ADMINISTRATIVE LAW INTRODUCTION A. Agencies: Their origins, Forms an F!nc"ions 1. What is an agency? def'n not uniform or precise.

Agencies set out in Administrative Procedure Act- constitution for agencies. Agency = authority of government, not including congress, courts, territories, D gov't. !o definition of authority. "o, an agency is really any su#unit of government important enough to #e called an agency. an mean an actual unit of administration of government $%PA&, or the person or persons at head of organi'ational chart $ ommissioners, Administrator&, or people lo(er on organi'ational chart $staff attorney&. an mean any of these. ). Where do agencies come from? reated #y statute. *. "tructure of federal agencies+ single mem#er or multimem#er, method of removal of head of agency+ at (ill of president $e-ecutive agency& or term of years su#.ect to removal for misconduct or cause $independent agency&. /irst agencies (ere single-mem#er, then came Progressive %ra+ /irst multimem#er agency (as 0 1112, during ne( deal, distrust of presidential po(er added to multimem#er, then, 34s and 24s, singleheaded e-ecutive came #ac5 into vogue.---political accounta#ility. 6heory+ single mem#er and e-ecutive promote accounta#ility through political process$can #lame a single administrator for the agency's mista5es and then #lame the President for retaining the administrator&, multimem#er and independent promote disinterested professionalism $a group of tenured officials (ill presuma#ly #e less vulnera#le to special-interest and presidential influence& 7. Agency functions+ the distinctions #et(een rulema5ing and ad.udication. When (e spea5 of ad la(, (e spea5 of one su#set+ that governing procedure--the hoops agencies have to follo( regardless of their type. a. !on#inding Agency Action+ the ma.ority of agency action--that (ith no legal conse8uences.---political, policy oriented. #. 9ulema5ing and Ad.udication+ enormous legal conse8uences attach to this distinction. Actions (ith legal conse8uences must #e one or the other. c. 6(o main criteria $i& Prospective v. retrospective+ the more prospective, more rule-li5e $the more legislative-li5e&. 6he more #ac5(ards loo5ing, the more ad.udication-li5e $more .udicial&. $ii& :eneral v. particular+ the more general, more rule-li5e $the more legislative-li5e&.;ore particular, more ad.udicative $more .udicial& d. <pinions of the t(o leading scholars+ $i& Administrative =ustice and the "upremacy of >a( in the ?nited "tates, Dic5inson $1@)2&+ 6he essential difference #et(een legislation and ad.udication is not that one loo5s to the future and the other to the past -- there is nothing inherent in the .udicial process (hich re8uires that it should loo5 (holly #ac5(ard . . . What distinguishes legislation from ad.udication is that the former affects the rights of individuals in the a#stract and must #e applied in a further proceeding #efore the legal position of any particular
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individual (ill #e definitely touched #y it, (hile ad.udication operates concretely upon individuals in their individual capacity. AA:enerality is the most important factor. $ii& Procedure in Administrative 9ulema5ing, /uchs $1@*1& Agrees (ith Dic5inson that prospectiveB retro distinction less helpful than generalBspecific. !ot(ithstanding these difficulties, it is feasi#le to distinguish a general regulation from an order of specific application on the #asis of the manner in (hich the parties su#.ect to it are designated. 0f they are named, or if they are in effect identified #y their relation to a piece of property or transaction or institution (hich is specified, the order is one of specific application. 0f they are not named, #ut the order applies to a designated class of persons or situations, the order is a general regulation or a rule. De#ini"ion o# r!$e #rom A%A, C ?.". . D CC1$7&$from 1@73---virtually unamended #y legislature since&+ rule means the (hole or a part of an agency statement of general or particular applica#ility and future effect designed to implement, interpret, or prescri#e la( or policy or descri#ing the organi'ation, procedure, or practice re8uirements of an agency and includes the approval or prescription for he future of rates, (ages, corporate or financial structures or reorgani'ation thereof, prices facilities, appliances, services or allo(ances therefor or of valuations, costs, or accounting, or practices #earing on any or the foregoing. R!$ema&ing = agency process for formulating, amending, or repealing a rule. Or er is everything else (ith legal conse8uences A!D >0 %!"0!:. A '! ica"ion = agency process for the formulation of an order $that (hich is not rulema5ing&. $i& %ntire structure of act turns on distinction #et(een rulema5ing and ad.udication. Def'n says E<6F general A!D particular applica#ility, so as far as APA is concerned, the generalB specific de#ate is moot $if you ta5e it seriously&, so all (eight (ould have to rest on prospectiveBretro. $"o, contrary to (hat the scholars have said.& Eut, response of la(yers and .udges to Gor particularH is to pretend they don't e-ist. 0gnoredI $ii& Def'n of rule specifically 0! >?D%" rates, (ages, prices, etc. Eet(een the >icensing specific inclusion (Bin ad.ud and rates, (ages, etc. (ithin rulema5ing, most of the #orderline cases are cleared up. >ondoner v. ity and ounty of Denver $?.". 1@41& "till fre8uently cited, still officially good la(. $has come to stand for proposition it didn't actually say&. oncerns states $this is a federal admin la( class, e-cept a#out procedural due process---Cth and 17th pdp are same&. $i& What's going on+ "pecial assessment+ cross #et(een ta- and user fee, directed ta- for construction of pu#lic (or5, financed mostly #y those (ho (ill #enefit. %la#orate procedure for special assessments. ;a.ority of lando(ners to #e assessed must re8uest
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it. Eoard of Pu#lic Wor5s ta5es proposal to city council $primarily a legislative #ody, #ut also implements orders of state legislature, so some(hat e-ecutive.& Decision of city council is unrevie(a#le. Euild pu#lic (or5. 6hen Eoard apportions costs, city council approves. "tatutes provide for no participation #y lando(ners up to this point. Eefore actual ta- is imposed, statute re8uires hearing at end. 0n reality, lando(ners never as5ed for pro.ect. $ii& >ando(ners sued+ property assessed not #enefited, property #enefited not assessed, etc. $iii& ouncil, in secret meeting, said no one had o#.ected to apportionment $this is a lie& and approved the ta-. $iv& ?ntil assessment is made, effect of any lies doesn't matter under due process---no 'deprivation of property' has occurred. $v& ourt says, (hen ta-ing, legislature can do (hat it (ants. Eut (here it commits ta-ing po(er to lo(er #ody, must afford opportunity to #e heard. Doesn't have to #e full-#lo(n trial, #ut must #e more than opportunity to su#mit comments in (riting. Assessment (as therefore void. $a& Administrative #odies stand in the shoes of neither legislature nor court--some(here in #et(een. $vi& >egislatures do not have to provide any 5ind of notice or hearings, formal or informal, to satisfy due process. Fistorical fact. Fo(ever, if a state supreme court did the same thing, it (ould #e ma.or due process violation. DP re8uires a lot from courts. $vii& Folmes dissented. $viii& (as come "o s"an #or )ro)osi"ion "ha": When a minis"ra"i*e +o ies are in*o$*e , an ,ha" "he- o $oo&s $i&e a '! ica"ion, "he- on." s"e) #!