ADMINISTRATION: GOALS, POWERS. AND CONSTITUTIONALITY

Deshaney

1. Just because an agency is created doesn’t mean if they don’t act they have violated ones right; agency creation doesn’t entitle you to action

INCORPORATING AGENCIES INTO THE CONSTITUTIONAL STRUCTURE OF GOVERNMENT 1. Overarching Policy on Agency’s Power

a. Agency power is essential to act promptly and expertly to develop policy, or to conduct operational programs.

b. Checks and balances generally in our government structure, ensure basic choices about legal authority, personnel and money are put partly in the hands of others, an administrative agency can’t go too far astray

i. Separating powers is beneficial

1) Checks and balances

2) Prevents dictatorship; if give it all away then “can’t” give it back

c. In assessing what courts can do in admin law, don’t forget this range of control. For many problems, nonjudicial controls may be adequate solutions, lessening the need for intrusive or otherwise inappropriate judicial remedies

2. When Agencies can act as “Courts” (p. 42)

a. Essential Attributes of Judicial Power

i. Judicial review is sharing power

ii. Must look @ Scope of review

iii. Lax review could raise a flag

iv. Particularized area of law

b. Origins/Importance of the right (Public Rights Doctrine)

i. State law claim importance b/c Congress didn’t “create” right

ii. If congress created right doesn’t need to be determined by crts

c. Congress Intent/Purpose in delegating

i. Efficient, cost effective, timeliness

ii. Protect liberty and prohibit tyranny

**None of the factors are Dispositive3. Agencies as “legislators”- “Intelligible Principle” Principle (p. 60)

a. Non-delegation Doctrine

i. Prohibits excessive delegation of discretionary powers by congress to FED agencies

ii. Must legislate an intelligible principle to guide agency in its discretion4. The End of the “Legislative Veto” (p. 76)

a. A provision in a statute by resolution to disallow a particular exercise of agency power

b. House can act alone only in exceptions

i. Legislative Veto of RULES more acceptable

c. House must act in conformity w/ express constitutional procedures for enacting legislation

i. Certain checks contained in Const. Art I; e/g/ bicameral requirement, presentment to the President, and Prez veto

d. disliked b/c wanting Congress resuming central role in PM

e. liked b/c want legislative veto as avenue for undue influence by congressional staff and special interest

f. Leg. still can control through budgeting and oversight5. Executive Control – Appointment and Removal (p.90)

a. Congress and Prez often competing over control of agency power

b. Who is being appointed or removed: considerations:

i. Officers of the US

1) Inferior – no tenure, limited jx., subject to removal by higher Executive Branch offiical

2) Principle – opposite of above; violation of appointments clause

ii. Employee

1) Lesser functionaries subordinate to officers of the US

iii. Officers of Congress

1) Only have scope of what congress can do

iv. Good Cause Clausec. Removal

i. Congress can limit prez’s removal power as long as doesn’t “impede the prez’s ability to perform his constitutional duty”

1) To take care that the laws be faithfully executed

ii. Issue w/ IC investigating prez’s actions

d. Trend towards Pres. Centralizing RM process6. Policy for Legislative Branch Making Agencies

a. Leg. should have broad authority to control the workings of government to ensure its efficiency, its honesty and its conformity to the policy preferences of voters. This power is seen in Congress’s ability to draft the statutes which are the agency’s sole source of authority, in the power to control agency budgets and in the ever-present power of formal and informal oversight

AGENCY DECISION MAKING – MATCHING THE PROCESS TO THE TASK

* What decisions does an agency make * what procedures does an agency follow when making decisions * rights of the public the participate in and influence agency decisions *

IDENTIFYING THE FUNDAMENTAL PROCESSES 1. Rulemaking-Adjudication Distinction (p.134)

a. Adjudication (Londoner) – due process of law required that P have the right to support his allegations by argument; small number of persons who were exceptionally affected, in each case upon individual grounds; norm application

b. Rulemaking (Bi-Metallic) – when rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voide in its adoption; norm creation

i. Retroactive Rulemaking (Brown) – okay if congress expressly authorizes retroactive RM

2. In Operation (p. 142)

a. Adjudicatory Excelsior Rule – order NOT binding; precedent only

b. Legislative Rule – binding b/c effects general applicable population

c. Harmless Error Rule (p 146)

i. If there is discretion that was needed but was not followed by the procedure cannot apply the H.E.R.

