUDICIAL REVIEW

SUBSTANTIAL EVIDENCE REVIEW

Universal Camera Corp.

1. Facts The dispute is over whether an employee was fired for supporting the unions position in an NLRB representation proceeding or solely because he had accused the personnel manager of drunkenness. The trial examiner found in favor of the employer and the board made the opposite finding. After the boards decision, the second circuit approved the boards decision but it stated that it had problems with the boards factual determinations. 2. Issue Whether the substantial evidence review standard requires the court to review the entire record or simply to find substantial evidence in support of the agencys decision. 3. Holding The court must look at the full record and the trial examiners findings are part of the record. 4. Discussion Over the course of time, substantial evidence review had created two theories of what constituted substantial evidence review o looking at the agencys factual findings, the evidence supporting the agencys conclusion is substantial. The Court finds this interpretation has not been incorporated into the APA. o The issue is whether there is substantial evidence when looking at everything. This interpretation requires the agency to

97 look at the whole record and account for contrary evidence. this is the proper interpretation of substantial evidence review. The second circuit court of appeals should not have felt like it was bound by the boards rejection of the trial examiners findings. The court is not bound by the higher agencys rejection of the lower agencys factual findings.

Allentown Mack Sales v. NLRB

1. Background a. NLRB precedent provides three options when an employer believes a union no longer enjoys the majority support of the employees. i. it can request a formal, Board-supervised election ii. it can withdraw recognition from the union and refuse to bargain iii. it can conduct an internal poll of employee support for the union. b. 2 and 3 are unfair labor practices unless the employer has a good faith reasonable doubt about the unions majority support. 2. Facts a. Mack Trucks sold its Allentown branch to several of the managers of that branch. b. The new business hired 32 of the original 45 Mack employees c. During interviews a number of employees made statements indicating a lack of support for the union. d. The new business refused to recognize the union that represented the employees under Mack Trucks claiming a good faith belief that the employees did not support the union. e. The company held an internal poll and the union lost 19-13. f. ALJ held that Allentown was a successor employer and therefore there was a presumption of continuing majority support for the union. g. The ALJ held that the poll complied with the NLRBs standards but Allentown had not demonstrated a reasonable doubt as to majority employee support for the union. h. The NLRB affirmed the ALJs decision. The DC Court of Appeals enforced the Boards bargaining order. 3. Issues a. Whether the NLRB standard for employer polling is rational and consistent with the NLRA. b. Whether the Boards factual determinations are supported by substantial evidence in the record. 4. Allentowns arguments a. The reasonable doubt standard is the same as the standard for unilateral withdrawal, therefore, employers can poll only when it would be unnecessary to do so. b. The record evidence clearly demonstrates a good-faith reasonable doubt that the union enjoyed majority support.

98 c. The Board has sub silentio abandoned the reasonable doubt prong of its polling analysis. 5. Rules a. Courts must defer to the Boards decision if it is rational and consistent with the Act and the Boards explanation is adequate, rational, and not arbitrary. b. An agencys result must be within its lawful authority and the process by which it reaches that result must be logical and rational. i. the problem with applying a standard in a way other than announced is that lower courts cant apply the standard consistently and higher courts cant review the decisions properly. c. The substantial review standard requires that the court look through the record as a whole and determine if there is substantial evidence supporting the agencys fact finding. 6. Findings a. The Boards requirement of the same standard for polling and withdrawal of recognition is not so irrational as to be arbitrary and capricious. b. The Court rejected the boards argument that doubt meant disbelief and not uncertainty. c. The issue for review is whether a reasonable jury could find that Allentown lacked a genuine, reasonable uncertainty about whether the union had majority support. The Court says NO. d. The Board improperly failed to consider ambiguous statements by employees and statements that other employees also did not support the union. e. The Boards precedent required more than a reasonable doubt regarding employee support of the union even though that was the established standard. f. The Boards regular application of the rule differently than announced does not change the rule. g. The notion that the agency can be forced to go back to the APA from a standard that it set in prior decisions is in tension with the rule of regularity. 7. Dissent a. The Courts substantial evidence review rewrote a rule without adequate justification and failed to give the Board the appropriate deference. b. Substantial evidence review requires the Court to identify the conclusion and then examine and weigh the evidence. c. Substantial evidence decisions should be made by the courts of appeals. d. The dissent argues it was reasonable for the ALJ to disregard statements made during job interviews.

99

JUDICIAL REVIEW ARBITRARY AND CAPRICIOUS REVIEW

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

a. Procedural History: This was an action by citizens' organization, individuals and conservation group to enjoin the Secretary of Transportation from releasing federal funds to state highway department for construction of segment of expressway through city park. The district court granted the secretary's motion for summary judgment. The COA affirmed and the Supreme Court reversed. b. Facts: Section 4(f) of the Department of Transportation Act of 1996 and 18(a) of the Federal-Aid Highway Act declare it is national policy that special effort should be made to preserve public parks. The Secretary of the Department of Transportation (Secretary) shall not approve any project which requires the use of any publicly owned land from a public park unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park.Petitioners file suit to prevent the construction of a six lane highway through Overton Park. If the highway is constructed at least 26 acres of the park will be destroyed. The highway was approved by the city council and requested by senators and congresspersons. The Department of Transportation Act of 1966 and the FederalAid Highway act of 1968 prohibit the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a feasible and prudent alternative route exists. If there is no such route he can approve construction only when there has been all possible planning to minimize harm. The Secretary authorizes the construction c. Issue: Was the agency action of the Secretary of Transportation arbitrary and capricious? i. Whether the Secretary made an independent determination in approving construction of the highway through Overton Park? ii. Whether the Secretarys decision that there was no feasible and prudent alternative to the use of the park land was correct? d. Holding: Maybe, The whole record was not before the District Court. The post-hoc affidavits were not sufficient so the court remanded to the district court. i. The court suggests that the court gather all the evidence that was available to the agency when it made its decision and that should be the 'record' on review 1. There is no formal record so we can only reconstruct what the record would look like ii. In some circumstances we may expect the administrator to testify 1. There is some tension with Morgan's proposition that we dont want to probe administrators mental processes e. Analysis: i. Petitioners argue that the action is invalid without factual findings as to why there were no prudent and feasible alternatives. The Secretary simply relied on the decision of the City Council instead of making the decision himself. 1. Respondents argue that formal findings were not necessary.