$$- in"o shoes o# co!r", +!" )roce !ra$ !e )rocess re/!ires some"hing. 0 oesn." e1ac"$- sa- "his2. Ei-;etallic 0nvestment o. v. "tate Eoard of %8uali'ation of olorado $?.". 1@1C& Folmes (rote opinion. $i& Also a#out assessment, also involves procedures used. Procedures from state #ody (ere almost nil. "tate #ody changed property taassessment. 0sn't this .ust li5e >ondoner? $ii& ". t. says no. :overnments do this all the time at all levels. $iii& Where a rule of conduct applies to more than a fe( people it is impractica#le that every one should have a direct voice in its adoption. 0n >ondoner, a relatively small num#er of persons (as concerned, (ho (ere e-ceptionally affected $iv& (as come "o s"an #or: When a +o ies engage in r!$ema&ing 0$oo&s $i&e $egis$a"ion2, as #ar as )roce !ra$ ma""ers go, agenccan s"e) in"o shoes o# $egis$a"!re an "here is no cons"i"!"iona$ re/!iremen"s #or )rocess. 0 oesn." e1ac"$- sa- "his2 6hree points on rulema5ing and ad.udication+ $i& When (e say rulema5ing not #ound #y pdp to use particular procedures, not saying not re8uired to use procedures. "ource is .ust not from pdp. Admin la( dra(s on many sources, not .ust
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federal const. $ii& Fo( do (e 5no( (hat GsomethingH is re8uired for process of ad.udication+ (e'll cover later. $iii& 6his sho(s one (ay in (hich distinction #et(een rulema5ing and ad.udication is significant. Fo( tell difference? APA spells out for <!:9%"" (hat is rulema5ing versus ad.udication--solves some tough 8uestions. E?6 ongress can't tell courts ho( to decide cases under constitution---can't tell ans(er to >ondonerBEi;etallic. /or constitutional 8uestions, courts loo5 mostly to generalBspecific and prospectiveB retro. Can ha*e some"hing "ha" congress e#ine as a '! ica"ion !n er A%A 0e.g. $icensing2 ,hich co!$ +e r!$ema&ing )er cons"i"!"ion an *ice *ersa. l. >incoln v. Jigil $?.". 1@@*&+ Determining (hether an agency's statement is (hat the APA calls a GruleH can #e a difficult e-ercise. "upreme court didn't decide issue. m. Kesler 6errace ommunity ouncil v. isneros $@th ir. 1@@7& $i& 6here is no case eci e +- s!)reme co!r" she ing $igh" on r!$ema&ing *ers!s a '! ica"ion !n er A%A. /e( cases in lo(er federal courts. omes up (here something is framed in general terms #ut has impact on small num#er of people. $ii& F?D has rule that state can get its eviction procedures pre-cleared. "tate challenges agency decision as #eing procedurally inade8uate. "ays it is rulema5ing $#ecause APA re8uires certain procedures for rulema5ing&. $iii& Fo( determine rulema5ing? ourt says ad.udication involves disputes among specific individuals $actually, APA says #oth general and particular, court .ust ignores particular&. Also, ad.udications have immediate effect on specific individuals. $iv& ourt says this loo5s li5e rulema5ing. Actually, loo5s pretty damn ad.udicatory--.udging (hether a specific states procedures are sufficient. Also, APA specifically includes approval (ithin ad.udication. 6his is strong argument - could have carried the day. Theories o# Agenc- 3eha*ior44changes over time---has great influence over admin la(. 6hese varying conceptions lead to different ideas a#out relationships of agencies, courts and the la(. Admin la( is only C4 years old as separate discipline. /irst case#oo5 1@74. Eefore, not important enough, agencies not important, their la( not important. !e( Deal forced development of la( as coherent discipline. /ollo(ing commentators (ere generally reflective of the conventional (isdom of their time+ a. /ederalist !o. C1, =ames ;adison $1212& Agencies (ill #ehave #adly L they are dangerous so (e must come up (ith legal controls so they donMt a#use people. 6his vie( dominated until progressivism later in century. #. 6he Place of the 0ndependent ommission, %astman $1@)2& Agencies are nonpartisan. ertainly, once the mem#ers are selected their political affiliations cease to #e of the slightest conse8uence... 0nterprets #i-partisan composition as sho(ing they are a#ove politics, rather than #ecause people (ill follo( political vie(s. A:%! 0%" <>D>K !%?69A> A!D !<!PA960"A!--1@)1. 9eflects the Progressive movement-1124-1@*C. "pirited defense of activist state $today it
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(ould #e pretty mild&. hampion of administration $as distinguished from politics.& %astman's description corresponded to normative .udgment. ;uch of government is administration--8uestions that need to #e ans(ered #y #est and #rightest applying dispassionate technical schools. %astman analogi'es agencies to courts--rule of la(. Agencies have necessary relationship (ith la(yers. 6he Administrative Process, >andis $1@*1&+ ;ost important (or5. 9efined and e-panded %astman's idea. !e( Deal had #egun. >andis (as a principal architect of !e( Deal and administrative la(. 0deal+ >andis says agencies not only a#ove and #eyond politics, they are a#ove and #eyond la( itself. A#lest administrator is one (ho never read statute - solves pro#lems. >andis says there is little relationship #et(een agencies and la(yers. >a(yers get in (ay, agencies should try to ignore, .ust do .o#. Fo( >andis sees reality+ (e are #ringing in technical e-perts (hose #urning desire is to do the right thing. 6hin5s courts shouldn't interfere (ith e-pert technical decision ma5ing of the agencies. !<!PA960"A!, %NP%96, !<!->%:A>----so, structure la( to 5eep la(yers out of process. $Agencies are good, courts are #ad& 9egulating Eusiness #y 0ndependent ommission, Eernstein $1@CC& >0/% K >% 6F%<9K </ A:%! 0%" Ey this time, >andis vie( thought of as overoptimistic $even #y >andis&. Dou#ts formali'ed #y this #oo5. 6his articulated the dou#ts. 6he life cycle theory of agencies--process (here#y agencies are created (ith (ave of popular support and enthusiasm, #ut over time, don't seem to do (hat creators thought they (ould--(ind up acting on #ehalf of #usiness, not consumer. "taff gains familiarity (ith industry people. 6his vision gre( throughout fifties, early si-ties, refined into capture theory. 9eforming 9egulation, !oll $1@21& AP6?9% 6F%<9K 6a5es empirical o#servations of Eernstein and provides theoretical structure. Adds economic theory to #ehavior of political players. People (ill pursue (hat they regard to #e their interests most of the time---predicts #ehavior. "o, it is predicta#le that agencies (ill respond to interests of regulated. 6his theory (as e-tremely dominant during 1@34s to 1@21. People disagreed a#out response---regulation is doomed, so deregulate, versus must (atch agencies, #ut %J%9K<!% #elieved. i. :eorge "tigler---!o#el (inner from ? of Lderegulation, get rid of agencies. ii. 9alph !ader---opposite conclusion, #ut populari'ed theory L modify agencies. iii. What this theory says a#out courts and la(yers+ We must get rid of agencies or else have strict oversight on agencies. A:%! 0%" EAD, <?96" :<<D. Almost complete reversal of >andis vie(. ;odern admin la( mostly created *4s-74s+ reflect >andis, most still good la(. ;ost of rest 3C-2C, dominated #y capture theory, most still good la(. 6he Politics of 9egulation, Wilson $1@14& 9eflects partial re.ection of capture theory---!oll overstated the case. 0ndustries do not al(ays capture agencies. 6oday, virtually no adherents of >andis, lots of adherents to capture theory.