CHOOSING BETWEEN RM AND ADJUDICATION 1. Policy Considerations (p. 150)

a. Favoring Rulemaking

i. Usually preferred in part b/c of the efficiency implicit in its generality, the fairness arising from its wider opportunities for participation by people affected and by is prospectively, the accountability obtained by its openness and the technical accuracy which can result from its inclusiveness and deliberateness

ii. RM okay in adjudicatory process b/c problems arise in a case which admin agency couldn’t rzbly 4c, and must be solved despite absence of relevant general rule (p.154, SEC v Chenery)

iii. Retroactive application okay in this case b/c balancing test of mischief is outweighed by dangers inherent in statutory standpoint

2. Range of Agency Discretion to choose btwn the two (p. 158)

a. Whether to choose RM or adjudication is in complete discretion of agency

i. Past actions of agencies doesn’t determine the future correct way of handling procedures

ii. Discretion in agency to handle situation best see fit to product the relevant information necessary to mature and fair consideration of the issues

b. Judical crts challenge agency decisions to proceed by adjudication: functional , fairness, inconsistency

c. Storer Doctrine – is statue requires hearing agency can decide a threshold measure those who are subject to that hearing to protect public interest

THE RANGE OF PROCEDURAL FORMS

1. Diagram of RM and Adju – Formal and Informal (p. 180-182)

RULEMAKING – PROCESS FOR MAKING POLICY

Legislative Rules – issued through a quasi-legislative process and have an effect comparable to the effect of legislation; change what operative law is

Publication/Non-legislative Rules – common characteristic in they have not been issued through the legislative RM process; no process and very cheap

LEGISLATIVE RULES - DETERMINING THE EXISTENCE AND SCOPE OF THE AUTHORITY 1. FDA v. Brown

a. Must show that regulation is w/in “rzbly contemplation of grant of authority”

i. Congress directly prevented authority to FDA, kept power of scheme w/in own hands

b. Must establish that a general statutory grant of RM authority is related to the substantive issues a regulation would address

c. Dissent: read the statute expansively in light of the statute’s purpose

D. Chevron-deference stopped at stage one b/c congress directly spoke to issues to prevent FDA power to control tabacco

THE LEGISLATIVE RM PROCESS

1. Conformity w/ terms, policies and purposes of Act, discretion in implementation w/in agency

a. Must show that regulation is w/in “rzbly contemplation of the grant of authority” and that related to substantive issues a regulation would address

Rulemaking IssuesLegislative R/M (Brown, Williamson)

How differ from non-legis? Binding v non-bindingPower – Existence? Scope

R/M Process – Consider:Formal? (FECR: hostility to formal RM)Organic Statute?N-&-C under APA – what does this requireExceptions to N-&-C –

Legislative rules – Procedural, Good CauseNon-legislative – Interpretation Policy

Integrity in RMEx Parte Contacts Considerations

Formal Proceedings (557(d))N-&-C (553) No LimitingAgency Statutes; RulesLingering HBO issue (has more been adopted through organic statutes rules on Ex Parte contacts & Due Process is required w/ a private right that you would need to limit ex parte contacts

Bias

2. Enabling Act – procedures required by statute; congress can always trump the general, default procedures established by the APA

3. Retroactive Legislative Rules – APA says most are intended to govern future behaviors BUT – can change the effects of past behavior; congress directly spoken

4. Formal (not favored) p. 212

a. Trigger Pulling Language (US v FL East Coast RR )

i. “on substantial evidence of record of such hearing” APA § 553 (c)

ii. Unless precise language APA formal hearing doesn’t have to apply

1) Genuine Issue of Material Fact; More wordage w/out exact trigger language

b. Policy – more expensive, advantage to maximize opportunity to participate by those affected