100 a. Respondents introduced affidavits indicating that the secretary's decision was supportable. 2. SC agreed that formal findings were not necessary, but judicial review based solely on the affidavits was inadequate ii. Is this action subject to judicial review? 1. APA 701 provides that AN agency action is subject to judicial review except where there is a statutory prohibition on review or where THE agency action is committed to agency discretion by law. a. In this case there is no indication that Congress intended to limit judicial review i. Section 4(f) o the DOT Act and s 138 of the FederalAid Highway Act gives clear and specific directives. iii. What standards of review should the court employ? 1. Court says that substantial evidence does not apply from section 706(2)(E) a. This is only appropriate in formal and informal rule making or formal adjudicatory hearing i. This is an informal adjudication 2. Court also says that de novo is not appropriate (this is only appropriate in a very narrow set of circumstances) a. De novo review is authorized when the action is adjudicatory in nature and the agency is factfinding procedures are inadequate b. It is also authorized when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. 3. APA 706 provides that a reviewing court shall hold unlawful and set aside agency findings if it is "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law". a. When is an agency action arbitrary and capricious? i. Was the decision made on consideration of relevant factors? ii. Has there been a clear error of judgment? iii. Have the necessary procedural requirements been followed? Class Discussion Issues: Prof: General roadmap for evaluating an agencys actions: 1.Whether action is within the agencys statutory authority 2.Whether agency is justified in making factual findings and reaching ultimate conclusion 3.Whether agency followed the required procedural steps Prof: Overton Park provides overview of different standards of review. Section 706 of the APA delineates standards of review applicable to agency decisions. Overton Park is a guide to which standard applies and when.

101 Substantial Evidence Test: See APA 706 Authorized only when the agency action is: taken pursuant to a rulemaking provision of the APA ( 553) (notice and comment rulemaking); or based on a formal adjudicatory hearing ( 556, 557) (classic case where person has a hearing before an administrator). Fact-bound review standard that applies to factual findings by an agency De Novo Review: Review of whether the Secretarys decision was unwarranted by the facts Two situations in which it applies: Agency fact-finding procedures are inadequate Procedural problem Occurs in adjudicative context New issue facts not presented to the agency Occurs in non-adjudicative context Federal court will operate like the trial examiner and make its own finding of fact Arbitrary or Capricious: Definition: Whether decision is made on a consideration of relevant factors; and Whether there has been a clear error of judgment Inquiry into the facts is to searching and careful but a narrow one Court not empowered to substitute its judgment for that of the agency Standard to be applied for an agencys determination when an informal agency adjudication Discussion of which standard of review applies: Substantial Evidence does not apply because it is an informal adjudication Factual determination Applies only to Overton Park Not a binding rule Statute doesnt require a formal hearing De Novo does not apply Arbitrary or capricious is the proper standard of review What should happen when there is not a record of the agencys decision: District Court should NOT: Have parties submit affidavits that explain and justify decision Make decision based on competing affidavits District Court SHOULD: Gather all evidence available to agency at the time the agency made its decision. This becomes the record on review. Reasoning: Court needs some form of judicial review, so court trying to re-create what would be in the record Should be evidence the agency actually considered; should not be evidence that was available somewhere but not considered by the agency

102

Falls to the agency to reconstruct the record In some circumstances, the Secretary may be expected to testify and explain why the decision was made. Prof: Whats wrong with the affidavits the agency submitted after the fact (the post-hoc rationalizations)? Regales: Part of the problem is the district court relied on the affidavits, instead of relying on the record the agency looked at. Jairam: Theres no requirement the agency document these things in informal adjudications. Prof: Court rejected the affidavits as a post-hoc justification of the agencys decision. The district court, in reviewing the agencys decision, looked at the affidavits rather than what was part of the record at the time the decision was made. District court unable to know with precision whether what is in the affidavit was in the record. The court is supposed to review an agencys decision based on what the agency knew at the time it made the decision. Dahl: Whats the difference between the Secretary testifying and the submission of affadavits? Knoll: Brining Secretary to court to ask what were you considering is different from asking what was your reasoning Prof: Courts are very unwilling to compel Secretary to testify unless there is some prima facie evidence of bad faith. Overton Park is a Post-Morgan I & II decision that says in some circumstances, court will request the agency administrator to testify. Morgan is still good law and still provides a shield to the administrator with respect to the questions that can be asked of the administrator. There is a tension between Overton Park and Morgan. Reconciling Morgan and Overton Park Morgan sets out a general principle and Overton Park creates a narrow exception; or Morgan limits the types of questions that can be asked under Overton Park. I.e. Morgan creates an absolute bar to asking questions about how much time the administrator actually spent reading the transcripts, etc. Overton allows asking the substantive questions. Alternatively, Overton Park is a bit of a reversal from Morgan because some form of recorded is needed so that there can be judicial review. Prof: Court is saying the district court erred in relying on the agencys affidavits because it is inconsistent with the APA. The district court should have looked at the record and reviewed it under the arbitrary or capricious standard. Overton Park addresses a blind spot in the APA where judicial review is promised but no traditional record is required.

Motor Vehicle Mftgs v. State Farm Insurance Co.

i. Facts: In 1967, Congress mandated that the DOT improve highway safety. In 1969, the DOT imposed Vehicle Safety Standard 208. The rule required that every new car have passive restraints by 1975. Passive restraints included airbags and automated safety belts.

103 The DOT also said that between 1972 and 1975, manufacturers can opt not to install passive restraints but must at least install an ignition lock. This device would prevent a car from starting unless the seatbelt was buckled. The public was outraged at this ignition lock requirement. Thus, Congress amended its law to prohibit the use of ignition locks and to allow for a Congressional veto of agency decisions. (Note that the legislative veto was later struck down in INS v. Chadha.) In 1976, the Secretary of Transportation concluded that, while passive restraints are technologically and economically feasible, there may be massive public backlash. He decided to slow things down and try a pilot approach instead of implementing the rule. Shortly thereafter, the Secretary of Transportation of the Carter administration rejected that pilot approach and reverted to the original approach (reinstated the rule). Finally, in 1982, the subsequent Reagan administration Secretary of Transportation again rescinded the rule. The Secretary reasoned that: (1) The safety benefits of passive restraints would not materialize as originally expected because automakers would choose automatic seatbelts over airbags and seatbelts can be easily unbuckled; (2) the safety rules demand an unreasonable, burdensome investment by the auto industry, especially in light of current economic distress, and (3) the public would lose trust in the agency to implement safety regulations. ii. Issue: Is the NHTSA's rescission of the passive restraint requirement of Standard 208 arbitrary and capricious? iii. Holding: Yes iv. Analysis: 1. Agency justifications a. The agency said it wouldnt impose this passive restraint because anyone can unbuckle it and its not clear that adding it will make cars safer because people can unbuckle the automatic seatbelt. b. It is a big investment to demand the industry implement something that will have nominal safety advantages. c. Finally the agency said that the public won't trust the agency to make the cars safer if they make a rule that doesnt make them safer d. In time they will be able to make a rule that will make the public safer. v. What is the appropriate standard? 1. Arbitrary and capricious a. Are the relevant factors considered? b. Has there been a clear error in judgment? vi. State Farms adds additional factors 1. Did the agency rely on extraneous factors a. Safety and feasibility should have controlled the decision not public opinion and resistance 2. Did the agency fail to consider an important aspect of the problem? a. If there is an obvious fix to the problem the agency is expected to look seriously at the alternative