T(E CONSTITUTION AND T(E ADMINISTRATIVE STATE A. Se)ara"ion o# %o,ers+ 6his is the other ma.or force $aside from theories of agency #ehavior& in shaping the structure of agencies---(hat vie(s of separation of po(ers (ere at time of creation. 1. The Eigh"een"h Cen"!r- Vision: onstitution+ What is in print is not necessarily related to con la( today. What constitution doesn't tell us is as important as (hat it does tell us. i. 6ells us up front that gov't is set up of three types of institutions (ith different po(ers. Jesting clauses in Art. 1-*. "eparation <f Po(ers enumerates federal po(ers in each category $analogous to enumeration in federalism conte-t--Art. 0 D 1 po(ers, difference+ "eparation <f Po(ers enumeration is not specific and precise as in federalism, doesn't define (hat e-ec, leg, and .ud po(er are, .ust assumes (e 5no(- #oundaries are not clearly demarcated&. ii. Eul5 of constitution+ sets up structure of government $1& /ocus of many DMs of const+ (ho (ill inha#it congress and the presidency. 0ncredi#le amount of detail, thought long and hard a#out these 8uestions. $a& Art. 0, D ), clause 1-7+ selection of mem#er of house--in great procedural detail. $#& Art. 0., D *, clause 1-7+ selection of mem#ers of senate, has #een superseded #y 12th amendment--no( elected #y populace, not legislatures. $c& Art. 0, D 7+ %lections. $d& Art. 00, D 1, lause )-3+ selection of president. ;ethod for selecting Pres and JP has #een amended, to increase amount of procedural attention given #y constitution. $)& <ther focus+ selection of officers of government+ $a& Art. 0, D ), lause C+ Fouse selects its officers and shall have the sole po(er of impeachment. $#& Art. 0, D *, lause 7+ JP is president of "enate #ut doesn't vote unless e8ually divided. $c& Art. 0, D *, lause C+ "enate selects officers, president protemp. $d& Art. 00, D ), lause )+ Appointments clause. :enerally, pres (ith Gadvise and consentH of senate, #ut for inferior officers, senate may vest in Pres, courts of la( or heads of departments. $e& Art. 00, D ), lause *+ 9ecess appointments. $f& Art. 0, D 3, lause )+ 9estrictions on staffing+ no simultaneous appointments, can't #e appointed to office if (ere mem#er of congress (hen office created or pay raised. %-pected people to (ant to create lucrative offices and appoint themselves. :ets a(ay from Parliamentary model-separate legislative from e-ecutive.----paranoid fear of
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com#ination of po(ers. $g& President has residual appointment po(er #ut is specifically 5ept from appointing house and senate officers+ sho(s mindset--afraid of po(er-mad people--(rite technical detailed provisions to prevent. ;a5ing assumptions a#out #ehavior of those in office. $h& 6(o themes+ $ii& "tructure of onst. - chec5s and #alances. oncerned a#out concentrations of po(er, fear of human desires for po(ers $iii& >evel of detail -(hen (anted to address, did so in very specific, precise (ays. onst. focuses very specifically on ho( to get people into office. 6hird focus -- ho( to remove from office+ $a& Art. 0, D ), lause C+ !o need for separate removal clause for congress+ automatically leave at end of term, only stay if people reelect. Fouse has sole po(er of impeachment. $#& Art. 0, D *, lause 3+ "enate tries impeachments. ?nder oath or affirmation--very serious at time, at rest of time, not on oath or affirmation. hief .ustice presides in case of presidential impeachment---5eeps JP as senate president from presiding. 6(o-thirds ma.ority. $c& Art. 0, D *, lause 2+ =udgment in case of impeachment is not criminal--only removal from office and dis8ualified from future office. an also #e tried under criminal indictment. $d& Art. 00, D 7, lause 1+ Who is su#.ect to impeachment-Pres, JP, civil officers. /or (hat you can #e impeached+ treason, #ri#ery or other high crimes and misdemeanors. onst has specified grounds for impeachment. $e& Art. 00, D ), lause 1+ Pres has po(er to grant reprieves or pardons e-cept for impeachment. $f& Eottom line+ const ta5es impeachment very seriously--lots of detail. Eut says nothing else a#out ho( to get other people out of office $other than #y impeachment--a very drastic measure&. !o residual removal clause to counter appointments clause. 6his silence is one of most important in con la( history - much const and political heartache. <ther+ $a& Art. 0, D 3+ Privilege from arrest during attendance at session or going to or returning from session. ontemplates that pres and congress (ould #e at loggerheads, pres might use e-ec machinery to loc5 up enemies. an't sue mem#ers of congress for li#el for (hat they say in session. $#& Art. 0, D 2+ Fo( valid legislation is enacted. ;a.orities in house and senate and then presented to president, (ho has 8ualified veto. 6(o-thirds override of veto. $c& Art. 0, D 1+ .urisdictional limits of legislative po(er of
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federal govt.+ $i& Po(er to constitute tri#unals inferior to ". t. $ii& !ecessary and proper clause+ mentions structure of govt #elo( pres. $d& Art. 0, D @, lause 2+ !o money (ithdra(n from treasury e-cept #y congress--president not have po(er to dip into till. ;ust have valid congressional appropriation. ongress has po(er to control scope of govt. $e& Art. 00, D 1+ %-ec po(er vested in pres. !ot as Gherein grantedH as in Art. 0. 0mplies that e-ec po(er may #e larger than that (hich is granted? $f& Art. 00, D 1, clause 2+ President gets money (hich can't #e increased or decreased (hile in office. 6o prevent congress from re(arding or punishing president (hile in office. ould cut off everything else through appropriations clause, #ut not his pay. $g& Art. 00, D 1, clause 1+ president s(ears oath. $h& Art. 00, D ), clause 1+ Po(ers of president+ commander in chief--very important. Eig picture+ ;adison's vie( of government, reflected in const+ paranoia of people in po(er. Prevent concentrations of po(er. "(ords and shields+ $1& "(ords+ po(ers granted to actors to #eat up on others $)& "hields+ po(ers to fend off attac5s #y other #ranches+ $*& 9esult+ spend so much time fight each other that they can't #eat others up. $7& %-amples+ $a& ongress+ legislative po(er--pass #inding rules of #ehavior, institutional chec5+ president thro(n into leg process #y means of 8ualified veto. Po(er of the purse-s(ord, pres and court can't have pay reduced -- shield. President+ recommendatory po(er, ongress doesn't have to listen #ut may pay political price. $#& President+ nominating po(er for offices--appointments clause. Eut, senate must confirm many. Also house and senate pic5 o(n. And president can't appoint to offices if congress hasn't created and funded office, passed statutes to give officer po(er. $c& %-ecutive po(er+ some measure of control over la( enforcement-s(ord. Eut can't loc5 up congress on (ay to session. "u#.ect to impeachment po(er. an't arrest (ithout money to pay marshals. $d& ommander in chief po(er, limited #y congress po(er of purse. $C& :rant a dangerous po(er to one #ranch, put counter force in other. 0ntricate (e#. $3& Oeep po(ers separated #Bc po(er tends to corrupt so that there are three sets of po(ers = #ut that is not enough. ;ust not only give a