5. Informal N&C Preferred– more than APA min? (§553) (p.224)

a. Publish Notice, opportunity for comment, general statement of basis and purpose, published in Fed. Reg.

b. Crt cannot add more process if agencies haven’t chosen to grant them

i. UNLESS - Agency styles it as RM, but when small number affected then constitutional Due Process required

c. Policy – may be considerably quicker and cheaper; reduces to some degree the opportunities to participate

6. Hybrid – results when a statue other than the APA is used to alter the APA requirements – usually to require more formality than the APA

a. May reduce flexibility, presumably in aid of other values such as fairness

IMPLEMENTING NOTICE-AND-COMMENT RM 1. Initiating RM Process (p. 242)

a. General Statement Basis Purpose: What to disclose and adequacy of (Nova Scotia gloss on APA)

i. Major issues of policy brought up during proceeding and why the agency reacted to them as it did

1) Policy – state and identify persuasive considerations; balancing test

ii. If Based on Facts need evidence in the record

iii. When pertinent research material readily available and agency no special expertise on precise parameters include the scientific data

iv. Make known so as to elicit comments that probe fundamentals

2. How to issue a Final Rule; when does the comment period stop (p.248)

a. Was added language rzbly anticipate from proposed rule; Logical outgrowth; Would this be the first time to comment on matter; Threshold of Materiality (Portland Cement)

EXCEPTIONS AND ALTERNATIVES TO N&C

1. Legally Binding - Exceptions to N&C (p. 262)

a. Rules of agency organization, procedure, or practice

i. Is it contestable w/in the agency (is there discretion still involved with the decision (Public Citizen p 265)

b. Good Cause/Emergency Situations (narrowly construed & reluctantly countenanced)

i. Notice and comment would be 1) Impracticable – due and timely execution of its function would be

impeded by the notice otherwise required2) Unnecessary3) Contrary to public interest

2. Not Legally Binding Agency Statements – exceptions to N&C (p.271)

a. Threshold Question is this an Interpretive rules or statements of policy – yes = exempt

b. Interpretive rule – advising public of construction of statutes and rules which it administers Substantive Rule – implement the statute; “force & effect of law”

c. General Statements of Policy – advising public prospectively f manner which agency proposes to exercise discretionary power

d. Legislative Rule Test: (yes to any of these makes it leg. triggering N&C; judicial review will require more procedure) p. 273

i. Need Rule to actually enforce

1) Intent of Congress – enforcement or confer benefits

ii. Published the rule in the Fed Reg

iii. Agency has explicitly invoked its general legislative authority

iv. Effectively amends a prior legislative rule

1) If consistent w/ prior rule then interpretive

ISSUES OF INTEGRITY IN THE RM PROCESS 1. Ex Parte Contacts and Bias (p. 286)

a. Very lax standard b/c of the openness of the entire process

b. Bias – only where there has been a clear and convincing showing that person has an unalterable closed mind on matters critical to the disposition of the proceeding

c. Content of pressure upon secretary is designed to force him to decide upon factors not made relevant by congress in the applicable statute

d. HBO (rare cases where RM is more like Londoner)

2. Ex Parte contacts don’t per se vitiate agency informal RM action, but only do so if it appears from the admin record under review that they may have materially influenced the action ultimately taken

*be sure to identify the nature of the decision (adjud. or RM), be aware of the types of procedural arguments that might be made about such a decision, and examine the specific statutory language to see whether there is an argument available when it may not otherwise be apparent

 

ADJUDICATION THE PROCESS FOR INDIVIDUAL DECISIONS

PROCEDURES REQUIRED BY STATUTE 1. Formal [v] Informal Procedures (p. 335)

a. Triggering language – “determined on the record after opportunity” * does every statutory reference to an agency “hearing” trigger Section 554, or must the work be use in context which suggests that a trial type, evidentiary hearing was intended? The opinions are not uniform.(Chemical Waste Management)

i. Directly from APA §554

b. Benefits of formal procedures (Seacoast p. 336)

i. Private rights protected

ii. Congress intent

iii. Are interested parties thoughts on the issue relevant

iv. Does issue need to be litigated

v. Unless otherwise specifies, an adjudicatory hearing subject to judicial review must be on the record

c. Matter of First Impression (City of W. Chi p. 340)

i. Absent triggering language need clear congress intent for formal adju.