104 i. In this case the agency could have insisted on airbags or they could make it impossible to remove the automatic seatbelt except in emergencies ii. The fact that the agency didnt explain why it didnt take these courses of actions is arbitrary and capricious 3. Is the decision contrary to the evidence? 4. Is the decision implausible? vii. *only the final agency action is under review viii. *arbitrary and capricious review, even though it implicates factual findings, is supposed to consider the actual decision made by the agency (mixed law and fact question II. Class discussion: Prof: When you see an agency set out its particular reasons for its decisions, those should be your targets in an arbitrary & capricious review. Prof: Was the agencys decision arbitrary and capricious? Dockerty: Yes. Clear error of judgment. If the agencys goal was to create safety standards, then removing this rule entirely when there is an alternative (airbags) makes no sense. Hotz: Generally yes, but it is not wrong for the agency to follow the policy of the administration at the time. Lopez: No. The agency properly considered the relevant factors in rescinding its rule the reduction in realized safety and the cost to the industry. We have given agencies a level of discretion for a reason. Prof: The Court provides some additional guideposts for applying the arbitrary & capricious standard: Did the agency rely on bad, extraneous factors? (e.g., public resistance to the decision, the economic climate) Did the agency fail to consider an important aspect of the problem? (e.g., feasible alternatives) Is the decision contrary to the facts? Is the decision simply implausible? Prof: The prongs of arbitrary & capricious review may look like clearly erroneous, but do not confuse the standards; they are separate. Prof: Two final notes: When an agency has gone back and forth over time, it is the final agency action that is under review. Bear in mind that arbitrary & capricious review, even though it implicates factual findings, is supposed to be the standard of review for the final agency finding that is not factual. It is the decision to rescind the earlier rule that is subject to arbitrary & capricious review, and it is a mixed question of law and fact. Bottom line: State Farm exemplifies the willingness of courts to look at the facts and details of the agencys logic, even under arbitrary and capricious review, and to overrule the

105 agencys decision where it focused on the wrong factors or failed to look at important aspects of the problem.

JUDICIAL REVIEW SKIDMORE DEFERENCE

Skidmore v. Swift
1. Facts a. 7 employees sued Swift to recover overtime and other fees. b. the employees agreed to remain within hailing distance three or four nights a week. Only duty was to respond to alarms. Paid each time they responded to an alarm. c. The administrators ruling came in a Bulletin, which is an informal statement of policy by an agency. d. Bulletins lack binding effect.

106 The trial court found this time was not work time. The Court of Appeals affirmed. 2. Issue a. What degree of deference should a court give to a bulletin that does not carry the force of law? 3. Findings a. Skidmore deference the deference a federal court will give to an agency statement or informal decree where that statement doesnt have the power to control but only the power to persuade. b. The decision to give Skidmore deference must be based on the degree of thoroughness of the agencys statement, the validity of its reasoning, its consistency with earlier pronouncements, and any other factors that add to its persuasive value. c. Before Skidmore, informal agency announcements received no weight, after Skidmore, federal courts are entitled to and expected to look at agency statements for guidance if the statement is persuasive. d. No principle of law prevents waiting time from counting as working time. e. An administrator applies his experience to decide this sort of issue, but he does not hear adversarial proceedings in which he makes findings of fact and reaches conclusions of law. f. The decisions of the Administrator are not controlling on the courts by they do constitute a body of experience to which the courts and litigants can turn to for guidance. g. The Court disagreed with the Administrators view that waiting time did not constitute work.

JUDICIAL REVIEW CHEVRON DEFERENCE When does Chevron deference apply, and when does arbitrary & capricious review apply? There are 3 standards of review: 1-substantial evidence review Applies to factual findings of agencies; factual determinations of agency 2-arb & cap review Applies to nonfactual findings/ determinations of agencies 3-Chevron deference A threshold question as to whether an agency is acting within its authority or not

107 Arb & Cap review is the std you use to eval an agencys action, when you know agency is acting within broad authority, but youre not sure agency decision within broad authority is proper Was it a bad decision? Chevron is reserved for whether or not agency has the authority to do what its doing Take each Chevron case and think of it as that someone is skeptical that agency can do what its doingis is within authority of the agency? Agency expanding what it can regulate in the first place State Farmcould agency rescind propose a different rule for passenger restraints we were deciding whether that was a good decision or bad decision Contrast where DOT interprets motor vehicles to mean cars and also motor boats they say the believe under their authority we also can impose a requirement that all water vessels also have air bags This looks like agency is trying to expand beyond cars into boatsmoving beyond boundaries of what theyre supposed to regulate Another telltale sign of where Chevron deference is appropriatewhere there is ambiguity in statute This does not answer the questionits a signal we should look out for

Chevron v. NRDC (US 1984)

Facts:

In Clean Air Act Amendments, Congress enacted requirements that were only applicable to States that had not reached national air quality standards established by EPA pursuant to earlier legislation Amendments required these non-attaining states to establish a permit program regulating new or modified major stationary sources of air pollution A permit could not be issued for a new or modified major stationary source unless several stringent conditions are met EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of stationary source Meaning, that existing plant that contains several pollution-emitting devices can install or modify one piece of equipment without meeting permit conditions if alteration will not increase total emissions of plant Treated all pollution-emitting devices within same industrial grouping as though they were encased in single bubble Held: Congress did not have a specific intention on the applicability of the bubble concept, and the EPAs definition of source is a permissible construction of the statute Every time we have a Chevron Q, we need to look to the statute

108 Every state that hasnt complied is subj to new set of rules that they have to get a permit EPA issues a regulation pursuant to the statute that says that all states that have to apply for permitsthey have to apply whenever theres a change to a stationary source So how do we define stationary source? What qualifies as a stationary sourcesthere are 2 interpretations: Each smokestack as a stationary source, OR In context of statute that wants to improve air quality, this one is the proper defintion the bubble approachthe whole factory is one stationary source (the whole group of smokestacks) this works to maintain air quality, and this is permissible in contexts where statute is directing agency to maintain air quality this is a more accommodating approach; this meant that if they did something on 1 side of factory that increased pollution, they could do something on other side to decrease measured in the aggregate Procedural History: EPA: promulgating a regulation pursuant to authority under the statute, that says stationary sources as bubbles Court of Appeals strikes that down Sup Court reverses, agency interpretation upheld by Supreme Court Chevron test from text: Did Congress directly speak to the precise question at issue? If intent of Congress is clear, then that is the end of the inquiry; follow the mandate of Congress If court determines that Congress has not directly addressed precise question at issue, the court must decide whether the agencys answer is based on a permissible construction of the statute FIRST STEP of Chevron test: Is there ambiguity in the statute? Ambiguity can be in form of silence, OR in an ambiguous term Clarificationhas to do with ambiguity as to that matter This is issue specificis there ambiguity as to this particular issue? SECOND STEP of Chevron test: Is the interpretation that the agency gives reasonable? You dont get to come here unless it is ambiguous! If congress is crystal clear (no ambiguity) then you dont need to ask the next question Chevron is not a shield an agency can use if statute is clear! Ms. Rohm- first identifies that there is a gap in the statute