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s(ord, #ut also a shield. T,en"ie"h Cen"!r-: /undamental fact of modern administrative la(+ actuality is in direct contradiction (ith constitution. !o real dissent that modern administrative state is unconstitutional. ;ade deli#erate choice that administrative state (ill #e supported rather than original te-tBvie( of framers. All three #ranches have signed on to this, and also pu#lic--pres election of 1@*3. i. >andis, 6he Administrative Process $1@*1& $1& An architect of modern admin state, mouthpiece for designers. $)& !otes that he is at #irth of ne( set of institutions, started in late 1144s #ut .ust emerging in 1@*4s. $*& Admin process sprang from inade8uacies of tripartite model reflected in ;adison and const. "ystem is designed to #e cum#ersome--prevent govt from doing much-->andis says this is the pro#lem. $7& Precise analysis of te-t of const is the pro#lem. reating agency (ith po(er to ma5e rules $leg&, enforce $e-ec& and .udge $.ud& (ouldn't fly under const, #ut modern pro#lems re8uire these institutions. $C& 6ripartite model doesn't (or5 in industry, no one (ho (ants to get something done (or5s this (ay, everyone (ant government to do something. !e( Deal+ government e-pansion into social legislation. 0gnore ;adison (ho didn't (ant to get things done. 6oo #ad for traditional vie( of separation of po(ers and too #ad for onst of 121@---very open, fran5 statement. $3& 9esult+ >andis (on--his structure of government has prevailed. ii. /unctionalism+ foremost proponent -- Peter "trauss+ We can go through argument of parsing trough ver#iage of const, #ut no one (ill care. "o, ta5e as starting point the (orld of 1@@2 $or 1@*1& instead of constitution of 121@. 6heory must validate large ma.ority of (orld you see or it is (orthless - trying to e-plain (hat has happened. 9einterpret const if necessary to validate (hat e-ists. "trauss says (e need some structural notion (hich validates formalism, #ut then can play around at margins. an invalidate some agencies, innovations, as long as (e don't invalidate too much. 6his is (hat virtually all scholars and .udges have done. $1& /rom 1@*3-1@23 functionalism dominated (orld and federal courts in (ay that can't #e overstated. !< <!% (as formalist. !o single prominent scholar affiliated (ith formalism. <nly one decision of ". t. could remotely #e characteri'ed as formalist+ Koungsto(n "teel $"teel "ei'ure case&--no opinion for court, some hints of formalism. 6here (as no formBfunct de#ate. iii. /ormalism+ 9esurgence of de#ate since '23. $1& Eurns P ;ar5man+ ?nderstanding "eparation of Po(ers $1@12&+ openly champion formalism. onst of 121@+ read 'em and (eep. 0f you don't li5e (hat it says, amend it. At time of (riting, Eurns (as Deputy AB:, ;eese agreed (ith this. ;ar5man, no( .udge in ;0, (as head of <ffice of >egal Policy, selected federal .udges----these guys had real po(er. 0n short period of time, formalism (ent from
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dead to party line of D<=. "till, 9eagan didn't veto things #ased on "eparation <f Po(ers. "calia is moderate formalist. $)& ;c utchen, ;ista5es, Precedent and the 9ise of the Administrative "tate+ 6o(ard a onstitutional 6heory of the "econd Eest+ $a& >ays out de#ate -- "upreme ourt in recent years has (affled #et(een formalism and functionalism. /undamental fact a#out "eparation of Po(ers modern .urisprudence+ there is none. 6. Mo ern S!)reme Co!r" Cases: $1& Euc5ley v. Jaleo $1@23& 9ene(al of de#ate. %-amine the language of the constitution----this is e-traordinary under model of interpretation up to this point. /ormalist - 1st time the ". t. struc5 do(n a piece of legislation re+ administrative state. $)& !i-on v. Administrator of :eneral "ervices $1@22& 9ecogni'ed contemporary realities of political system. /orgets language of constitution. "eparate departments an archaic vie(. /ocuses on functions of #ranch. Fuge flip in one term from formalist to funct. ould after this vie( Euc5ley as last gasp of dying vie(. Eac5 to /unctionalism $*& 0!" v. hadha $1@1*& /ormalist. 0nvalidated more statutes -- Q)44 -- than any other case. %fficiency, convenience and usefulness (ill not save statute if contrary to constitution. onvenience and efficiency not primary o#.ectives of democratic government. Euc5ley formalism not .ust a #lip. $7& /6 v. "chor $1@13&---functionalist --- annot turn on conclusory reference to te-t. ;ust loo5 to purposes underlying const provision. Attention is paid to su#stance, not doctrinaire reliance on formal categories. $C& ;istretta v. ?.". $1@1@&----functionalist. $3& >oving v. ?.". $1@@3& ----formalist -- spirit of ;adison. lear assignment of po(er to a #ranch -- allocating specific po(ers and responsi#ilities to a #ranch. 7. 6oday, formalism is still far and a(ay the minority opinion, #ut not as one-sided as #efore 1@23. Also, among formalists, there are serious 8uestions a#out ho( far they are (illing to ta5e it. onsistent application (ould eliminate Q@4R of government. ;ost (on't do this---not "calia, not Eurns and ;ar5man. Agencies an Ar"ic$e I: De$ega"ion: 1. <nce a valid rule is esta#lished, it has same effect as statute--no difference. 0f this is true, and all leg po(ers vested in ongress, ho( can agencies ma5e rules that are essentially la(. Agencies are not ongress, and don't follo( careful re8uirements of constitution $) house vote, president sign&. 0s this unconstitutional--inconsistent (ith onst of 121@? a. 0f yes, proves too much. Apply same interpretation to e-ecutive po(er. %-ecutive po(er is po(er to e-ecute-to carry la( into effect. ould say this means follo(ing e-actly, precisely (hat is said in statute---ministerial function. Any discretion (ould #e unconst. 0f ta5en to this e-treme, (ould #e inconsistent (ith all concepts of (hat an e-ecutive is in (estern (orld. Would not allo( for any prosecutorial discretion. #. 6herefore, if congress can't punt everything, #ut can punt some things, ho(
14