ii. There are “on-the-record” proceedings w/out formal adjud.

d. Chevron Test

i. Has congress spoken directly to the issues (formal or informal)

1) Yes – must give effect to the unambiguously expressed intent

Adjudication – Finding ProcessAgency RulesOrganic StatuteAPA (Fed or State as case demands)

Formal Adjudication Triggered?Due Process clause – applied federal or state

Usually with informal adjudicationCovered Interest

Property – Old & New (Entitlement)1 Now property see esp. Roth, Sindermann2. But see, Town of Castle Rock – restraining order (carve out of entitlement approach)3. Bitter with the Sweet - See Loudermill

If entitlement includes property right then any procedural limitations don’t trump DP claim “Don’t have to accept the bitter with the sweet”

Liberty – Roth – magisterial (things in past which define Paul v Davis (defamation in and of its self not liberty); Wis v. Constatineaux (stigma (+))

2) Statute silent or ambiguous then is the agency’s answer based on a rzbl rationale

3) E.g. “hearing” has many different meaning; is it important to x-exam or more factual basis

e. Getting Around Formalized Hearing

i. Particular statutory hearing requirements don’t trigger APA §554(a)

ii. Seek flexibility w/in provisions of §§ 556 & 557

2. Formal - When §§ 556 & 557 apply (first must have the triggering language) (p.364)

a. Oral Testimony/Cross-Examination

i. “Necessary to ensure an adequate record for decision”

ii. As may be necessary for a full and fair adjud of the facts

iii. Looks similar to summary judgment

iv. APA doesn’t provide an absolute right to x-exam in “on-the-record” hearing only for a full and fair adjud of the facts

b. Discovery

i. Effectuate some other APA procedural right (proper judicial review) of sufficient record in the basis for agencies decision in adjud process

ii. Is it needed to support the charge or is it “relevant material”

1) Factual base [v] supported by evidence for judicial review

c. Notice

i. Obvious and Notorious

1) Can rebut if don’t think so

d. Independent Decision Maker

i. duty to explain decision

ii. Call attention to uncharged violations only if issue been fully litigated but can’t decide issue he thinks is there but both parties don’t

iii. Cannot assume himself an expert on the agency

iv. Initial decision – reasoned decision from the presiding official; decision of the agency

v. Recommended Decisions – needs to be adopted by agency head before official

3. Managing the Hearing – Evidence & S.O.P. (p. 403)

a. Burden of Proof

i. Preponderance of the evidence

b. Standard of Review of Agency

i. De Novo

ii. Still need to be able to exercise power that Congress gave them

c. Judicial Review

i. Arbitrary Standards or

ii. Organic statute has another standard the court needs to review by

1) E.g. Perales is “substantial evidence”

d. Admissibility

i. Rzbly prudent persons in the conduct of their affairs would rely on the evidence (neutral testifer, who’s submitting evidence)

ii. APA evidence standard – “the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence”

4. Informal

a. If section 554, in conjunction w/ the agency’s statute, does NOT require the adjudication be formal, the agency is free to proceed informally

b. No explicit provisions of the APA treat informal adjudication

c. Judicial Review might require that agency action not be arbitrary or capricious therefore requiring some kinds of basic process

i. E.g authorities relied on, give those affected some opportunity to test accuracy and relevance, explain how action furthers the statutory purpose

CONSTITUTIONAL SOURCES OF PROCEDURE IN ADJUDICATION

“Great Clause” – prevents government from affecting life, liberty, or property w/out adequate procedures

Goals defining procedure by imposing these kinds of deprivations

Improve the quality of the DM process including accuracy in factfinding and impartiality in lawapplying;

To achieve the legitimacy governmental action acquires in our system when citizens are given an appropriate opportunity to participate in governmental decisions which specially affect them

** Are judicial procedures the best (or the only) means for accomplishing the two objectives?**

GO OFF Flow Chart

1. Does Due Process Apply?

a. Londener/Bi-metallic

b. State Action (fairly attributable to the state?)

c. Protected Interest (life, liberty, property)2. If yes, How much process are you entitled to?

3. Protected Interest – Is it Triggered

PROPERTY (something we have been given, purchased, or otherwise own under the CL property)

*satisfying conditions gets you a resource, statute or implied reliance

1. Entitlement Doctrine (p. 436)LIBERTY

1. Stigma (+) test - Defamation plus tangible interest (p. 448)

HOW MUCH PROCESS TO BE GIVEN

1. Eldridge Calculus - Education, Prison, Public Employment (tenure, “for cause”)

A. Balancing test (p.475)

INTEGRITY 1. Bias in double rolls/comb function (p. 508)

2. Due Process & APA (§554(d))

a. compares to judicial process where duel rolls; Must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince,

b. what happens to agencies control of statutes; agency needs to be in control at top

i. BUT APA prohibits it in adjudications (investigatory-prosecutorial functions from adjudicative responsibilities)

3. How much Taint is too much (p. 519)

a. Could disinterested observer conclude that agency might have judged the facts b4 hearing

JUDICIAL REVIEW – REVIEWABILITY AND SCOPEThreshold – Does this person have authority to request judicial review, and if so how much? First look to Organic Statue

*Process is one in which the legislature draws and the court polices the boundaries of lawful agency action*

WHEN DO YOU HAVE ACCESS TO THE CRTS AT ALL? 1. Policy to Less Intensive Judicial Review

a. Permit quicker, cheaper decisionmaking, encourage internal agency policy-making, make agency decisions more accountable to the public, emphasizes expertise in decisionmaking

2. Policy to More Intensive Judicial Review

a. Insure decisions according to the Rule of Law, keep agencies’ conduct consistent w/ legislative intent, discourage overzealous agency, insure essential fairness in procedure

PRECLUSION OF REVIEW UNDER § 701 1. Statutory Preclusion (p. 577)

a. Statue expressly says no

i. BUT presumption of judicial review on certain agency actions unless statute expressly states otherwise

b. No Law to Apply Principle – used quite guardedly

i. Usually needs to directly speak to the matter

ii. Can still have Constitutional Claim

iii. If not specific statute that addresses issue then construe statutory language

iv. Purposes of statute where applicable law can apply; promulgate organic statute rule

2. “Committed to Agency Discretion by Law”: (p 591)

a. Had congress directly spoken to the issue

b. In someone’s complete discretion crt. “can’t” review

c. Constitutional Claims

I. Judicial review inside agency is up to them but cannot deny someone judicial review in federal courts on constitutional claims

APA § 706 – SCOPE OF REVIEW (LOOK AT FLOW CHART)

1. Issues to Consider on the Intensity of the Review

a. Legislative signal about the appropriate level of review intensity

b. Issue being reviewed seems more (or less) like a legal than factual question

i. Agency findings broad effects beyond specifics of this case may be reviewed more intensely; “questions of law” (see below)

c. Importance of expertise in resolving key issues

d. Crt’s confidence in its own ability to deal w/ the subject matter

e. Crt’s view about the agency’s skill or objectivity

f. Crt’s view of the appropriate judicial role

g. Whether agency was active in process allowing access to information about statute’s purpose

h. Overall quality of agency product

i. Throughness, fairness, and adequate participation

2. Question of law – e.g. “prudent” alternative route

3. Abuse of agency discretion

4. APA

a. Courts review various types of issues of law; not deference to agency determinations on such points

5. Figure out what law means and if agency’s decision coincides

a. Threshold - Could a rzbl trier of fact conclude there were no feasible alternatives (Overton)

i. Reasoned Decision Making – to make this finding the crt. must consider whether the decision was based on a consideration of the relevant factors & whether there has been a clear error of judgment

b. Apply facts to law/statute; Relevant factors

i. Congress’ grant of authority

ii. Decision w/in that frame

iii. Construed authority properly

iv. Rzbly believed his decision

6. Record for informal adjudication

a. No APA requirement BUT doesn’t crt encourage/define “records”

i. Administrative record – whatever b4 agency when made its decision

ii. Not sufficient then Secretary must testify

1) Reduced to explanation by agency then remand back to agency for further proceedings

iii. Post Hoc Rationalization – agency’s decision rise/fall on contemporaneous explanations

AGENCY (IN)ACTION REVIEWABILITY ( § 551(13))

1. Relief sought for inaction is §706(1) = compels AA (p. 570)

2. Limits of APA upon Judicial Review of Agency Inaction

a. Final agency action

i. Action – to be compelled OR action complained of

b. Decisions Implemented by agency:

i. Rule, order, license, sanction or relief

c. Failure to Act – failure to take an agency action

i. Same characteristic of discreteness shared by preceding items

d. Limited to a discrete action (confines failure to act)

i. Discrete action by agency; all actions w/in defined agency actions are discrete therefore F/T/A is a failure to take one of the aforementioned actions

e. Legally Required Action can be reviewed judicially (§706(1))

i. non-discretionary acts; failed to take action required to take Crt can not tell the agency what the action must be (can tell them to complete review w/in time frame)

1) General deficiencies in compliance lack the specificity requisite for AA

3. Policy – political issues; crt doesn’t want to be police officers; lacks focus and coercion

SCOPE OF REVIEW 1. Tirchotomy – Fact/Law/Policy

a. Overton Park where is it = fact; prudence = law; where to put road = policy (agency discretion)

b. Concept is very blurry negligence

1) In order to fine neg. need to define law therefore missed ?’s of law & fact2. Review Formulas

a. Agency Reasonable?

i. No review – statute only

ii. Arb./Capr. – residual test when no other test fits

iii. Sub. Evid – review findings of fact, and then only when those facts are developed on a formal record

b. Agency Right?

i. Sub. Evid. – review of findings of fact, and then only when those facts are developed on a formal record

ii. Clear Error – substituted for sub. evd. in some state statutes where more intensive review of facts was desired)

iii. De Novo – statute only3. Review of Agency Fact-finding (p. 605)

a. Check statute

i. e.g. what type of review

b. APA §557(b) (lax reviews, rationality reviews; issues arise w/ disagreement w/in agency)

i. Substantial evidence – formal RM/Adjud.

1) Rzbl mind can accept/support the conclusion

2) Doesn’t need to be the one crts want

ii. Arbitrariness – informal

1) Sub. Evd. Suggest it’s tougher

2) E.g. act specifically states Sub. Evd. review where arbitrariness is supposed to apply

iii. Commission Overturning ALJ’s decision when based on testimony

1) See what SOR the commission applied to review the case and see if logical conclusion

a) “on-the-record”

(i) evidence that explains reasoning

(ii) where’s the line btwn explicit in the record & inferences by agencies

2) Inferences

a) Testimonial (demeanor, truth doesn’t matter; infer someone neglect)

[v]

b) Derivative (undisputed facts, expertise, policy , evidentiary facts)

3) Credibility

a) ALJ based on testimony then give more deference; if board finds different then ALJ detracts from substantiality of the evidence supporting the board

4. Review of Agency’s Policymaking (p. 630)

a. §706(2)(a) – arbitrary ….

i. If unduing a statue then making “new rule” that has typical SOR

b. Arbitrariness Standard

i. The cope of review by the

ii. Needs to explain what it’s ding and is it rzbl

iii. Rationale connection btwn facts & choice

c. Factors that made Rescission Arbitrary

i. Agency conclusion when based on substantial uncertainty

1) If initially in agencies rule or history of a concern

ii. must explain the evidence that is available, and must offer a rational connection btwn the facts found and the choice made

iii. why did you rescind regulation

d. Relevant Factors

i. Policy, practicality, protect public, promote organic act

ii. Use statutes that show congress’s intent

REVIEW OF LAW 1. Statutory Interpretations (p. 667)

a. Leave if w/in the agency interpretation

i. Agency expertise and congressional delegation

ii. BUT what kinds of legal determinations by agencies warrant special deference; and how much

b. Who’s in charge of interpreting the law/legal meaning

c. First, determine if law, fact or both

i. Pure question of law – basically “de novo” w/ due respect to agencies

ii. Mixed question; ultimate fact; material fact

1) Rzblity review

2) Agency expertise, delegation

d. Look at statute to find the pressure point (e.g. “equivalent” fruit)

e. Second, S.O.R to approve agencies gloss

f. Skidmore-Deference How persuasive is agencies policy

i. Legislative history, through, consistency2. Chevron Test (p. 684)

a. Has congress spoken to the direct issue of equivalent fruit that is in the definition of Wine?

i. Statutory Language

ii. Legislative History

iii. Policy

iv. puts agency in a better place than Skidmore

b. If not, has agency given a non-arbitrary conclusion to why it interpreted the statute that way; agency’s answer based on a rzbl construction

i. Reasonable & permissible

ii. Leave it to experts who were given power by congress

3. Crts review agencies interpretations of law relatively aggressively (gloss on existing statute/regulation)

a. But crt’s reviewing agencies own policymaking choices deferentially

4. Chevron’s Reach (p 703)

a. Should I apply Chevron? (Mead)

i. Congress Delegation to generally make rules carrying the force of law

1) N&C RM, formalish Adjudication (safe-harbors)

a) Fairness, deliberation, participation, transparency

b) Not safe harbor but still applies

(i) Barnhart (p. 726)

1. interstitial (gap filling) expertise, importance, complexity, careful consideration, long period of time

ii. Agency Invoked that power

1) Procedure agency used show factors of applicable procedure

2) Not invoked when interpretative (totality-of-the-circumstances) or policy based

a) Long Island Care – carries special legal weight (Congress intend its delegation to the agency of “gap-filling” authority, used N&C, directly governs conduct of public

b. Why Chevron didn’t apply to Mead

i. Applies to one party and generally to everyone; piecemeal

c. Therefore Skidmore-deference applies

WHO GETS TO CHALLENGE THE AGENCY – STANDING 1. Constitutional Standing (p. 773)

a. AIII limits Congress’ grant of judicial power to “cases” or “controversies”

b. Is this case appropriately adjudicated through the judicial process? Min. Requirements

i. Injury-in-Fact

1) Concrete & particularized – general grievance – concrete harm if mass tort

2) Actual or imminent – increased risk qualifies (mostly environmental)

**Ass. Standing – member standing on own, organizational purpose, injunctive relief (Hunt test)

ii. Causation

iii. Redressability (the means of obtaining a remedy)

1) Speculative? Order make a difference b/c crt can’t tell agency what to do, just to follow correct procedures

c. Standing is a function of where you are in procedural process

d. Procedural Rights

i. Don’t need to meet all the normal standards for redessability & immediacy (no EIR p. 780)

2. Statutory and Prudential Standing – Extra-constitutional Standing (p.793)

a. Congress can get rid of all standing except constitutional

b. Citizen Standing Provision

i. Limits Congress’ power to confer rights; how could congress get around

1) Identify the injury it seeks to vindicate & relate the injury to the class of persons entitled to bring suit

2) Limit it that if up-set can’t just sue b/c don’t like

c. APA §702 gloss

i. “arguably w/in the zone of interests where would be denied only if P’s interests are so marginally related to or inconsistent w/ the purposes implicit in the statue cannot be rzbly assumed Congress intended this suit

d. Organic Statutory Language

TIMING THE CHALLENGE – FINALITY & RIPENESS (p806)

1. Finality and Ripeness (p 806)

a. Ripeness Doctrine

i. Fitness of Issues Factors

1) Purely legal Questions (e.g both moved for Summary Judgment)

ii. Hardship

1) Primary conduct, painful choice, is public safety in play

b. Final Agency Action

i. Consummation, legal consequences will flow from determined rights/obligations, unbinding rules and regulations

ii. Be weary on interpretive/policy statements