109 First looks at statutory language, then legislative history, then policy behind the Act Proflook to text, legislative history, and maybe policy (controversialJustice Stevens says yes to policy, but there is disagreement as to this) If text is unclear, thats where we would have ambiguity If words are contradictory, or if the information is not there A number of justices think we can look at legislative history Congress didnt debate smokestacks v bubbles, so they didnt know what definition they wanted What happens when text is crystal clear, and legisl history is crys clear in exact opposite direction? 4 justices think that creates ambiguity Stevens believes that legislative history trumpsthat we should follow what Congress clearly contended [doesnt matter; we wont have to deal with this] For our purposes, we should refer to statutory text and legislative history If we see contradicting sides, then we should argue that there is ambiguity or gap in statute Dahl: When Cong has explicitly left a gap for agency to fill. Prof: an explicit gap is where Congress says, we dont know whether it should be a bubble approach or a smokestack approach. We leave it to the agency to fill in the gap. There is no ambiguity here; it was specifically delegated to agency This would fall into arbitrary and capricious review We will encounter ambiguity as a result of words, and silences [**An advanced question**] Knoll: is the agency interpreting how much authority it has, or the term, and which one is relevant to this inquiry? At times agencies look to interpret outer boundary of their authority explicitly At times; they are the same thing (how much authority & term) Here, interpretation of motor vehicles expands overall scope of agency So an interpretation of authority can be same as interpretation of word Sometimes agency will issue a statement that we believe we have the authority to do something Deciding whether federal statute preempts state law Agencies will sometimes believe they have rules that trump state rules that conflict with this it is within our authority to decide whether our rules have preemptive force or not This impacts the overall scope of their power Courts have been reluctant to say that they get Chevron deference as to that Betancourt question: if court finds that statute is clear and agencys interpretation is unreasonable or finds after ambiguity that its unreasonable, what happens?

110 Does court impose its own interpretation, or does it send it back to the agency? In the ordinary case, if they find that interpretation of agency is invalid, (in both cases) they strike down rule, and it goes back to agency Prof: we trust congress in general to write things explicitlywhere Congress has been ambiguous, we trust agencies to figure it out Thus, we defer so long as its reasonable Chevron Test: How courts do/dont defer to agency interpretations of statutes Chevron questions: o Threshold inquiry (Step 0): Mead Corp.: Does the agencys interpretation carry the force of law? o 1. Is the statute that the agency is interpreting ambiguous on the precise question at issue? o 2. Is the agencys interpretation of that ambiguity reasonable? MCI and HUD: concrete examples of how courts do not defer to agency interpretations of arguably ambiguous statutory language where the court concludes that there is no ambiguity Mead Corp.: recasts Chevron doctrine, Chevron step 0 threshold inquiry

MCI v. AT&T (1994) p. 1052:

Communications Act of 1934: long distance carriers must file tariffs w/ the FCC and then charge only those rates; the filing requirement applies to everyone: o 203(b)(2): the commission may, in its discretion, and for good cause shown, modify any requirement made by or under the authority of this section either in particular instances or by general order applicable to special circumstances or conditions Facts: o AT&T was the only long-distance carrier when the statute was passed; thus only one bound by filing requirement o Deregulation new competitors, competition o New 1992 rule: filing of tariffs was optional for non-dominant carriers (i.e. everyone but AT&T) ISSUE: Whether the statutory term modify was ambiguous such that Chevron deference might apply. HOLDING: This rule is NOT within agencys authority to modify Supreme Court: o Communications Act conferred to FCC authority to modify any rule, BUT the FCC isn't modifying the rule, they are eviscerating the rule o Case turns on meaning of modify Agencys argument: Since different dictionaries give different definitions of modify the term is ambiguous. We interpret modify = change

111 If the word modify is found to be ambiguous the FCC would be entitled to deference SC adopts a definition of incremental/moderate changes which does not equate w/ rewriting the whole statute [Only 1 dictionary gives a definition that does not = incremental change] In these cases you can look to dictionaries and if they are all in agreement, there is no ambiguity, but one outlier does not necessarily mean ambiguity Agency action that is contrary to the clear grant of authority is invalid the action here was invalid o No Chevron deference to FCC on its interpretation of the word modify; the FCC does not even satisfy step 1 of the Chevron analysis, which is to find an ambiguity in the statute, the statute here is clear o Lilliputian exception: Congress left as an exception a small change that the agency could NOT modify; so it would be strange if Congress intended FCC to have massive authority but left as an exception a very small change that the FCC wouldnt have the power to make Class Discussion: Do you agree with the majority in this case or the dissent? o Agree with the dissent (Stevens): Mr. Vetter: should interpret "modify any requirement" broadly, give the agency a lot of latitude APA: allows the agency to modify any requirement Ms. Hanson's argument: Might agree with Justice Scalia that "modify" only authorizes modest change, but that this new rule itself is a modest change Even under the clear definition of modify, there is ambiguity as to whether agency's action is big vs. small change, thus agency should receive deference Professor Vignarajah: While this is a potent argument, it is not what is intended by Chevron because Chevron doesn't get agency an extra degree of latitude because of ambiguity in agency action, but only ambiguity in statute o Agree with the majority (Scalia) Ms. Estoesta: this isn't complicated, legal problem Just figure out what "modify" means in order to figure out what the agency's authority is Dictionary definition: modify means modest change Why is this a Chevron case? o Statute confers authority to agency and there is a question as to what exactly the authority is Here: the statute allows the FCC to modify the rule o FCC invokes the Chevron doctrine in arguing that the term modify is ambiguous Must find an ambiguity somewhere in the statute in order to invoke Chevron, i.e.: Words of statute are inconsistent w/ legislative history Words are themselves ambiguous

112 o Majority: "an agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear" Agency is only granted deference when there is ambiguity in the statute, Congress must be ambiguous, not the actions of the Agency o If the agency itself makes a rule, pursuant to the statute, that is ambiguous, the agency is not allowed to invoke Chevron deference Example: Motor Vehicles statute is vague Does this apply to just cars or boats as well? The agency can fill in the gaps Example: Like the case at hand, an agency takes an action that may or may not be a modification. This ambiguous act is not Chevron-worthy. Mr. Yeung: Why does Scalia choose to say that there is no ambiguity in the statute, as opposed to saying (in step 2) that the FCCs interpretation was unreasonable? o Mr. Rodkey: Scalia likes that words have meaning and thinks that courts are on much firmer footing finding that the statute was unambiguous than finding that the Agency, with its expertise, was unreasonable o Mr. Bellum: Agencies can't then come back w/ a different interpretation of the ambiguous statutory language for the court to examine; here there is no further room for agency interpretation What happens when the agency makes a reasonable interpretation of an ambiguous statute (satisfying Chevron) but is arbitrary and capricious for another reason? (what is the interplay btwn Chevron and other standards of review?) o This is possible: Some courts believe that Chevron step 2 and arbitrary and caprious are the same analysis; you could analyze under either but failing one will automatically mean failure of the other Some courts believe that Chevron is only an analysis of statutory interpretation

United States v. Mead Corp (2001) p. 1068:

Customs Act: US Custom Services is authorized outline tariff schedules according to categories Facts: o Mead day-planners used to be in the others category, but the USCS sent Mead a ruling letter stating that it would now be in the diaries etc. o Category of diaries etc. is assessed a 4% tariff instead of others which has no Mead now had to pay a tariff as a result of the reclassification ISSUE: Should Chevron deference apply even if Congress didnt give the agency authority to take actions that carry the force of law? HOLDING: There is no Chevron deference where the agencys actions do not carry the force of law

113 o There is no Chevron deference her because ruling letters do not carry the force of law Characteristics of ruling letters (why they dont care the force of law): o They aren't carried out by rulemaking or adjudication proceedings o No notice and comment requirements o No publication requirement o No reliance on ruling letters o Not binding on 3rd parties (i.e. here the letter only applied to Mead, not to other companies that make day-planners) o They are subject to change o 46 regional offices process 10,000-15,000 ruling letters each year We can assume that the agencys actions would be getting judicial deference if its actions carried the force of law o Why does this matter? It is more appropriate for the court to give the agency deference when the agency is acting at Congresss behest instead of on its own The only reason you get Chevron deference is because Congress intended you to get Chevron deference Congress will allow for Chevron deference by leaving an ambiguity in the statute Underlying implicit assumption: statutory ambiguity meant that Congress wanted the agency in charge of administering the statute to clarify & fix the ambiguities it left in the statute If Congress has not even given agency the power to make actions that carry the force of law, then it is not clear that Congress wanted the action to receive Chevron deference at all Argument in favor of Chevron deference: o "Other items" and "diaries" are ambiguous in their application to "3-ring day planner" o Thus, deference should be accorded to customs agency in its interpretation of tricky, ambiguous provisions Argument against Chevron deference: o Ruling letter raises new question of whether agency gets Chevron deference, even if Congress didn't give it the authority to take actions that carry the force of law o Court's answer: no Chevron deference if Congress didn't intend for agency to take actions that carry the force of law If an agency is acting pursuant to rulemaking or adjudication powers pursuant to the APA, we can presume that the output of that process (rule/order) carries the force of law and Chevron doctrine is available to that agency o However, we can't automatically assume that when an agency is not acting under rulemaking/adjudication, they do NOT get Chevron deference In this context, it doesn't automatically mean that the action doesn't carry the force of law (i.e., issuing a ruling letter) It carries the force of law if it is binding in nature, on more than 1 person Does the agency get any deference if it doesnt get Chevron deference? (Skidmore) o Even if an agency action doesnt carry the force of law (looks like the policy documents in Skidmore), they are still persuasive o Remand this case to see if USCS has any Skidmore deference

114 o Reconciles Mead with Skidmore: even if agency action doesn't carry the force of law, it looks similar to policy, non-binding statements of Skidmore that have the power to persuade Courts are expected to and allowed to look to persuasive agency determinations Courts are not bound to defer to agency interpretation under Chevron deference, but will allow agency opportunity to persuade, consistent with Skidmore Even if agency doesn't get Chevron deference, may get Skidmore deference, thus Supreme Court sent the case back to the Court of Appeals on the grounds that at least some Skidmore deference may be available What are the various triggers for ambiguity?

HUD v. Rucker (2002) p. 1091:

Anti-Drug Abuse Act of 1988: drug-related activity by a tenant, co-tenant or guest is cause for termination of that tenants lease: o Each public housing agency shall utilize leases...providing that...any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy. Facts: o Respondents were tenants whose relatives were found engaging in drug-activity in the parking lot/in a location other than the apartment itself, arguably w/out the tenants knowledge o HUD: doesnt matter if tenants knew about the activity; innocent tenants can be evicted respondents in this case were evicted ISSUE: Does HUDs interpretation, that an innocent tenant can be evicted, comport w/ the statute? o Chevron issue: apparent ambiguity over the knowledge requirement of this lease violation HOLDING: The agencys interpretation is valid Tenants: object to agency interpretation that imposes eviction grounds where tenant is innocent: o Tenants claim they didn't know that guests were involved in criminal activity o The agency's interpretation of "shall" is wrong: statute doesn't require the agency to have grounds for termination even in cases where tenants are innocent Supreme Court: o The text of the statute is crystal clear (although in the opposite direction that the Court of Appeals thought) o Chevron analysis: Where the text is clear, we need not look to the legislative history Evicted tenants resting on legislative history but Rehnquist will not look to it b/c the statutory text is clear No need for step 2 analysis b/c the statute is unambiguous

115 o Tenants argument: agency interpretation would result in absurd results If the statutory interpretation would result in absurd results, this might be a source of ambiguity Here, there are no absurd results, the statute only provides for grounds for eviction, not required eviction Constitutional Argument: the statute is unconstitutional b/c it deprives the tenants of housing w/out Due Process o Canon of constitutional avoidance Avoid the statutory construction that might create constitutional issues Only available if there is an ambiguity; i.e. ambiguity is not triggered by potential constitutional issues where the text is crystal clear o Court also finds that there is no constitutional problem with regard to the unambiguous statute Courts themselves can reach diametrically opposite conclusions about what a statute says, but this fact alone does not create ambiguity o This emphasizes that ambiguity is in the eye of the beholder

Discussion of Statutory Interpretation: Justices and courts take different positions on statutory interpretation. For the exam, you should take into account both the text and the legislative history. Four examples of reasonable statutory interpretation positions are:

1) Text Only (Scalia/Thomas/Rehnquist) Text is the beginning and end of the analysis. Legislative history is not used to discern congressional intent even when the text is ambiguous. 2) Text is Primary (Kennedy) The text of the statute is the beginning of the analysis, but you can also consider legislative history. Legislative history is a relevant consideration, but the text is the primary consideration. Criticized as similar to looking around a room of people and picking out your friends there will always be someone making statements that make it seem ambiguous 3) Legislative History is Primary (Breyer) Both text and legislative history are relevant, but legislative history is more authoritative. Response to textualist criticism is that all of the methods are subject to manipulation; its just as easy to play with words as it is to play with Congressmen. We can get a better sense of what Congress meant by looking at the history. We should start with what Congress wanted to accomplish and see if the text accomplishes what Congress wanted it to.

116 4) Legislative History v. Unclear Text (Stevens) If there is a conflict between clear legislative history and text, legislative history controls. In the Chevron context, Stevens position means that Chevron is not implicated where there is crystal clear legislative history, because there is no ambiguity, even though the actual text may be ambiguous. Question: Why is Breyer second from right instead of all the way over? Answer: Breyer would be reluctant to overrule clear text with legislative history would say that legislative history creates ambiguity.

Arent v. Shalala:
The Nutrition Labeling and Education Act of 1990: required the manufacturers of food to provide certain nutrition information on food labels, stores that carried raw food were subject to a voluntary scheme of labeling this food, but the FDA was required to turn this into a mandatory set of labeling requirements if stress were not in substantial compliance with the guidelines, they were to determine what substantial compliance meant: o The regulation shall provide that there is not substantial compliance if a significant number of retailers have failed to comply with the guidelines. The size of the retailers and the portion of the market served by the retailers in compliance with the guidelines shall be considered in determining whether the substantial-compliance standard has been met. Facts: o FDA defined substantial compliance as 90% of products from particular retailer, and 60% of stores as a whole. ISSUE: What standard of review should be applied in this case: Chevron step 2 or arbitrary and capricious? HOLDING: There should be arbitrary and capricious review in this case There is a lot of overlap between the two, but they should still be treated as separate standards. Argument for Chevron : o Arbitrary and capricious review is the type of approach you would use to see if the agency has looked at the proper considerations, the right types of issues are they ignoring other important factors? (very procedural approach) o Here: we have an ambiguous term and we have to figure out whether the definition is a reasonable one. I Its a little bit curious that when theres an ambiguous term, we assume that agency can define it and get Chevron deference, but here where Congress blatantly says you decide what this means and somehow that takes it out of Chevron and into arbitrary and capricious o Note though that arbitrary and capricious review is not entirely procedural, judges can consider substantive aspects of the decision. Argument for arbitrary and capricious review: o Chevron is appropriate when the question is whether the agency had the authority, arbitrary and capricious is appropriate when considering if the agencies use of authority was reasonable.

117 o Here: the view is that the FDA is clearly entitled and empowered to define what substantial compliance means, and the only question is whether the 90/60 definition is arbitrary and capricious Ms. Grozhansky: Does Chevron mean that theres already an ambiguous term? Why do we have to have this first step then to figure out if theres ambiguity? o You need a specific type of ambiguity, it has to be ambiguity as to what Congress intended in the statute and about the agencys authority, it doesnt matter if theres ambiguity in the regulation or factual finding; this doesnt trigger Chevron. o If the ambiguity that is at play impacts the type of things the agency can and cannot do, thats the type of ambiguity that might be entitled to Chevron deference. Examples: again the motor vehicle example: this has to do with the scope of the agencys authority, there are more subtle cases, such as Negusie, where the agencys authority is contingent upon some other determination. Ms. Bonifant: If I just read the statute, will I know that this may be a Chevron question? Or would I not know until I read the prompt? o You wouldnt know if its a Chevron question until you read the rest of the example, not just the statute, the ambiguity may not be exposed until the facts show something that makes the statute ambiguous o Dont assume that you will know whether something will be Chevron or arbitrary and capricious, you should think instead why one would be appropriate or not Consider ambiguity in the text or congressional intent, and talk about how this impacts the agencys interpretation.

NATIONAL CABLE & TELECOMMUNICATIONS ASSO. V. BRAND X:

Communications Act (1934): telecommunications companies are subject to common carrier rules Does a broadband provider qualify as a telecommunications provider? Facts: o The FCC determined, through an adjudication order, that broadband companies did not fall within the definition of telecommunications providers because they didn't provide the ultimate service to the consumer o There was clear ambiguity in the statute as to the agency's authority to regulate broadband companies, so the agency would normally get Chevron deference o In this case, however, the Court of Appeals had already made the opposite interpretive determination as the agency. ISSUE: Does Chevron deference trump stare decisis? HOLDING: The agency was entitled to Chevron deference o If the court determined that the law was unambiguous, that decision would be binding on the agency o If the court ruled that the statute was ambiguous (yet interpreted that ambiguity), the agency can still make its own determination and be entitled to deference despite the previous ruling Letting whoever gets there first control doesn't make any sense. Its the premise of the Chevron doctrine that if theres ambiguity, its the agencys role to fill that gap, its affirmative, not a passive o We assume Congress wanted the agency to clarify that gap and you would be

118 acting contrary to Congress by allowing a court to fill that gap o In the interim, we will allow a court to decide, but once the agency gets around to making that determination, then that is what stands Ossification argument: There is value to allowing an agency the flexibility to move back and forth and make various determinations o If we didnt allow agencies to come up with its own determination after the CoA determination, the law that the court came up with would harden, the courts determination would be frozen in place regardless of the agency's evolving expertise and experience. Scalia (dissenting): the interpretation of statute is the province of the courts and agencies should not be able to overrule them o Rulings can be overturned by Congress o If the agency has chosen to lay dormant for a while, and a court makes a determination, thats how it should be Note: We should not just make fun of the Thomas/Scalia duo, but should also make fun of Ginsburg/Souter.

Negusie v. Holder:
A person seeking asylum in the US will be denied if he or she persecuted others in his or her homeland: o The term refugee does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion Facts: o In this case the alien was rejected on these grounds despite the fact that he was forced to persecute others, the BIA refused to recognize a duress defense o The BIA felt compelled by the prior court decision in Fedorenko to disallow the duress defense. ISSUE: Is the agencys determination entitled to Chevron deference? HOLDING: Despite the ambiguity here, the agencys determination is no entitled to Chevron deference. The Court determined that the prior ruling, which interpreted a different statute, was not binding o The statute at issue in this case did not address the duress defense, so it was ambiguous through silence o BUT the agency's decision was made based on the previous Court case, not because of its own independent decision o The agency did not interpret the statute for itself not entitled to Chevron deference The agency must actually exercise the discretion conferred to the agency by the ambiguity in the statute to get Chevron deference o If the agency does not feel that it has the freedom to make the choice then it makes no sense to give them deference

119

JUDICAL REVIEW CHEVRON & AGENCY PRE-EMPTION OF STATE LAW

Wyeth v. Levine
Facts: Respondent, Levine, brought a state tort law claim against Wyeth, the manufacturer of Phenergan, an anti-nausea drug, after she was injected with the drug via the IV push method whereby the drug entered her artery, she developed gangrene, and doctors had to amputate her forearm Levine argues that Wyeth should have included better warning labels on Phenergan---warning labels that are in excess of what the FDA requires as a minimum Wyeth argues that Levines claims were pre-empted by federal law because Phenergans labeling had been approved by the FDA The jury found in favor of Levine and the state supreme court affirmed Relevant federal law: Federal Drug and Cosmetic Act Under VT law, a party could bring a tort claim (here claim is saying you, the drug manufacturer didnt give me sufficient warning of the side effects) This was a close decision (5-4 decision) Legal Q: Do FDA regulations preempt state law claim? What does preemption mean? o Doctrine under the Supremacy Clause: federal law explicitly or implicit that displaces stat.because federal law is supreme, Congress can write a law that can overwrite state law (results in one federal standard and no competing state laws) 2 kinds of preemption: explicit and implied preemption Admin Law Q: Did the FDA have the authority to state in the preamble that the rule could preempt the state law? (Note: there was no doubt that FDA had clear authority to make these rules and decisions that carry the force of law---thus, it COULD preempt state law)what happens when it is not clear whether FDA has the authority Holding: the Court held that the federal law did not preempt the state law claim.

120 Class Discussion: 1) What is your viewpoint of how the case turned out? - Mr. Rubin: the manufacturer in good faith was following the federal reg, including a reading of the preamble - Mr. Jeram: state has not imposed any new/additional requirements on the manufacturer o Prof: Why isnt a tort claim NOT like a new requirement? You now have to include this new piece of info Mr. Jeram: It doesnt put the manufacturer on notice that there are additional requirements on top of FDA reguations - Ms. Bonafonte: says that under the specific regulation here, it couldnt possibly be a ceiling since you, the manufacturer have a duty to update that info 2) Is this classic Chevron deference analysis? That is, should the agency be given deference to the agencys view as interpreted in the preamble? Prof: Does the FDA rule have pre-emptive effect. One question that would apply here is whether the agencys determination that its rule pre-empts state law itself carries the force of law. Congress did not authorize this, although it was possible for Congress to do so. If Congress did authorize it, the determination of pre-emptive effect would carry the force of law. In some sense, the agency was giving its view on pre-emption, but that decision didnt necessarily carry the force of law. Companies could not rely on the preamble stating preemption because it wasnt a rule, but rather an opinion. In this case, state tort law would apply. Why Chevron Doesnt Apply Here First, an agencys decision on its own rules pre-emptive effect must carry the force of law to be afforded Chevron deference. (Failure of Chevron step 0) Second, there was no ambiguity since Congress had explicitly provided for pre-emption in other parts of the law, but not in the section of the law at issue here. This shows Congress intent not to pre-empt state tort law. (Failure of Chevron step 0) Here silence does not necessarily create ambiguity; when silence occurs in contrast to other explicit statements in the law, the silence itself may be taken as clarity. 3) What about Skidmore deference---why did the Court decide that it was NOT appropriate here? First, the preamble never afforded the states actual notice of the agencys intent to begin its notice and comment rulemaking. It was not clear that the rule could possibly lead to federal pre-emption of the states laws. Skidmore deference may not be appropriate where the agencys statement on the matter suffers from a procedural defect. Here the pre-amble did not go through notice and comment period.

121

Second, the FDA was not consistent. It changed its prior position on pre-emption without explanation. Skidmore deference might have applied had the agency, based on its years of experience, given a reason such as its intent to preempt varying state tort laws to promote uniformity. Third, since Congress never explicitly intended to pre-empt state law, the FDAs position is not persuasive. Takeaway: It is not appropriate where the agencys statement on the matter suffers from some procedural defect

Ultimate take-away: whether Preemption is arguably a classic Chevron questionif there is ambiguity, implicates the authority of the agencydoes the rule set the floor or the ceiling? Court determines that Chevron is not appropriateuseful case to study as a counterpoint for all the things we have studied

122

JUDICAL REVIEW

GRAVITAS EXCEPTION TO CHEVRON DEFERENCE

FDA v. Brown & Williamson Tobacco Corp.

Facts: The FDA attempted to regulate tobacco products, claiming it had the authority to do so Issue: Does the FDA have the authority to regulate tobacco? Holding: No. The Court held that the FDA never had the authority to regulate tobacco products. Reasoning:

123

First, the FDA consistently said it didnt have such authority. Second, Congress only gave the FDA narrow grants of authority to regulate tobacco, all the while regulating tobacco itself. This shows Congress did not want the FDA to regulate tobacco, and it implicitly approved of the FDAs position that the FDA didnt have the authority to regulate tobacco. Third, the FDAs actions to reduce the use of tobacco were inconsistent with the purpose of the state granting it authority to regulate safe products. The FDA can either do clinical trials to make it safe or ban the produce. Under the statute, it cannot regulate to reduce the use of an unsafe product. Fourth, while Chevron deference would likely be appropriate since the word safety creates ambiguity, and the FDA administers the statute, this is an extraordinary case in that Congress was clear that the FDA did not have the authority to regulate tobacco. Extraordinary case exception to Chevron deference: If Congress is clear, the court may deny the agency deference due to the gravity of the case. Here, even though there was no ambiguity in the text, the issue is just too big. Tobacco is a $50 billion industry, and the FDA should not have the authority entirely to ban tobacco and regulate the industry; Congress should have that authority. Note: Brown v. Williamson is a good case of where an issue is too big (i.e. the regulation of tobacco products) and therefore Chevron analysis is not appropriate (even if there is ambiguity)

Tummino v. Torti
Facts: Plan B emergency contraceptive, aka morning after pill is only available through prescription Virtually all major industrialized nations allow Plan B or other emergency contraceptives to be sold over the counter Plaintiffs individuals and organizations advocating wider distribution of and access to emergency contraceptives, as well as parents and their minor children seeking access to the same brought this action challenging the denial of a Citizen Petition, which requested that the FDA make Plan B available without a prescription to women of all ages The FDA considered the Citizen Petition in tandem with a number of proposals referred to as supplemental new drug applications (SNDA) After the FDA denied such access, the Plan B sponsor (comprised of Womens Capital Corporation and Barr Pharmaceuticals) submitted a second SNDA, seeking nonprescription access for women 16 and older (The FDA rejected that application too despite nearly uniform agreement among FDA scientific review staff that women of all ages could use Plan B without a prescription safely and effectively) The Plan B sponsor then submitted a third SNDA, which proposed making Plan B available without a prescription to women 17 and older

124 While FDA scientists and senior officials found that 17 year olds could use Plan B safely without a prescription, the FDA Commissioner determined that, because of enforcement concerns, Plan B would be available without a prescription only to women 18 and older. Ps argue that the FDAs decisions regarding Plan B---on the Citizen Petition and the SNDAs were arbitrary and capricious because they were not the result of reasoned and good faith agency decision-making Issue: Was the FDAs decision to deny the Citizen Petition and the 3 SNDAs arbitrary and capricious? Holding: Yes, the FDAs decision was arbitrary and capricious. Reasoning: 1. Making decisions on the basis of political decisions is evidence of arbitrary & capricious decision making 2. Subjective bad faith will be evidence of arbitrary and capricious decision making 3. The agency didnt listen/adhere to the scientific panel to come up with a recommendation on this matter Class Discussion: Where do you come out on this case? Mr. Abrogast: the FDA did not act arbitrary and capricious because it was reasonable to balance scientific reasons with political reasons Ms. Radcliff: it doesnt rise to the level of arbitrary & capricious because the agency doesnt always have to follow their own panel Mr. Jose: The NLRB is not basing its decision on scientific datahere, the decision is almost entirely based on science therefore the info is objective Mr. Taylor: Science can be subjective, too. Mr. Vetter: there are 2 types of politics that should be distinguished---1) politics unconnected to the issue (not political ideology, which would be OK) Mr. Tressler: this decision was not arbitrary but it was capricious since the FDA was making decisions based on political ideology that would change from administration Mr. McKinsey: the FDA was considering things that they shouldnt have been these factors were not the ones that Congress told them to consider Prof: Arbitrary & capricious is a standard has so much to do with whether an agency is taking account of factors that Congress has instructed it to consider; and when it takes into account irrelevant factors, it is acting arbitrary and capricious; this is a good example of an issue-spotter type question where an agency is doing something crazy and it is taking into consideration both relevant and irrelevant factorsyou can refer to this case if you are trying to justify the position that subjective bad faith and.ora heavy reliance on political consideration is itself evidence of arbitrary & capricious decision making

General Rule Reliance on political considerations may constitute evidence of A&C action.

125

INDEX Abbott Labs..................................................92 additional requirement.................................32 Adjudication.................................................27 ADJUDICATION DECISIONS..................37 ADJUDICATIONS......................................29 Adjudicative facts........................................48 Allen v. Wright............................................89 Allentown Mack Sales v. NLRB.................97 APA STANDARDS AND OTHER LAWS31 APPOINTMENT OF OFFICERS BY JUDICIARY.............................................14 ARBITRARY AND CAPRICIOUS REVIEW..................................................99 Arent v. Shalala..........................................116 Armstrong v. Commodities Futures Trading Commission..............................................37 bad faith......................................................124 Bell Aerospace.............................................72 BENEFITS...................................................84

126 Bi-Metallic Investment Co...........................29 bicameralism................................................19 Bowen v. Georgetown University Hospital.75 Brown & Williamson Tobacco Corp.........122 bulletin........................................................106 Castillo-Villagra v. INS...............................47 Chenery II.....................................................71 CHEVRON DEFERENCE........................106 Chevron Test..............................................110 Chevron v. NRDC......................................107 citizen suit provision....................................91 Clinton v NY................................................24 Concise and general statement.....................65 CONCISE GENERAL STATEMENT..63, 66 Concurrent jurisdiction..................................2 contrary to public interest............................68 COST..............................................................3 costs............................................................4, 5 CRIMINAL PUNISHMENTS AND SENTENCING...........................................6 death penalty..................................................8 decisional independence..............................43 declining to engage in rule making................3 declining to regulate.......................................3 delegation.......................................................1 Dickinson v. Zurko......................................31 disability.......................................................86 DISABILITY...............................................84 discretion........................................................3 due process...................................................86 DUE PROCESS...........................................29 efficient government......................................6 Epilepsy Foundation....................................74 ERRORS IN THE FINAL RULE................68 evidentiary hearing.......................................84 evidentiary hearing factors...........................86 EX PARTE COMMUNICATIONS............46 ex parte communications from the President ..................................................................46 EX PARTE COMMUNICATIONS IN RULEMAKING.......................................81 extraneous factors......................................103 Federal Election Commission v. Akins.......90 Field v. Clark................................................26 fixed term of 7 years....................................12 force of law........................................106, 112 FTC v. Cement Institute...............................43 generalized grievance...................................91 Goldberg v. Kelly.........................................84 Good cause...................................................13 Government Interest.....................................86 GRAVITAS EXCEPTION TO CHEVRON DEFERENCE.........................................122

127 HARMLESS ERROR..................................56 HBO v. FCC.................................................81 hearing..........................................................30 HEARING....................................................29 HEARINGS ON THE RECORD................34 HUD v. Rucker..........................................114 Humphrey's Executor v. United States........12 impracticable................................................68 Independent Council....................................13 Independent U.S. Tanker Owners Committee ..................................................................66 ineffective assistance of counsel..................49 inferior officer..............................................14 INFERIOR OFFICERS...............................10 informal rulemaking.....................................55 injury............................................................90 INS v. Chadha..............................................18 intelligible principle.......................................4 INTELLIGIBLE PRINCIPLE.......................3 interpret........................................................51 investigating and adjudicating.....................44 INVESTIGATIVE AND ADJUDICATORY FUNCTIONS...........................................44 LEGISLATIVE DELEGATION...............1, 3 LEGISLATIVE DELEGATION SUMMARY...............................................8 Legislative facts...........................................48 LEGISLATIVE VETO................................17 LINE ITEM VETO......................................24 LOGICAL OUTGROWTH.........................60 Londoner v. Denver.....................................29 Loving v. US..................................................8 Massachusetts v. EPA....................................1 Mathews v. Eldridge....................................86 Matter of Compean......................................48 MCI v. AT&T............................................110 Mead Corp..................................................112 mental processes..........................................40 MENTAL PROCESSES..............................39 Mistretta v. US...............................................7 Morgan I.......................................................39 Morgan II.....................................................40 Morrison v. Olson........................................13 Myers v. United States.................................11 NATIONAL CABLE.................................117 Neguise v. Holder........................................50 Negusie v. Holder......................................118 no guesswork rule........................................70 NOTICE.......................................................39 notice and opportunity to be heard..............41 NRDC v. EPA..............................................60 on the record.................................................34 ON THE RECORD......................................54

128 ONE WHO HEARS MUST DECIDE.........39 Overton Park v. Volpe.................................99 Peer review program....................................42 penalties for drug offenses.............................7 Persecutor Bar..............................................50 political decisions.......................................124 Portland Audubon Society v. Endangered Species Cmte............................................46 postmaster general........................................11 PRE-EMPTION OF STATE LAW...........119 PRE-ENFORCEMENT REVIEW...............92 presentment..................................................19 PRESIDENTIAL APPOINTMENTS AND REMOVAL..............................................10 presidential policy..........................................2 Private Interest.............................................86 PROCEDURAL REQUIRMENTS OUTSIDE APA........................................58 PROCEDURAL VIOLATIONS OF RULEMAKING.......................................56 Production quotas.........................................43 Professional Pilots Federation v. FAA........78 purely executive officers..............................12 QUALITY STANDARDS FOR ADJUDICATORS....................................42 quasi-leg and quasi-judicial officer.............12 question of law and fact...............................37 Rate of reversal............................................43 reasonably anticipated..................................61 reasoning......................................................70 REFUSAL TO MAKE RULES...................78 REFUSAL TO REGULATE.........................1 Refusing to take enforcement action.............3 regulate.......................................................1, 4 RETROACTIVE RULEMAKING..............71 RIGHT TO COUNSEL IN ADJUDICATIONS..................................88 rights.............................................................21 Risk of Erroneous Deprivation....................86 rule affects a broad group of people............29 Rulemaking..................................................28 RULEMAKING...........................................53 RULEMAKING THROUGH ADJUDICATION....................................70 rules affect a small number of people..........29 ruling letter.................................................112 scientific panel...........................................124 Seacoast Anti-Pollution League v. Costle...34 SEC v. Chenery............................................70 Senator..........................................................82 sentencing commission..................................7 Shaws Supermarket....................................72 Sierra Club v. Costle....................................82 SKIDMORE DEFERENCE......................105

129 Skidmore v. Swift......................................105 STANDING.................................................89 stare decisis................................................117 State Farm Insurance Co............................102 SUBSTANTIAL EVIDENCE REVIEW....96 substantially agrees......................................37 substantially correct.....................................37 Sugar Cane Growers Cooperative of Florida ..................................................................56 SUPERIOR OFFICERS..............................10 testified in front of congress........................44 Touby v. US...................................................6 Tummino v. Torti.......................................123 uniform standard..........................................32 United States v. Florida East Coast Railway ..................................................................54 United States v. Nova Scotia Food Products Corp..........................................................63 Universal Camera Corp................................96 unnecessary..................................................68 Utility Solid Waste Activities Group...........68 Vermont Yankee Nuclear Power Corp........58 veto items off a pre-determined list.............26 Walters v. Natl Assc of Radiation Srvs.......88 WELFARE...................................................84 Whitman v. American Trucking....................4 Wintrow v. Larkin........................................44 Wong Yang Sung v. McGrath.....................30 Wyeth v. Levine.........................................119