5.

much can it punt? Where is "he $ine ,here so m!ch iscre"ion has +een con#erre on in i*i !a$ "ha" "he- are no" e1ec!"ing +!" ins"ea are $a,ma&ing. $i& 0f ong tells agency e-actly (hat to do, no pro#lems #Bc agency is e-ecuting la(s not ma5ing them. $ii& Eut onst. places little limits for specificity of ong directives. 3e#ore "he Ne, Dea$ a. Firs" Congress+ same people (ho (ere around for drafting and ratification $still, they are acting in o(n self-interest at time as congressmen, not acting as framers&. Pension la( paying pensions Gunder such regulations as the President may directH, so first congress allo(ed #road grants of authority to agencies. "tatute doesn't seem to prescri#e any guidelines for president to follo(----standardless discretion. Eut (hat is really going on+ $i& "phere is small (here he has po(er--could not contradict statute, can't deny pensions to all. Discretion of administrator is constrained to limited sphere. 9egulations must #e designed to cover pensions. 6here (as already a pension system in place - Pres to continue. $ii& Another statute+ !o trade (ith 0ndian tri#es (ithout permit from president, permits only to Gproper personsH + leaves .ust a#out everything up to e-ec. $iii& /rom these statutes, it is not clear ho( /irst ongress felt a#out delegations of authority. +. Secon Congress: 0i& 9outes of mail carriage - amendment delegated to President the e-act route of the Post 9oad - (as defeated and ong ended up specifically designating route. $ii& Eottom line+ can't dra( much from early congress. c. Ear$- Co!r" Cases: court not very involved in early days, not very much constitutional litigation at time. $i& argo of the Erig Aurora v. ?.". $111*& $a& an ongress give pres po(er over effective date of statute? Does this ma5e pres a la(ma5er? $#& ourt said this is <O. "aid president could e-ercise discretion. ongress can put conditions on (hen statute goes into effect, so can also condition it on (hether Eritish do something, pres .ust determines (hether this is done. President is .ust agent of legislature---.ust e-ecuting. $ii& Wayman v. "outhard $11)C& $a& %-ecution of .udgments+ Oy says must accept state #an5 notes, does it #ind federal courts or can federal courts follo( la( (hich says they promulgate o(n rules? 0s federal la( unconst delegation #ecause it allo(s courts to promulgate rules? $#& ;arshall assumes there is rule that ongress can't defer so much discretion on .udiciary that it is no longer e-ecuting .udicial po(er #ut is la(ma5ing. ourt does not have
11

6.

foggiest notion a#out (here to dra( line. $c& Proposing a test+ 6he line has not #een e-actly dra(n (hich separates those important su#.ects, (hich must #e entirely regulated #y the legislature itself, from those of less interest, in (hich a general provision may #e made, and po(er given to those (ho are to act under such general provisions to fill up the details. "o, ongress must decide important things. 6his is li5e def'n of agency--same circularity $iii& /ield v. lar5 $11@)& $a& >i5e Erig Aurora+ here, Pres. is trigger to end free-trade provisions if country places unreasona#le trade restrictions on us. $#& ourt says <O. President only had discretion on duration of suspension. "imply e-ecuting act of congress, not ma5ing a la(. $c& "eems pretty conclusory. President is ma5ing a vague determination---more vague than in Erig Aurora---(hether trade restrictions are unreasona#le. loser call. * .ustices dissented. $iv& =.W. Fampton =r. P o. v. ?.". $1@)1& $a& 6rade la(s again $this (as principal area in (hich e-ecutive (as #eing given po(ers, fe( agencies, fe( (ith po(er&. "tatute sets duties, authori'es president to change amounts to e8uali'e cost of production---may#e even more discretionary than reciprocally unreasona#le--much discretion, also, not .ust determining effective date, greater po(er--ad.usting amount of duties. $#& ?pheld. 1& Fo( determine+ ongress must decide (hat is most important according to common sense and the inherent necessities of the governmental coordination. $"o, they still don't have a clue ho( to decide&. )& 0f ongress lays do(n Gintelligi#le principleH for person to conform to, not unconstitutional delegation. 0t (ill #e a good enough restraint on the delegated po(er. $v& E*en a#"er 89: -ears, ha in*a$i a"e ;ero #e era$ s"a"!"es. $vi& 6est+ intelligi#le principle. Ne, Dea$: agencies go from minor #it player to most important aspect of government. :ov't ta5es much larger role in regulating economic and social life. /ollo(ing vision of >andis $post-progressivism& and %astman $progressivism&, ongress left details of agencies to the e-perts. reate agencies (ith very #road latitude, let e-perts decide (hat they need to do. $6he agency shall promulgate rules to further pu#lic interest, #lah, #lah, #lah.. & "tandards start testing limits of intelligi#le principle.
1)

a.

7.

ro(n .e(el (as !ational 0ndustrial 9ecovery Act---President is economic c'ar. Approve codes of conduct for industries. ollectivi'e various industries, government sponsored cartels. 0mmediately challenged on nondelegation grounds $also on commerce clause, e-ceeding po(ers& #. Panama 9efining o. v. 9yan $1@*C& Petroleum code of conduct. Actually, code of conduct had #een amended out of e-istence in original document due to clerical error. 6here (as no re8uirement at time of pu#lic notice--could #e 5ept in des5 dra(er. "o "upreme ourt couldn't deal (ith issue of (hether code of conduct (as <O. Dealt only (ith statute. President allo(ed to prevent distri#ution of oil if violated state la(. 0s giving president this po(er (ithin delegation po(er? $i& ourt says goes too far---first statute to #e struc5 do(n under nondelegation doctrine. $ii& !o intelligi#le principle here---no guidelines at all. !ot a hard case, so no ne( rule here. $iii& 6his case .ust tip of ice#erg. c. A.>.A. "chechter Poultry orp. v. ?.". $1@*C&+ 6he #ig case. ourt s8uarely faces 8uestion of (hether congress can give this 5ind of po(er to president. Fere, the !09A purports to limit discretion of president in some (ay -- #y declaring policy of ongress+ essentially Gpromote goodness and nicenessS, not necessarily even consistent (ith each other, (hich (ould allo( essentially any action at all. ourt said doesn't limit president's discretion. "tri5es do(n !09A. $i& 6his (as as e-treme a statute as you (ill ever find. >ittle in (ay of intelligi#le standards and also has incredi#le scope. All of economy. d. 6hese (ere last t(o cases overturned #y "upreme ourt on #asis of nondelegation doctrine. After this, agency charters (ere still general $promulgate rules to protect investors, set fair prices, etc.& #ut court al(ays found an intelligi#le principle. "till, every ten years or so, court (ill decide case, say something li5e Gin this case, (e are not deciding (hether statute is unconst, #ecause (e are construing it a different (ayH to avoid reaching const issue. 6his is ta5en to mean ourt still treated non-delegation doctrine as a via#le doctrine, so couldn't say it (as dead as a doctrine. $i& Doctrine of avoidance+ techni8ue of stat interpretation--(ell accepted--(hen stat is challenged on const grounds and is possi#le to construe in (ay that you don't have to reach const 8uestion, then do it. A#"er "he Ne, Dea$ 44 Mo ern Cases a. 0ndustrial ?nion A/>- 0< v. American Petroleum 0nst. $1@14& $i& <"FA case--su#unit of Dept of >a#or--vests authority in "ecretary of >a#or, he su#delegates to Administrator of <"FA. 0n form, "ecretary is supposed to #e ma5ing decisions, in fact, much lo(er. "tatute authori'es <"FA to promulgate rules regulating use of ha'ardous materials in (or5place. 6his is rulema5ing--setting standards $general principles (ith future effect&. $ii& ase is a#out #en'ene. Agency had lots of evidence that a#ove certain level $144 ppm& there is lin5 to cancer. At )C ppm,
1*

$iii&

$iv&

evidence of lin5 to #lood effects (as pretty good. Eut, @@.4R of e-posures (ere less than 14 ppm. Agency can't prove harmful #elo( 14 ppm #ecause no data. "tatute says+ set standards to prevent health impairment, Gto the e-tent feasi#leH, remedy feasi#le+ $a& "hut do(n plant? $#& Agency thought feasi#le meant Gas long as you don't drive out of #usinessH and Gtechnologically achieva#leH $c& /easi#le could mean regulate at level (here #enefit of regulation e-ceeds cost. "o, does statute call for cost#enefit analysis? $6his 8uestion is (hat most people thought this case really involved.& <pinions+ !o ma.ority interpretation of Gto the e-tent feasi#leH $a& "tevens plurality+ !e( theory--focus on definition of Goccupational safety and health standardH--must #e Greasona#ly necessary or appropriateH -- reads this to re8uire that, #efore regulating any su#stance at all, must conclude that there is a significant health ris5. 6hreshold re8uirement on agency. 1& Why does court misconstrue statute li5e this? 6o avoid constitutional issue. 0t is unreasona#le to assume ong meant to give secretary all this po(er. Doctrine of avoidance. Were (e to construe statute to give <"FA po(er to regulate to point of feasi#ility, it might #e unconstitutional under "chechter. )& DonMt get to EA issue. $#& Po(ell+ #asically agreed, #ut (ould read statute to re8uire full #lo(n cost #enefit analysis. $c& 9ehn8uist+ 6hought no one 5no( (hat Gfeasi#leH meant, not even ongress. "tatute means everything to everyone so that it can pass, passes off issue to agency = classic case of unconstitutional delegation. 1& 6his is first time since 1@*C that even a single opinion has raised non-delegation doctrine. Jery significant - revived intellectual de#ate over nondelegation doctrine. $d& Who is right+ per >a(son, ;arshall (as right in that congress didn't intend agency to ma5e threshold determination, 9ehn8uist had point on non-delegation doctrine. %ven agency didn't #elieve its definition+ e-cluded gasoline industry (hich (as #iggest e-poser $no( it is included--fi-ed no''les&, so it (as technologically and economically feasi#le #ut not regulated--#ecause agency reali'ed feasi#le included politically and socially feasi#le. "tatute is meaningless. 0f discretion is this #road, li5e a goodness and niceness commission.
17

C.

<"FA's scope is #road--regulates all (or5places, all segments of economy. ;odern doctrine+ What is relevant is not .ust the discretion granted #ut also the .urisdiction of the agency. Can a$$o, more iscre"ion i# '!ris ic"ion is sma$$. More a!"hori"-, $ess iscre"ion a$$o,e < )& 9ehn8uist says, if delete Gto the e-tent feasi#leH, (ould #e constitutional, (ould #e clear. >a(son says not true+ perhaps #enefit from lo( level e-posure to #en'ene. "tatute gives no guidance. $e& ;arshall dissent+ follo( agency. Doesn't violate nondelegation doctrine. /easi#le means technologically and economically feasi#le. #. American 6e-tile Wor5ers+ ne-t year, same statute--- ourt decided (hat is (as supposed to decide+ (hether re8uired to used EA---ans(er (as !<. 9ehn8uist dissented, (ith = Eurger+ invalidate statute. c. While doctrine at this point #ac5 on map, nothing happens for many years. d. ;istretta v. ?.". $1@1@&+ ongress has created "entencing ommission. ;any litigants raised concerns, including nondelegation challenges. ;a.or 8uestion+ has congress specified enough intelligi#le principle to constrain discretion? onstraint on "entencing ommission is minimal. $i& Elac5mun+ $for ourt& "ounds li5e >andis. 0n comple- (orld, ongress can handle all issues-- ongress simply cannot do its .o# a#sent an a#ility to delegate po(er under #road general directives $this admits that congress is delegating its legislative po(er, not claiming that they are only letting someone e-ecute---a classical state of functionalism.& >et e-perts do .o#. "ays that (e have upheld (ithout deviation ongress' a#ility to delegate po(er under #road standards. While constraint here is minimal, it is no more minimal than many other cases. $ii& 6hus statutes do not have to provide great detail, .ust intelligi#le principle. "tatutes (ill not #e struc5 do(n for unconst. delegation of po(er #Bc of lac5 of specificity. $iii& 0t may #e possi#le to stri5e do(n if the scope of authority is too (ide. $iv& "calia dissent+ normally an agency does something, carries something into effect. "entencing commission isn't doing anything #ut promulgating guidelines. "ee this as a pro#lem Li#e a#"er Mis"re""a: Wha" is $e#"<< a. "5inner v. ;id-America Pipeline o $1@1@&+ >ets "ecretary of 6rans set user fees--lets him set a ta-. "hould standard #e stricter for ta- case, very legislative? !o, not a pro#lem - non-delegation doctrine is struc5 do(n. #. 6ou#y v. ?.". $1@@1& ontrolled "u#stances Act. >o(er court $11th ircuit& in this case overturned statute on non-delegation grounds. "tatutes lets AB: decide (hat su#stances are covered. "hould a stricter non-delegation standard #e used for deciding (hat are crimes? ?nanimous !o. Don't reach issue, statute not a pro#lem. %ven under a stricter
1C

1&

c.

d. e.

f.

standard, this statute passes muster. 9ehn8uist and "calia seem to have given up. A s)ar& o# $i#e< $i& "tate of "outh Da5ota v. ?.". Department of 0nterior $1th ir. 1@@C& t. invalidated statute authori'ing "ecretary of 0nterior to #uy land for 0ndians. !o intelligi#le principles, no principle at all. $ii& >oving v. ?.". $1@@3& President, #y e-ecutive order, specified criteria $#ased on death penalty decisions& to #e applied in military death penalty cases. Argued this decision is for ongress, not president. %ight .udges re.ect claim--say military discipline has traditionally #een .o# of president of commander-in-chief. E?6 Ghad the delegations here called for the e-ercise of .udgment or discretion that lies #eyond the traditional authority of the President, >oving's argument that ongress failed to provide guiding principles to the President might have more (eight.H "ome have sei'ed on this as saying may#e this isn't a political 8uestion after. Eig conference inspired #y this sentence. Tes" is s"i$$ INTELLI=I3LE %RINCI%LE: )re""- m!ch an-"hing ,i$$ )ass. On$- "ime o*er"!rne s"a"!"e ,as ,hen sco)e o# '!ris ic"ion ,as $arge in a i"ion "o $ac& o# cons"rain" on iscre"ion. "cholars still (rite huge volumes on issue. Why? $i& >ine #et(een e-ec and leg is one of fundamental 8uestions in admin la( a#out division of po(er. Figh sta5es+ (ho e-ercises po(er? ;odern state turns on interpretation of nondelegation doctrine. 0f it (ere applied, @4R of agencies (ould fall. $ii& A#sence of a clear ans(er, today or in 121@, on appropriate standard---lots of room for play $iii& !ormative one--(hatever constitution says, there can also #e de#ate a#out (hether it is a good idea. ;uch of (riting involves normative 8uestions--give real (orld advice to congress a#out drafting statutes. $a& People (ho thin5 delegation is #ad+ those (ho #elieve in modern capture theory--don't (ant to give po(er to people (ho (ill misuse it. 6his de#ate cuts across traditional lines. "ome (ho champion activist government still critici'e vague delegation. 1& Democratic values+ pro#lem (ith delegation is that (e don't vote for agency heads. 9adish. $#& Pro delegation+ ;ore democratic to have agencies than congress ma5e la(s. When vote for ongress, are voting for position on all issues--entire pac5age. With agency, can concentrate lo##ying on the issue you (ant--no #undling. Cons"i"!"iona$ e+a"e among scho$ars: i& /unctionalists+ don't 8uestion delegation, it is (ater under the #ridge. ;odern state is a given - no constraints on ongress. ii& 6here are constraints on ongress #ut they are non-.usticia#le courts cannot administer them. ". t. vie(.
13

3.

6here are constraints on ongress and they are .usticia#le. 9evive non-delegation doctrine+ #ut, (hat should this doctrine loo5 li5e? $a& "choen#raugh+ Fo( decide not constitutional? >oo5 at statute, thin5 of ho( many cases (hich could arise under statute could #e resolved #y statute, if statute itself (on't resolve many cases, unconst, if it (ould resolve cases, const. $#& 9adish+ Pro#lem (ith deleg is democracy, const has same issue (ith deleg, const focuses on democratic principles, silly to have all this process if congress can .ust punt on all issues. ;ust #e meaningful #ody. Political commitment doctrine+ if, in voting on issue, congressman had to ma5e a political commitment, then const, if .ust contains meaningless (ords and ta5es no stand, unconst. $c& >a(son+ ;ore constitutional originalist--(hat (ould pu#lic understanding in 121@ have thought a#out it. To +e cons", s"a"!"e m!s" reso$*e "hose iss!es "ha" are s!##icien"$im)or"an" "ha" congress m!s" reso$*e "hem. ;arshall had same test in Wayman v. "outhard. 9esult still much li5e 9adish and "choen#road. Con"ro$$ing De$ega"ions+ ongress delegates enormous po(er to agencies, #ut tries to retain po(er. a. Legis$a"i*e O*erri es $i& S"a"!"or- O*erri es - ongress can override agency decisions #y statute (hen it disagrees (ith the agency. ongress could amend a statute and ta5e a(ay all agency discretion or leave authority alone and overrule on a case #y case #asis. 6his is difficult #Bc the legislative process is cum#ersome. <nly (or5s in cases of e-treme pu#lic outrage - ignition loc5s. $ii& Legis$a"i*e Ve"o 4 0n 1@*4s, ongress came up (ith legislative veto+ pass la( saying that regulation may #e overruled #y t(o housesBone houseBcommittee of ongress (ithout president's signature. Fundreds of statutes included. $a& 1@1*+ 0!" v. hadha---stunning case+ invalidated legislative veto. ontains provision for AB: to suspend deportation, also allo(s legislative veto of aBg suspension. hadha challenges legis veto as unconst. ourt agrees. 6(o reasons+ 1& Eicameralism $not really a reason& -- congress must act, (hen it acts, through #oth houses. "ince this veto (as one house, unconst. !ot real+ D ir at same time invalidated a t(o house veto, "up t affirmed. )& ?ncconst circumvents legis process, presentment clause. congress is acting in a legislative capacity here, has legal effect. ongress can only act (ith legal affect through full #lo(n, t(o house,
12

ii&

presentment. $#& "ignificance+ 1& ;ore statutes do(n tu#es here than in all cases #efore com#ined. )& ;ode of analysis+ li5e Euc5ley v. Jaleo, formalism as method of constitutional ad.udication, could have dismissed as anomaly, #ut hadha very formalistic. an't dismiss formalism as defunct, meant de#ate of formBfunct still alive. *& ongress had good policy reasons for (anting legis veto, good functionalist defense of leg veto. White argued, (e have given up on nondelegation doctrine, ongress is .ust trying to e-ercise some form of democratic control over agency activity. ;a.ority said (e are interpreting const, not setting good policy. %-plicitly re.ects arguments on purpose and effect. 7& Po(ell's separate opinion+ agreed leg veto unconst, not #ecause of violating re8u'ts fro legis action, said #ecause congress is #ehaving li5e =?D0 0A> #ody, not legis. "o, violates Art 000. C& 9ehn8uist only one right+ court did not have .urisdiction to hear case. $iii& 3ac& "o "he S"a"!"or- Dra,ing 3oar : "ince 1@1*, congress has continued to pass statutes including legislative veto, #ut slightly different focus. /ast-trac5 procedures for ongressional revie( of ma.or agency rules - ong may disapprove (B .oint resolution that satisfies #icameralism and presentment re8uirements. +. A))ro)ria"ions $i& ongress control #udgets of agencies, affects level of activity agency is engaged in, prevent enforcement, can control e-tent of enforcement if not control actual case. $ii& Also, #ecause of po(er of purse, agencies 5no( they have to please congress to get funding. $iii& 0ndividual agency actions+ appropriations riders--say in funding Gno portion of this (ill #e used to do NH . ?nclear ho( far congress can ta5e this--- say Gno portion (ill #e used to prosecute 9osten5o(s5iH? !o one 5no(s. Doctrine of unconstitutional conditions. ;ost of time, e-ec department caves in. c. Legis$a"i*e his"or-: $i& In irec" In#$!ence: Co!r"s. ong passes statute, several committees, staff prepare reports (hich purport to give instructions to court on interpretation, often there are many reports. Eig de#ate among scholarsB.udges over ho( much consideration to give to reports, de#ates, hearings. ?p to C years ago, >a(son said malpractice not to #rief leg history on statutory issue, less certain today.
11

$ii&

Direc" In#$!ence: Agenc-. Agency has little to lose in follo(ing leg history. Will treat seriously regardless of (hether courts thin5 important. Agencies (ant to please ong committees that are funding them.

C.

Agencies an Ar"ic$e II: Who are the officersB heads of agencies and ho( do you appoint and remove them? onst doesn't tell us much a#out removal. 8. !ondelegation doctrine (or5s hand in hand (ith other doctrines, including enumerated po(ers. "chechter+ violates nondelegation doctrine A!D e-ceeds enumerated po(ers $commerce clause&. Post 1@*C+ nondelegation doctrine died #y default A!D enumerated po(ers doctrine died, even more e-pressly. 9esult+ constitutional .urisdiction of federal govt e-pands enormously and this po(er is transferred into hands of administrative agencies+ agencies (ield nearly limitless po(er. "o, enormous #attles to #e fought over (ho gets to (ield this po(er. 5. A))oin"men" o# Agenc- O##icia$s: a. Article 00, D ), l. )+ Appointments lause+ $i& ;ode 0+ President shall nominate and appoint (ith Advice and consent of "enate - Am#assadors, ". t. .udges. . . and all other officers of ?.". ;ust #e used (hen dealing (ith someone (ho is an officer #ut not an inferior officer. $ii& ;ode 00+ ongress may #y la( vest appointment of such inferior officers as they thin5 proper in the President alone, in the ourts of >a( or in the Feads of Departments. <ptional - dispenses (ith cum#ersome process of "enate revie(. ;ay only #e used+ $a& for inferior officers $#& (hen ongress has so directed. $iii& What te-t doesn't ans(er+ $a& Who is an officer? !ot defined #y onst. ;entioned in several places. President commissions all officers of the ?". What su#set of ?" employees are officers? ;ost are appointed #y selection process $civil service& (hich does not conform to this model. Assumption therefore is that not everyone (ho (or5s for ?.". is an officer. $#& What is an inferiorBprincipal officer? $c& Who are courts of la(Bhead of departments capa#le of receiving the appointment po(er? $d& Does const allo( head of departments to appoint inferior .udicial officers and vice versa? Are interdepartmental appointment allo(ed? #. Euc5ley v. Jaleo $1@23& Who is an officer? Any appointee e-ercising significant authority pursuant to the la(s of the ?.".---circular+ officer if important enough to #e su#.ect to appointments clause. 0n most cases, this is o#vious. $i& /ederal %lection ommission+ la( gave appointment po(er to head of ongress. ?" argued that these positions are not officers of ?". 0f they are officers, this la( is most unconstitutional ever. Do they have significant authority? Kes #Bc they are so important, congress
1@

c.

d.

(anted to appoint them--have life or death po(er over elections. "tatute revised, still allo(ed non-voting mem#ers to #e appointed #y heads of congress, D ir said still not <O, still (ield su#stantial authority. $ii& 6he fact that this case is so easy should sho( ho( "<P (as in 1@23+ people thought they could get a(ay (ith this--create federal agency li5e this. 6he fact that Euc5ley invalidated a la( on "<P grounds (as significant. >ast time something li5e this happened (as "teel "ei'ure--invalidated a presidential action, not a claim of congressional po(er. $iii& Also significant+ mode of analysis+ loo5ed at te-t. Fadn't #een applied in "<P la( for half a century. People suspected it (ould never #e used again. 6his case (as re#irth of formalism as mode of constitutional analysis. ;orrison v. <lsen $1@11& PrincipalB inferior officers, 0nterdepartmental appointments $i& =udges of specially constituted court select special prosecutors. Ono( these people are officers+ can congress deviate from ;ode 0+ no confirmation, "o, (hat is inferior officer? 0f inferior = may#e o5 to delegate appointment po(er to court. $ii& "pecial prosecutor+ same era of statutes, reform as /% . ;iniattorney general. 9esponsi#le for prosecuting limited num#er of people for limited range of issues. 0s this inferior or principal officer? ourt says line far from clear, onst doesn't provide ans(er. $iii& ourt loo5s to four indicators+ An officer is a principal officer if important enough to #e su#.ect to ;ode 0. $a& 0f "u#.ect to removal #y higher e-ec #ranch official $li5e agency head&, not important $#& 0f %mpo(ered to perform only limited duties, not import. $c& 0f <ffice limited in .urisdiction, not important. $d& 0f >imited in tenure, not important. $iv& 0n this case, special prosecutor not impt enough, inferior officer. $v& Dissent+ "calia 8uarreled (ith application of Gimportant enoughH test. "calia doesn't provide test of o(n. "ays can't #e inferior if doesn't ans(er to someone else. $vi& 0nterdepartmental appointments <O? 0s the special court a Gcourt of la(H that ong can delegate appointment authority to? ourt says not sure, may #e limits to this, if there (ere incongruity #et(een function of courts and their duty to appoint, here, no incongruity, don't reach. ;ay #e unseemly for interdepartmental appointment if office is important enough to #e unseemly for interdepartmental appointment. $vii& "u#tle issue+ case seems to say that ong. must 5eep out of the appointment process (hen the person #eing appointed is given significant po(ers. /reytag v. ommissioner of 0nternal 9evenue $1@@1& Article 0 ourts-)4

ad.udicative #odies. =udges appointed #y leg #ranch, no life tenure, no salary guarantees. ourt of laims, 6a- ourt. 6a- ourt has 1C year terms, no salary guarantees. an sue over ta-es in Art. 000 courts, #ut procedurally must sue for refund. an't challenge #efore paying e-cept in ta- court. 0ssue an ongress grant the chief .udge of ta- court appointment po(er as a Gcourt of la(H or Ghead of departmentH? $i& All nine said <O for = to appoint #ut different rationales. $ii& /ive said chief .udge is head of Gcourt of la(H, /our said chief .udge is Ghead of departmentH. e. Weiss v. ?nited "tates $1@@C& ;ilitary .udges are appointed in conformance (B the Appointments clause to their positions as commissioned military officers, #ut do not receive a separate appointment under Appointments clause to their positions as military .udges. 0ssue+ is another appointment necc? !o. $i& :ermaneness test+ if the ne( po(ers are germane to old position, then donMt need a ne( appointment. $ii& Fere all military officers play a role in operation and administration of military .ustice system. f. %dmond v. ?nited "tates $1@@2& "calia holds that oast :uard .udges are inferior officers. "ays its time to set out a ne( test for distinguishing principalBinferior officers that loo5s li5e his dissent in ;orrison v. <lson. $i& