Administrative Law - Abramowicz - Fall 2008_3

8/20/2019 Administrative Law - Abramowicz - Fall 2008_3

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Administrative Law Outline

1) Introa) Agency=authority of the US

i) can be 1 person, can exist within larger agencyii) Cts decide what entities are agencies

iii) Cong has authority to create agencies under the necessary and proper clause.i) Creates agencies with an organic statute) A!A regulates operations of "any federal agencies #$ U.S.C.)

b) Agency structurei) single%headed usually executie #head re"oable by pres)& "ulti%"e"ber agency usually

independent #head re"oable with cause)'accountabilityc) (ondoner . City and County of ener #1*+)

-) Scope of udicial /eiewa) /eiew of the 0acts

i) Substantial idence 2est for 0or"al !roceedings#1) $ U.S.C. 3 4+5#-)#)'reiew of facts in for"al proceedings6 72he reiewing court shall . . .

#-) hold unlawful and set aside agency action, findings, and conclusions found to be . . . #e)

unsupported by substantial evidence in a case sub8ect to 33 $$5 9 $$4 of this title orotherwise reiewed on the record of an agency hearing proided by statute . . . . I" "a:ingthe foregoing deter"inations, the court shall reiew the whole record or those parts of it cited by a party, and due account shall be ta:en of the rule of pre8udicial error.;

#-) Uniersal Ca"era .


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agencyH id agency correctly deter"ine that newsboys are e@ees. Ct does de noo on 1' purely legal Juestion of whether C( defines e@ees. Says C( is unclear, so no. - defer toagency@s expertise in its deter"ination of factual issue.

#>) B@(eary #US 1*$1)'#A!A now passed) Ct resoles the legal Juestion'don@t apply C( defof scope of e"ploy"ent, all reasonable rescue atte"pts are in scope. Khat is reasonable is aJuestion of fact, leae this to agency #they say it was).

#) /U( 0/BL F/AM, GA/S2 A


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than Cheron deference for agency interp of a"big statutory ter"s #but either interp isreasonable or notP).

#>) Constitutional Latters#a)


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#-) AriEona Frocery #US 1*>-)'agencies are bound by their own rules, and "ust interpret the"in a plausible way.

#>) So, Ad"in interpretation of its own regulation is binding on the Ct #Se"inole /oc:) and theagency #AD Frocery)

#) FonEales . B/ #US -++5)'B/ law allows rs to prescribe drugs to ter"inally ill patientsfor suicide. AF issues interp rule saying that suicide is not a 7legit purpose; as reJ@d "y

B reg of CSA, and that AF will reo:e registration of rs who prescribe drugs for suicideunder public interest discretion. Ct says #1) no Auer deference bc reg parrots statute, soJuestion is re "eaning of statute. #-)


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#1) !olicy deter"inations "ay be the result of6#a) interpreting an a"biguity in an express delegation #e.g. setting the exact nu"ber in a

range)#b) co"bining policy and law #e.g. 7par: serice shall build a tall fence;'agency@s power to

decide how tall is i"plicitly delegated, and setting the height is a Juestion of policy)#c) deciding whether or not to act #e.g. agency deter"ination on how to allocate its resources

is a policy Juestion. )'agency is bound by its own precedent unless it can distinguish othercases under traditional principles of co""on law interpretation.

iii) Applying the Gard (oo: octrine and Cheron Step -#1) debate'scholars #Silber"an . (awson) whether hard loo: = Cheron step -, or whether

Cheron step - is distinct bc it includes reiew of agency@s legal interpretations, respectiely.#-) Center for Auto Safety . 0GA #C Cir 1**-)'bridge inspection a"end"ents re"anded bc

agency "ust set a "ax #cannot hae indef V of extensions)'sig, loo: at law only in step 1,

not step -, and defer where absence of facts, where the agency co"plies with 3.#>) US 2eleco" Ass@n . 0CC #C Cir -+++)'0CC reJuired teleco" co"panies to retain "ore

7call I info; and the Ct re"ands bc the 0CC@s definition of that ter" is unreasonablyinclusie A


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#a) before Cheron, agency@s were engaging in creatie statutory interpretation. Cts pretended that they can find out what Cong "eant, but they didn@t "ean anything.Cheron was responsie to that'leae a"biguities to agencyP

#b) It@s better to resole policy issues as policy issues, rather than as legal issues. Agenciesare better at this than Cts.

#-) Scalia

#a) /e8ects so"e argu"ents#i) expertise

1. the Juestion is not who has the best answer, it@s to who" the decision%"a:ing power belongsP

#ii) separation of powers1. it@s not inappropriate for Cts to engage in legal reasoning'if Cong gae de noo

reiew in an organic 3 we could do that. And Cts do policy reasoning all the ti"e#deter"ine if the law is absurd

-. Khat "atters is about Congressional intentP>. Cong wants the agency to decide these things'they can control the agency, they

are "ore predictable#>) Lerrill

#a) A!A says Cts shall decide all Juestions of law#i) "aybe there should be de noo on Juestions of law

#b) Cheron does not pro"ote accountability#i) "ost ad"in issues are s"all, so no accountability

>) Aailability of udicial /eiewa) A!A 3 4+1#a)

i) 8udicial reiew doesn@t apply #only) 7to the extent that'#1) statutes preclude 8udicial reiew& or#-) agency action is co""itted to the agency discretion by law.;

b) xpress and I"plied !reclusioni) Fenerally

#1) 2here is a presu"ption of reiewability under the A!A#-) 2o defeat the presu"ption of 8udicial reiew, the Ct "ust find clear and conincing eidence

that Cong intended to preclude.#>) 2here are > ways to defeat presu"ption of 8udicial reiew6 #1) specific language& #-)

conte"poraneous 8udicial construction followed by congressional acJuiescence& #>)inferences of intent drawn fro" the statutory sche"e as a whole. # Block )

ii) xpress#1) Shaughnessy #US 1*$$)'Tfinal@ deportation orders are the final ad"inistratie action, but the

language is not strong enough to preclude 8udicial reiew. SIF, after A!A act passed, Cts are"ore reluctant to read preclusion into the statute.

#-) eteran@s enefits cases#a) Cong was trying to de%8udicialiEe eteran@s benefits proceedings, wrote in statute

7decision of benefits shall be final and conclusie and not other official or Ct of the USshall hae power or 8dxn to reiew any such decision.;

#b) Kell"an #C Cir 1*$)'Ct li"its preclusie effect applies only to obtaining benefits,not their ter"ination. SIF6 Ct creating distinctions that are not textually 8ustified toensure 8udicial reiew. Cong a"ended law

#c) ohnson . /obinson #US 1*4)'conscientious ob8ectors don@t get benefits. Ct found ithad 8dxn oer the challenge bc of Constitutional doubt doctrine #een though 3 wasclear).#i) urisdiction Stripping'It@s neer been resoled whether Cong can re"oe S.Ct.@s

8dxn to reiew Const clai"s that arise in real cases.


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#d) 2raynor . 2urnage #US 1*)'challenge that the regulation is inconsistent with thestatute can be brought. Cheron reiews of this nature "ight be Const protected.

iii) !artial #xpress) !reclusion#1) Keinberger #US 1*4$)%%3 precludes widows who were "arried to the deceased less than *

"o, and their children, fro" een bringing an action #7no action against the US shall be brought to recoer on any clai" arising under the act;). 2his is express partial preclusion bc

3 is super clear and proides for constitutional challenges through another section.#a) SIF6 if there is one "ethod of reiew, Ct will allow Cong to preclude another particular

"ethod of reiew.i) I"plied !reclusion

#1) Switch"en@s Union . )'no 8udicial reiew of bargaining units 'there is an i"plied preclusion bc 8.r. at this preli"inary stage would cause the litigation togo on indefinitely without eer reaching the "erits. SIF6 early case, was thought to be anout%stander bc context of unions during the new deal.

#-) loc: . Co""unity


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ii) 0or an agency@s discretionary decisions, do you reiew under abuse of discretion standard #4+5#-)#A)) or is there ) Agency Inaction

#a) Gec:ler . Cheney #1*$)'death row in"ate petitions 0A to start enforce"ent proceedings against prosecutors for using drugs for lethal in8ection #not safe andeffectie). !resu"ption of unreiewability when agency fails to initiate enforce"ent proceedings& presu"ption "ay be #but wasn@t here) oerco"e by Cong intent to reJuireagency action.

#b) A!A 3 4+5#1) gies cts authority to co"pel agency action unlawfully withheld or

unreasonable delayed& A) defines act to include o"issions. )'Agency allocation of lu"p su" appropriations are withinagency discretion, such that they are not sub8ect to 8udicial reiew under A!A 4+1#a)#-).Souter bac:s away fro" the 7no law to apply; standard& loo:s at policy and tradition and#lac: of) 3 restrictions on agency@s discretion to find no reiewability.

#5) SIF6 7no law to apply; is not the law, now it@s a context sensitie inJuiry #(incoln andKebster)

d) Standingi) Fenerally

#1) olution#a) "ust hae an in8ury to sue #de"urrer)

#-) ustification#a) Separation of !owers'8udges decide Juestions of indiidual rights, resoling real

clai"s. roader policy issues are for Cong or xec.


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#b) Case and Controersy reJno adisory opinions

#c) !reent 0riolous suits#d) igor of litigation #argue better when you really care)#e) "anipulation of the path of decision%"a:ing

ii) 2he Constitutional /eJuire"ent#1) 0rothingha" #1*->)'taxpayer has no standing in suit to en8oin federal spending on a welfare

progra". #1) FeneraliEed grieance, that is "inute and uncertain& #-) policy'too "anysuits& #>) Sep of !ower.#a) Ct neer "ade clear whether this was a Cons or prudential decision

#-) (u8an #1**-)' Standing is a Const reJuire"ent& Cong cannot grant it where it does not exist.X hae no standing bc no in8ury in fact #dead crocs are not i""inent) and not redressable#8oint regulation)#a) >%part test for Const standing

#i) in8ury in fact1. inasion of a legally protected interest

a. concrete and particulariEed b. actual or i""inent

-. causal connection

a. in8ury caused by Q>. redressability

a. "ust be 7li:ely; that it can be fixed by 8udicial re"edy b. greater than halfH as co"pared to speculatieH

#>) Spear'Xs sue BI for issuing license #safe harbor) to other agency to build irrigation pro8ect #license that no har" to endangered fishes, Xs interest is econo"ic in high waterleels). X hae standing bc at co"plaint stage the burden is lower'#1) although "aybewater leels won@t drop, threat is enough for in8ury%in%fact& #-) although other agency "ustact, causation is fairly traceable& #>) although other agency "ight act wo license, is coercieenough that reo:ing it is a re"edy.

#) A:ins'group of oters has standing to sue 0C for not finding a group to be a politicalco""ittee #want disclosure of its info)'standing bc een though info is sa"e for all

#general), they all hae different reasons for caring about the info #particulariEed)#$) (aidlaw #-+++)'Standing in citiEen suit against polluter #een where rier is not polluted)

bc Xs en8oy"ent of affected area is lessened=in8ury in fact and ciil penalty=deterrence=redress.

iii) 2he Statutory /eJuire"ent#1) Fenerally

#a) 3 4+-#i) /ight of reiew for 7a person suffering legal wrong bc of agency action, or adersely

affected or aggrieed by agency action win the "eaning of a releant 3;#ii) Leans agency "ust hae iolated your C( rights, B/

1. #can@t sue for lawful co"petition, een if co"petition results fro" unlawful act' e.g. co"peting store got land thru fraudno CoA)

#iii) adersely affected you under its organic 31. e.g. 0CC wrongly grants license to 1 station, not 1- other alid applicants'they

hae no incentie to sue, but existing station does #preent co"petition) butunder C( has no standing. ut under A!A can sue bc are adersely affected byagency@s action.

#b) olutionary Cases#i) ?ansas City #C Cir 1*$$)'narrow interp of 7legal har"; didn@t include

co"petition fro" unlawfully subsidiEed co"petitors.


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#ii) Scenic Gudson !reseration Conf #-d Cir 1*5$)'Xs had standing bc een thoughno 7legal har"; had special reason to be concerned #trails "ight flood=econo"icgrieance)

#iii)United Church of Christ . 0CC #C Cir 1*55)'Xs clai" in8ury bc 0CC didn@trepeal license of racist station. S2A


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including ris: of undue pre8udice and agency co"petency. Gere, the ti"etable wasunreasonable and the prison@s couldn@t grant YY da"ages so litigant@s interests win out.

iii) A!A#1) 3 4+'agency deter"ination that is otherwise final is final regardless of whether

reconsideration is sought, unless agency reJuires reconsideration by rule, and proides that inthe "ean ti"e the decision is inoperatie.

#a) Ct interprets finality to "ean exhaustion. 2he concepts are only distinct where you arereJuired to see: reconsideration.

#-) /e"edy xhaustion#a) arby'unless organic statute reJuires that you "oe for reconsideration of your final

deter"ination, you can reiew it in the Cts under 33 4+- 9 4+.#>) Issue xhaustion

#a) Si""s #US)'SS benefits denied, exhausted procedure but not issues. Ct says in thiscase #not generally) you don@t hae to exhaust issues to get 8udicial reiew bc notadersarial and infor"al.

f) 0inalityi) Standard Bil'X sues bc 02C filed a co"plaint against the", when 3 only allows this if 02C has

7reason to beliee; bad actions. Ct says no reiew bc not final.


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1. !olicy6 resources, certainty#b) substantie challenges #other than statutory)

#i) #factualapplication or policy)#ii) Can challenge on petition, but is li"ited. Ct@s will defer to agency decisions not to

rescind a regulation bc of scarce resources'they only hae to pass the Gard (oo:octrine

#c) conflict with statute#i) Can challenge this no "atter what #) ris: of error is less bc policearrested hi".

b)


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#c) 0ield #1*-)'!res deter"ines when other country has i"posed unreasonable traderestrictions, then he lifts our trade ag"t. B: bc !res exercises no discretion #but there isdiscretion in when condition is "et, 8ust not in response)

#d) Ga"pton #1*-)'xecutie "ay define the cost of production in assessing duties.A"biguity is fine, as long as Cong sets out an 7Intelligible !rinciple;

#) $)'!res authority to authoriEe trade groups@ codes of fair co"petition istoo broad. Cong@s li"itations "ust affir"atiely say what pres can do, not 8ustli"itations on what he can do #e.g. where he can get the definitions fro")#i) SIF6 got regulation oer the industry was the big Juestion of the day, and the Cts

didn@t let Cong delegate it.#c) Ma:us #1*)'B!A sets prices that are 7fair and eJuitable.; Ct upholds delegation, and

distinguishes Schechter bc here we are regulating a public agency #not trade group),there would be 8udicial reiew, and an intelligible principle#i) SIF6 distinction is irreleant today bc both would be reiewed under the Gard (oo:

octrineii) 2he Lodern ersion

#1) Lisretta . US #1**)'Cong delegation to US Sentencing Co""ission to "a:e sentencingguidelines is upheld under the intelligible principle standard. SIF6 guidance wascontradicting policies. ecided on #1) Set out tools for co""ission #grid, what policiescouldn@t and could be considered& and #-) ery tough tas:'good for expert agency

iii) xceptionsH#1) S:inner #1**)'agency set user fee for natural gas pipelines. 2he


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) Co""entary on elegation#1) agencies are unelected. ut "aybe we get accountability through indirect de"ocracy. And

it@s not li:e there@s accountability through Congress.c) Appoint"ent of Agency Bfficials

i) Appoint"ent Clause #Art. - 3 - #-))#1) !rincipal officers6 if Const doesn@t say how they are appointed #!, delegates, etc), then Cong

establishes their position by law, and the !resident appoints the person#-) Inferior officers6 Cong "ay est appoint"ent of inferior officer as they thin: proper in the

!res alone, or the Cts or heads of epts.#a) oes this "ean there can be appoint"ents bt branchesH

ii) Bfficers . "ployees#1) uc:ley . aleo #US 1*45)'#0C case) an Bfficer is so"eone exercising 7significant

authority; on behalf of the US. (oo: for6 #1) discretion& #-) enforce"ent authority& #>)rule"a:ing authority.

#-) (andry #C Cir -+++)'A(s are not inferior officers, so don@t need to be appointed by thehead of the ept. istinguish fro" Special 2rial udges in 2ax Ct bc A(@s don@t "a:e finaldecisions.

iii) !rincipal . Inferior

#1) Lorrison #1*)'IC is an inferior office, so appoint"ent by the Special iision is proper.(oo: at6 #1) re"oability& #-) scope of duties& #>) scope of 8dxn& #) length of tenure. nsurethat interbranch app@t doesn@t frustrate function of each branch.

#-) d"ond #US 1**4)'Coast Fuard udges are inferior officers. 2est here is whether there is asuperior #other than !res) and how "uch control they exert oer you. AF and CAA0 aresuperior bc can re"oe wo cause and can oerturn w slight deference.

#>) 0reytag #1**1)'special trial 8udges of the 2ax Ct are inferior officers. $% split as to whether they are properly appointed bc the 2ax Ct is 8udicial, so App@ts clause doesn@t apply, or because the C of the 2ax Ct is the head of the depart"ent so can appoint inf officers.

i) )'Cong puts Chief of ngineers of the Ar"y on the Co""ission todeelop /oc: Cree: !ar:. Cong expanded the duties of a "ilitary officer #superior officer) but he doesn@t need reappoint"ent bc the duties are 7ger"ane.;

#>) Keiss #US 1**)'Lilitary udge is appointed fro" co""issioned officers. on@t need toreappoint hi" bc #1) is ger"ane'all "ilitary officers deal w discipline to so"e extent& and#-) there is a large nu"ber to chose fro", so it@s ery dissi"ilar to Cong choosing theappointee for the position it@s created. SIF6 ger"aneness is enough, but lower standard ofger"aneness when large pool of candidates.

d) /e"oal of Agency Bfficialsi) Intro

#1) Constitution does not hae a /e"oal clause#a) so"e procedures for specific offices and i"peach"ent, and fix tenure for 8udges

#-) 2heories of re"oal power #a) I"peach"ent or nd of 2er"#b) /e"oal is Inherent in xecutie !ower #7esting; !ower)#c) Cong can (egislate /e"oal !ower #gie it to exec, :eep if for itself'0ra"ers didn@t

thin: it of Const i"portance)#d) /e"oal 2rac:s Appoint"ent #Cong approal of re"oal of officers or, "ore reasonable,

can re"oe by replacing)#>) arly Gistory


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#a) ecision of 14*'1st Cong decided !res had power to re"oe #but unclear whether thisis theory - or >)

#b) Larbury . Ladison'Co""ission was granted but neer deliered, then !res ignored.SIF that !res didn@t thin: he could re"oe Larbury easily, and in dicta Larshall i"pliesthat he perhaps couldn@t.

#c) 2enure of Bffice Act of 154'Cong was worried that ac:son wouldn@t continue

/econstruction after (incoln died. Under the statute, all presidentially appointed officerscould :eep their positions until their successor was appointed, and a "onth into the next person@s ter". ac:son opposed, and was i"peached and al"ost conicted oer it.

#) Unitary xecutie 2heory#a) (awson6 the re"oal power is superfluous or insufficient. !erhaps he cannot step into

the shoes of his subordinate, but he can certainly oid any action that is contrary to presidential instructions. If the pres can oid, he has power een if subordinate can@t bere"oed, if not, the power is exercised against his wishes, een though the person "ight be re"oed.

#b) Calabrisi6 7ested; "eans the entire power is in Cts, or Cong, or in !res #not theexecutie branch).

ii) arly Cases

#1) Lyers #1*-5)'!res re"oed !ost"asters of the first class. Ct affir"s6 states new about legre"oal and didn@t enact it& would be "ore e"barrassing to pres than botched appoint"ent&coered by $)'Cong can li"it !res@s re"oal power for positions that areJuasi%8udicialJuasi%legislatie. Statute said !res "ay re"oe officer of 02C for cause #Ctread in an 7if and only if; reJ). istinguish Lyers by saying exec has unfettered re"oal power only re positions that are purely executie.

iii) Lodern octrine#1) owsher . Synar #1*5)'Co"ptroller Feneral would "a:e across the board cuts to budget

if Cong didn@t "eet budget reduction goals. CF re"oable by 8oint Cong resolution.La8ority of Ct says Cong can@t resere re"oal power for itself bc CF is an executie

officer.#-) Lorrison'2he AF #not pres.) can re"oe IC, and only for cause. 2his is o:ay bc re"oal

power isn@t co"pletely stripped fro" executie branch. 2he only li"itation is that Congcannot interfere w the president@s ability to exercise executie power.#a) Scalia@s dissent6 shoc:ed that Ct will ad"it this is a purely executie position and

nonetheless allow Cong to li"it !res@s re"oal power.$) 2he Ad"inistratie !rocedure Act

a) Introi) Adoption of the A!A

#1) In 1*5, by 2ru"an, after 0/ had fought with 8udges to expand rule of gotii) !roisional /ule"a:ing

#1) 3 $$>#c)'Infor"al /ule"a:ing is the default.

#a) /eJuire written sub"ission #not oral, though you "ay hae oral)#b) If the organic statute reJuires that rules be "ade on the record after the opportunity for an

agency hearing, then it ino:es 33 $$5%$4, but when it@s a"biguous Cts interpret theorganic statute to refer to infor"al rule"a:ing.

#-) 3 $$5#d)'0or"al Gearing entitle"ents#a) cross%exa", presentation#b) last sentence6 if no pre8udice, "ay be done by written sub"ission

#>) 3 $$4 #b)'appeal A( decision to agency b) #2he "oe away fro") 0or"al /ule"a:ing


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i) Allegheny%(udlu" Steel Corp #US 1*4-)'allow ICC to "a:e rule affecting // car borrowing by Infor"al rule"a:ing.

ii) 0/C #US 1*4>)'allow ICC to "a:e rule through infor"al rule"a:ing "ore blatantly. Saystatute reJuiring a 7hearing; W for"al procedures.#1) Set infor"al rule"a:ing as default#-) (oo: to Cong@s intent to see if they wanted for"al procedures

#>) /egulations "ay reJuire for"al hearing where organic statute does notc) Infor"al /ule"a:ing

i) istinct bc reJuire notice and co""ent, but no co"pelled production of infor"ation, no cross%exa"ination, and generally written sub"issions rather than oral argu"ents.

ii) 2he er"ont Man:ee octrine#1) Can@t read additional procedural reJuire"ents into the A!A#-) ) issuance or not of final rule and the state"ent of its basis and purpose. 2 Man:ee only li"its Cts fro" expanding procedure related to step -.Cts can still expand procedural reJuire"ents for notice and the state"ent.

iii) /eJuire"ents6i) #b)#a) notice of proposed rule"a:ing will be published in 0ed/eg#b) ter"s or substance #of what is relied on)

#-) !ortland Ce"ent'!A published exact words of rule, but not the study it relied on' insufficient notice'"ust proide the other side with bac:ground so they "ay "a:e"eaningful, infor"ed co""ents

#>) C2 (ight #C Cir 1*-)'pro"ulgated nuclear safety regulations are "ore stringent, lessflexible, than proposed, but exception for existing plants. #1) notice is adeJuate #assu"e parties are fa"iliar with industry)& #-) no renotice reJuire"ent if rule is logical outgrowth of proposed rule #here, the fact that agency re"oed part of it to ad8udication practically "a:esit consistent)& #>) State"entustification'8ust good enough.#a) SIF6 logical outgrowth& rule"a:ingad8

#) ) /eyblatt . US


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#$) If agency adds new infor"ation on the regulation, but doesn@t change its "ethodology orfactual support, then there is no new co""ent period'/ybeche: #added 5? of pages, but it@so:ay).

i) 3 $$>#d)#1) /ule "ust be published >+ days before it beco"es effectie

ii) Gybrid /ule"a:ing

#1) hybrid rule"a:ing is created by statute by congress. basically, it is a statute that wouldnor"ally allow an agency to do infor"al rule"a:ing, but the statute itself adds additional procedural hurdles not found in the A!A that the agency "ust oerco"e when rule"a:ing pursuant to the statute. the courts #especially the dc circuit court) used to try to i"pose added procedures to create their own brand of hybrid rule"a:ing, but the supre"e court bitchslapped the" down in Vermont Yankee and told the" that they can no longer reJuireagencies to 8u"p through procedural hoops that are not enu"erated in the A!A.

iii) #a)

#a) "ilitary or foreign affairs functions of the US #"ust act Juic:ly)& "atters relating toagency "anage"ent or personnel #assu"e that who fill the posts doesn@t "atter y"uch)& public property, loansNcontracts #agency is spending its own "oney, so has

incenties to be careful, and we already hae a chec: for got ?s)#-) La8or exceptions%%3 $$>#b)

#a) $$>#b)#a)'!rocedure /ules6 interpretie rules, general state"ents of policy or rules ofagency organiEation, procedure or practice

#b) $$>#b)#b)'Feneral scape Gatch6 when agency for good cause finds #and incorporatesgood cause) that notice and public procedure are i"practicable, unnecessary or contraryto public interest

#>) Scope%%3 $$>#c)#a) notice'for"al . infor"al

#) >+ day exceptions%%3 $$>#d)#a) no >+ day notice reJ for interp rules, policy state"ents or deregulatory rules, and good

cause reJ.

ix) !rocedural /ules#1) !olicy /ules exe"pt fro"


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#a) do"inant approach today#b) #fine schedule)#c) If agency is adhering to it li:e it@s a leg rule, then it is.

#$) /ules . Standards'!rocessionals 9 !atent@s for Custo"iEed Care . Shalala #$th Cir 1**$)#a) #co"pounding phar"acists)#b) standard #w "any factors) "ore li:ely to be interpretie rule

#5) Intent to xercise'A" Lining#a) #reporting xrays diagnosing "iners lung)#b) legislatie rule if power was delegated to agency, and agency intended to exercise it.#c) 0actors6 #1) Can be enforce in the absence of a rule& #-) Is it published in the C0/& #>)

Gas the agency explicitly ino:ed its legislatie authority& #) Is there an inconsistencywith a prior leg rule

#4) Interpretation'Syncor #C Cir 1**4)#a) 0A will regulate !2 scans now'substantie bc changing the rule, rather than

interpreting so"ething.#) Food Cause'2enn Fas #C Cir 1**-)

#a) 0or an agency to ino:e the good cause exception in "a:ing an interi" rule, they "ust proide factual support of the har" in waiting.

d) Infor"al Ad8udicationi) Intro

#1) language of A!A for ad8udication parallels that for rule"a:ing, so the A!A says there should be a presu"ption of infor"al rule"a:ing, but the Ct in 0/C creates a presu"ption offor"ality.

#-) Cts "ust gie deference to infor"al ad8 as it does to for"al ad8 and infor"al rule"a:ingii) Berton !ar: #US @41)'"ust gie reasons, een if not for"al findings. 0indings are

incentiiEed though #safe harbor)#1) SIF6 "ust hae reasons for deter"ination for Ct to engage in substantial reiew

iii) !ension enefit Fuarantee Corp . (2 #US 1**+)'Fot Corp, !FC, decides to "a:e corp,(2, responsible again for its pension obligations thru infor"al ad8'Ct upholds. Applies 2Man:ee to infor"al ad8udication.

#1) Ar:ansas%est'so"eti"es there is notice reJ for for"al ad8, but not infor"al ad8i) Chenery I #US 1*>)'no post hoc rationaliEations

e) 2he /ule"a:ing%Ad8udication istinctioni) Chenery II #US 1*5)'agency "ay proceed thru ad8udication #does not need to "a:e a rule first)ii) !olicy in faor of allowing ad8udication rather than rule"a:ings6

#1) "ay use ad8 as a te"porary expedient until the rule is "ade#-) so"e proble"s are so specialiEed and aried they can only be resoled thu ad8

iii) !rocedural istinction#1) /ule"a:ing A!A reJuires )

#a) agrees that prospectiity is inadeJuate#b) (oo: pri"arily at whether you are na"ing the affected party directly #generality .

specificity distinction)


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#i) ut this is not easy, i.e. Cong "a:es tax exe"ptions for specific constituents) (ondoner /eisited

#1) hearing reJuire"ent for ! in special assess"ent#-) SIF6 ppls rights are "ore affected in ad8 so that is why you need a hearing

i) i"etallic #US 1*1$)'#property tax increase) no hearing reJuired for rule"a:ing. Standard forwhen it@s an ad8udication, and thus reJuires a hearing6 #1) s"all V of ppl affected #"ost

i"portant)& #-) exceptionally affected& #>) affected on indiidual basis #i.e. for different reasons)ii) A!A 3 $$1

#1) distinguish by prospectie application of action#a) eeryone criticiEed'exec order says loo: also at generality

iii) Mesler #1) Ct decides that deter"ination that eiction procedures be reduced for cri"inal public%housing

tenants is a rule"a:ing, so should hae had


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#>) Steens, Concurs'would assu"e that YY appropriated to these progra"s included YY inda"ages for estoppel clai"s #ct "ust not create progra"s, doesn@t relate to indiid clai")&Larshall@s issent'eJuitable doctrine can be narrowly tailored

iii) !olicy6 would open flood gates of litigation, would lead to less adice rather than better adiced) Infor"ation AcJuisition

i) 02C . A" 2obacco

#1) 02C clai"ed unli"ited right to docs, Ct re8ects saying that it was 7loath to beliee that Congintended to authoriEe one of its sub agencies to sweep all our traditions into the fire.;

ii) B:laho"a !ress !ub. . Kalling #US 1*$)#1) 3 clearly authoriEes actie #got co"es and ta:es records) and constructie search #subpoena

duces tecu").#-) Corporations don@t hae sa"e protection against self%incri"ination as real persons#>) Constructie search is o:ay, but not actual, and scope of subpoena "ust be reasonable

e) Infor"ation isclosurei) 0reedo" of Infor"ation Act #0BIA)

#1) got "ust disclose unless there is a public interest in secrecy. A!A interprets this to "eanyou disclose all final orders unless there is good cause not to.

#-) 0BIA has > reJs6 #1) publication #in 0ed /eg)& #-) public inspection #of final orders, including

dissents and concur)& and #>) production #upon reJuest, "ay hae fee)#>) 0BIA litigation circles around whether 1 of the exceptions is aailable6 national defense&

internal personnel co""unication #interagency co""unication)& trade secrets& organic 3created exception& "edicalpriacy& so"e law enforce"ent& financial institution regulation,etc.#a) interagency "e"os are exe"pt if they could not be "ade aailable in litigation #i.e.

would be protected by priilege)ii)


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Administrative Law Cases

Air 2ransport . ept of 2ransport #C Cir 1**+)' id 0AA hae to hae


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heard ru"blings and conducted a poll, union lost and filed with


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loc: . Co""unity ways to defeat presu"ption of 8udicial reiew6 #1) specificlanguage& #-) conte"poraneous 8udicial construction followed by congressional acJuiescence& #>)inferences of intent drawn fro" the statutory sche"e as a whole. 2his case fits into option >.

owsher . Synar #US 1*5)owen . Ftown U Gospital #US 1*)'Clear State"ent rule, by which Cts read any a"biguity in a

statuteregulation against its retroactie application, supersedes Cheron deference. Agency cappedrei"bursable costs to hospitals proiding Ledicare serices, but that reg was struc: down bc was notissued with


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prosecutorial authority. Ct App says this is win the


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supposedly supple"ental, but they are both additional infor"ation to support an original conclusion.ut the study for"s the basic assu"ptions behind the rule"a:ing. Is this ca:e or the icing on the ca:eH

Chenery I #SC .) #US 1*>)'SC re8ected a reorganiEation plan. Statute says that reorganiEation "ust be7fair and eJuitable; and 7not detri"ental to the interest of inestors.; SC 8ustifies its re8ection wlegal reasoning #iolated uty of 0air ealing and !rinciples of Juity). Ct stri:es it down #since theyare legal 8ustifications and this is pre%Cheron), and SC supple"ents its argu"ents with good policy.

Ct does not allow post hoc rationaliEations'it stands on the grounds it was decided upon or not at all./e"and. 2here was so"e dicta and confusion as to whether the agency had to "a:e a rule"a:ing before it could bind a party in an ad8udication.

Chenery I #SC .) #US 1*5)'Bn re"and, SC 8ustifies its re8ection of this reorganiEation on policygrounds. Ct affir"s this deter"ination. It is o:ay for agency to proceed by ad8udication rather thanrule"a:ing.


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applies the will of Cong that not eery person suffering in8ury hae standing. 7A releant 3; got a broad interp, under the policy that standing be easily achieed. Khite says purpose of law was to preent natl ban:s fro" getting "onopolies on all financial serices thru expanded serice offering andunli"ited branchinggrants standing. Stevens, Concur 6 Agree it@s within the Eone of interests, but

doesn@t approe of expanding discussion of the Eone of interest test.Connecticut (ight and !ower Co . d party too: the first action against hi"'police don@t arrest pplwo cause'wasn@t arbitrary. /e"and to see if delay in hearing was undue to such an extent that itiolated !.

ole . US Steelwor:ers #US 1**+)'o( reJuires "anufacturers to put warnings on haEardous "aterial.

BL disapproes of so"e exe"ptions for being too narrow under the !aperwor: reduction Act, whichauthoriEes the" to li"it 7infor"ation reJuests;. Ct loo:s to see whether 3 is clear6 #1) start with text of statute #Gere, info goes to wor:ers, rather than to got)& #-) Canons of Construction'0< * of Cheronallows this #Gere loo: at surrounding words to discern "eaning'that it@s for record:eeping)& #>) leg purpose and #) leg history #neither really releant). SIF6 loo: at these things to deter"ine if 3 isclear. White, Dissent 6 7clear; should not ta:e 1+ pgs to explain.

agle%!icher Industries . !A #C Cir)'8ust because an earlier clai" would hae been unripe will not curea now oerripe clai". If it is 7indisputably not ripe; then you can wait, but nor"ally Ct will reJuirethat you file, hae it :ic:ed out, then file later.


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d"ond . US #US 1**4)'Coast Fuard udges for Ct of Cri"inal Appeals #not Art. III) are inferior officers.2est is whether they are subordinate'do they hae a relationship with a superior #other than the !res)and how "uch control does that superior hae oer youH Gere, AF and the Ct App of Ar"ed 0orcesare superior #- separate bodies can co"bine to function as a superior). #1) Conicted Q appeals toCAA0, where So/ is 7so"e co"petent eidence;een where decisions co""and so"e deference

they can still be inferior. #-) AF can re"oe 8udge wo cause.

thyl Corp . !A #C Cir 1*4*)'!A in charge of deciding how "uch lead is allowed in gas. La8orityupheld agency regulation under 4+5#-)#a). Wilkey Dissent 6 extensie analysis of the eidenceconsidered by eidence. Bazelon, Concur 6 strict Ct superision of agency procedure, shouldn@t basedecision on facts #don@t abdicate responsibility, but ery "ini"al fact%analysis). 2echnical stuff is notfor 8udges #so we could reiew 0CC stuff "ore carefully) Leventhal, Concur 6 "oderately deferential#less than reiew of decisions, but can@t substitute Ct@s scientific 8udg"ent) but careful 8udicial scrutinyof agency decisions=loo:ing at facts a bit. )'X%taxpayer sues to en8oin Cong fro" spending "oney on Social Kelfare(egislation, she has no standing to sue. #1) this is a generaliEed grieance to all taxpayers& #-) eachtaxpayers grieance is "inute and uncertain& #>) policy'fear of flood of suits& #) ConstSep of !owers 'public concern is not for 8udicial resolution& #$) unprecedented.


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he was not interpreting it pursuant to Cong authority%%3 gies hi" power to "a:e rules for the controlof drugs, but not to define the standards of "edical practice. 7Control;= assigning a drug to a schedule.2he Interpretie rule did not concern scheduling and was not issued after reJuired procedures regardingscheduling, so not under AF@s 7control; authority. AF also clai"ed to be able to deny registration ifissuance is against 7public policy; but he did not consider the $ factors that the 3 reJuires hi" toconsider in denying the registration here, A yrs'this is proble"atic fordiagnosis, and for research that "ight proide "ore facts on low leel exposure.


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L roadcasting Co . 0CC #C Cir 1**)'0CC "ade regulation that if there was any error in yourapplication, it was denied without an opportunity to correct. L argues it passed this regulation wo proper


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need a petition by a "a8ority of the ho"eowners to the d of !ublic Kor:s, which trans"its it to theCity Counsel. Gere the assess"ent was i"proper because there was no petition. 2here was thus nonotice to ho"eowners. Ct expands notice to include the issue of a hearing #wasn@t raised below) andoerturns the assess"ent on the grounds that X didn@t hae an oral hearing as reJuired by ue !rocessin the $th A"end"ent. 2his is not the case today, where sub"issions "ay often be written.

(ouisiana 0ederal (and an: Ass@n . 0ar" Credit Ad"in #C Cir -+++)'agency wants to re"oe

geographical li"its on lending to far"s. 2here are two types of loans'direct and participation. 2heob8ections #that agency didn@t hae statutory authority, that geographical restrictions were part ofstatutory sche"e, that this would hurt far"ers) were in the context of the direct loans. 2he agencychanged the sche"e only for participation loans, not direct. Ct reersed bc didn@t respond toco""ents. en though they were for direct loans, they apply eJually to participation loans. SIF6can@t escape co""ent reJuire"ent through a technicality. ffect6 agencies respond to eerything'thiscould be an oerexpansion of bureaucracy or good goernance.

(u8an . efenders of Kildlife #US 1**-)'3 says agencies "ust plan their pro8ects so as not to destroyani"al habitat'"ust consult with BI and get Sec of Interior to do ndangered Speciesassess"ent 8oint regulation #"ultiple agencies pro"ulgate it). BC and BI interpret statute to

apply only do"estically, een though 3 does not hae that li"itation. Ct says6 Standing is a ConstreJuire"ent& Cong cannot grant it where it does not exist. >%part inJuiry for Const standing6 #1)

inasion of a legally protected interest, that is also #a) concrete, #b) particulariEed, and #c) actual ori""inent& #-) causal connection #in8ury caused by Q)& A) redressability #"ust be 7li:ely; that itcan be fixed by 8udicial re"edy. Xs fear Sri (an:an crocs will die, and they li:e to obsere the"'#1)no standing bc not i""inent=no in8ury in fact. Ct re8ects ecosyste" and ani"al nexus, also ocationalnexus, but doesn@t re8ect that a X with actual ocational interest in this "ight hae in8ury. Ct alsore8ects procedural in8ury'"ust hae so"ething at sta:e to suffer procedural in8ury. #-) no standing bcno redressable #- agencies inoled, so reersing one won@t fix anything). %ennedy, Concur 6 nexus"ight be enough in so"e other case. Kould allow Cong "ore leeway to define in8ury throughout the big interconnected world. Stevens, Concur 6 reerse on "erits #not standing)'1'in8ury6 X haestanding bc i""inence of in8ury is "easure starting at har" to eniron"ent, not to when youeentually fly to Sri (an:a and see no crocs'in8ury is hae less choices in this world, since they arehar"ed. -'redressability6 if Ct deter"ined whether BI regulations bound other agencies it would be

redressable. Blackmun, Dissent 6 xosyste" nexus is alid, and X should win. Bnly need to showgenuine issue of "aterial fact for standing.

Latthews . ldridge #US 1*45)' factor test6 #1) !riate Interest6 Xsinterest is high, but not as "uch need as w welfare'not necessarily poor& #-) /is: of erroneousdepriation6 eidence here is "ore ob8ectie #"edical reports), "ore co"patible w written sub"ission,less to gain by oral argu"ents& #>) Fot interests6 resources. Criticism6 presu"es only substantiehar", not procedural har" #ignores Tdignitary@ interests). Brennan, Dissent 6 a"ount of har" isspeculatie.

LcCarthy . Ladigan #US 1**-)'!risons hae a protocol an in"ate "ust follow before he can sue. X%in"ate sues #pre se) "edical staff for "onetary da"ages #31*>). Ct found that X did not need toexhaust his clai" for YY da"ages. Khen organic statute is silent on the issue of exhaustion, the court

"ust balance the interest of the indiidual in retaining pro"pt access to a federal 8udicial foru" againstcounterailing institutional interests faoring exhaustion. Interest in faor of exhaustion6 #1) agencyauthority #fix their "ista:es, sep of power) #-) 8udicial efficiency6 better record. (itigant@s interestagainst exhaustion6 #particulariEed to X) #1) undue pre8udice6 #a) unreasonable ti"etable, #b) irreparablehar", #c) defense to cri"inal liability #can challenge on "erits een if not raised below, e.g. draftdodgers)& #-) agency can@t grant effectie relief6 #a)institutional co"petence, #b) agency procedure isthe har", #c) no authority to grant relief sought& #>) agency bias. Application6 #1) Cong didn@t"eaningfully address exhaustion in this 3. #-) (itigant@s interests are sig6 #a) undue pre8udice bc


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unreasonable ti"etable #"any short deadlines) and #b) no effectie relief bc prisons don@t grant YYda"ages. #>) Agency@s interests aren@t particularly pressing.

LCI . A292 #US 1**)'RSubserient Statute 9 Cheron 3 -+>#a) reJuires co""unications co""oncarriers to file tariffs w 0CC #7filed rate doctrine;'"ust hae 8ust rates) and 3 -+>#b) authoriEes 0CCto "odify any reJuire"ent of 3 -+>. Issue is whether 0CC@s decision to "a:e tariff filing option for allnon%do"inant long%distance carriers #li:e LCI) is a alid exercise of its "odification authority.

Lodify is not unclear'it "eans less change than 7change; which "eans you can@t "a:e basic andfunda"ental changes in legislatie sche"e. ) "a:ing guidelines is labor intensie'it@s good to hae expert agency doing it. Intelligible!rinciple = Cong "ust say the general policy, the agency to apply it, and the boundaries of the

delegated authority. Scalia&s Dissent 6 2hese are 8ust broad standards that don@t guide. 2he powersdelegable to an agency "ust be ancillary to that branch@s power #i.e. Juasi%8udicial here should be in 8udicial branch), otherwise we are creating another branch, a Congress.

Lorrison . Blson #US 1*)'Indep Counsel appointed by Special iision #a Ct of law) if AF says there iscause. S. Ct finds the IC is an inferior officer, so his appoint"ent is proper. criteria to deter"ine!rincipal . Inferior officers6 #1) re"oability #here he@s re"oable by AF for good cause)& #-) scope of duties #here he has enforce"ent, but no policy, rule"a:ing or ad8udication duties)& #>) scope of 8dxn#li"ited to 1 sub8ect of inestigation)& #) tenure in absence of re"oal #te"porary'ends after 1inestigation). CAA26 for interbranch appoint"ents, appoint"ent can@t i"pair a branch@s


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constitutional functions and there cannot be an incongruity bt the power of the branch and theappoint"ent #here is o:ay). Scalia, Dissent 6 #1) IC is barely re"oable'proing 7for cause; is hard,and re"oal is not by the !res& #-) enforce"ent power is unhindered& #>) doesn@t "atter that the 8dxn isli"ited #the a"bassador of (uxe"bourg "ust still be appointed)& #) inestigations go on indefinitely.IC is not inferior to any officer in the executie branch.

Lotor ehicle Lanufacturers Ass@n . State 0ar" #US 1*>)'agency issues safety standards for cars

reJuires passie protection #1*4-)'airbags, auto"atic seatbelts and ignition interloc:. After haingreJuired these safety features, the agency rescinds the regulation reJuiring passie restraints. State0ar" challenges, and Ct re"ands bc agency didn@t 8ustify it@s decision sufficiently. 0or the rescissionof a rule6 agency cannot 8ust undo, "ust "eet A9C reiew. Ct says a decision is A9C if agency6 #a)relies on factors that congress didn@t intend it to consider #although Ct reJuires the" to consideradditional factors'ones that aren@t foreclosed by Congress), #b) fails to consider an i"portant aspect of the proble", or #c) offers an explanation that runs counter to the eidence or is so i"plausible that itcannot be ascribed to a difference of opinion. Gere, Ct didn@t consider 8ust haing airbags, rather thatrescinding the reJ for all passie restraints, and didn@t consider "a:ing auto%seatbelts non%detachable.Also, agency proffered post hoc 8ustifications, but Ct won@t consider the" if not considered duringdecision"a:ing process& and Ct won@t supply the reasoning for an agency@s action. Agency wanted the7legiti"ate purpose; #"ini"al rationality) standard that is afforded to the legislature, but says that

rather, there "ust be a rational connection between the facts found and the policy choice "ade #can@t 8ust cite 7substantial uncertainty;'this is SIF bc it gies cts power to scrutiniEe and reJuire 8ustification een where there is scientific uncertainty. 'ehn(uist, partial Dissent 6 Kould defer to theagency'the change in policy is due to the new president, and this is o:ay because it@s de"ocracy inaction'the ppl hated the safety features and that@s why they elected /eagan.

)'


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resole #they said it was). Ct reiews this deter"ination under a standard si"ilar to subst e, since islegal fact . Ct pretends this is a of fact #li:e in Gearst) bc scope of statute and legal status is a of lawP

Berton !ar: #CitiEens to !resere) . olpe #US 1*41)%%3 says no highway thru par:s unless there is nofeasible and prudent alternatie and there is all possible planning to "ini"iEe the har" to the par:. Secof 2ransport authoriEed highway to be built thru par:, citing this 3 and clai"ing that his action was

co""itted the discretion by law, because he has power to use his funds. 2he Ct stri:es down hisaction. 2here will be 8udicial reiew unless 7there is no law to apply;'y narrow exception to thedefault rule of 8.r. Gere, there is law, bc 3 prohibits highways thru par:s except under li"itedexceptions. I


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that exception. !rinciple of de "ini"is6 notwithstanding the Tplain "eaning@ of a 3, a ct "ust loo: beyond the words to the purpose of the act where its literal ter"s lead to absurd or futile results. Gere,the ris: of cancer was 11*bn and 1*bn at worst. Agency clai"s inherent authority under de "ini"isdoctrine to list dyes if the ris: was less than 11"ill. Ct agrees the ris: is negligible. ut cannot readexception into 3 bc #1) text is rigid& #-) context #ad"in discretion in ad"itting othercarcinogens)rigid& #>) leg historyridig interp& #) Cong had policy for foreclosing de "ini"is

exception./apaport . US ept of 2reasury #C Cir 1**$)'Bffice of 2hrift regulates how "uch YY these thrifts hae

on hand. B2S decides that the "a8ority SG "ust "ay Y bc he was 7un8ustly enriched.; / clai"sinsufficient e to show un8ust enrich"ent, Ct agrees. B2S ad"inisters this 3 with >O other agencies' we don@t defer if there is shared ad"inistration. Btherwise the a"biguities would be resoledinconsistently. So de noo reiew.

/eno . Catholic Social Serices #US 1**>)'I


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7thoroughness, alidity of reasoning, consistencyN; of ad"inistrators decision. /e"anded to . Ctsince now, recoery is not legally precluded, "ust do factual findings of whether this is wor: ti"e,considering Ad"in@s ulletin.

Spear #ennet .) #US 1**4)'Under !A, ureau of 0ish and Kildlife "ust issue a biological opinion on anirrigation pro8ect on its effect on endangered fishes before it@s constructed. Xs #haing econo"icinterests in :eeping water leels'don@t want irrigation pro8ect) file citiEens suit against BI for giing

the go ahead. Fot argues that it is only speculatie that water leels will drop so shouldn@t be in8ury infact and that bc another agency has to act to co"plete the pro8ect there is no causation. Ct disagrees' there is S2A)'!A uses state #!/) draft certification to set leels of pollution allowed in per"its. Allow 7"ixing Eone analysis; where they loo: at certain area of water tofind concentration of pollution, rather than 8ust the waste pouring into the water. 2here is also 7no% bac:sliding; rule. !/ agency@s draft didn@t include a "ixing Eone analysis'"any delays, !Aextending deadlines etc, then when !/ agency issues final certification #wo "ixing Eone analysis), the!A adopted the certification Juic:ly. !/ agency wants to reconsider to include "ixing analysis, butagency denies. Ct re"ands to "a:e agency explain its denial of reexa"ination. SIF6 Agency nowreJuired to explain why it didn@t "a:e an exception, and it@s not enough to say 7this is against protocol.; Ct says it 8ust "a:es no sense for the" not to hae allowed !/ to reexa"ine and would

hae led to the right decision. #Kere they "ouse trapping the !/ agency, or trying to finally be donewith certification).

Sweet Go"e #abbitt .) #US 1**$)'ndangered Species Act "a:es it illegal to 72a:e; an endangeredspecies, and the statute defines 7ta:e; as to 7har" a species or its habitat, harass, wound :illN.; oeshar" include degradation of habitat, as agency beliees. La8ority defers to agency definition bc har"is an a"biguous ter". #1) Statutory ter"6 La8ority#Steens)'ordinary "eaning of har" includesindirect har"& issent#Scalia)'"any "eanings #h""..) and Ct should pic: the 7best; "eaning, whichreJuires positie action& #-) Cannons of Construction6 Steens'surplussage #aoid giing wordsrepetitie "eanings)unless har" includes o"issions it adds nothing to lang& Scalia'noscitur a sociis

#loo: at surrounding words)would be only word wo positie action reJuire"ent& #>) !urpose of Act6

Steens'this furthers the end of the act #saing species)& Scalia'legislators do not hae a co""onintent& #) SubseJuent Congressional Action6 there is another act allowing !A to buy priate lands for

7incidental ta:ings.; Steens6 shows that there "ay be so"e incidental ta:ings through the leg& Scalia6not releant to this statute& #$) (eg Gist6 Steens'loo:s at floor speeches for broadest possible interp&Scalia'hates leg hist #although we are bringing in eerything elseP) but tries to proe that it is unclear.Scalia&s Dissent 6 2a:e is a C( ter" of art, C( is pris" for interpreting 3& also, forfeiture section proides for forfeiture of guns, but not hoes and bulldoEers ppl thin:ing of :illing not deelop"ent

that destroys habitats. )&Connor Concur 6 there "ight still be proble"s w statute, but as applied it iso:ay #this is not a facial challenge)& also, Ct interprets an a"biguous regulation to be consistent with 3such that it will get Cheron deference.


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Syncor Intl Corp . Shalala #C Cir 1**4)'rugs for !2 scans were not regulated under 0CA #they haeshort half%lies), but then 0A issues an interp rule saying that the phar"odrugs will be regulated. Ctre"ands bc this is a substantie rule change, not an interpretation, and so they needed to do ++ cases, it was using it as the rule. !roble"6 "ight incentiiEe deiating fro"interpretie rules, and "ight lead to aguer rules'this does not lead to certainty.

er"ont Man:ee


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an ad8udication. 2hen +days would not apply, and . !owell in concurrence doubted the constitutionality of preclusion ofregulations that cause cri"inal liability after a short So(. Laybe Ma:us is distinct bc win the war power of Cong.

Mesler 2errace Co""unity Council . Cisneros #*th Cir 1**)'2he eter"ination that the public housingtenants "ay be eicted for cri"inal actiity wo a hearing #as would be usually reJuired) is a rule, not

an ad8udication, and so should hae had


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was una"biguously established to be different, then you could :eep it, but otherwise, adopt A!A. 2heCt@s expertise can be used in scrutiniEing the record for substantial eidence.

Administrative Law - Abramowicz - Fall 2008_3

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Transcript of Administrative Law - Abramowicz - Fall 2008_3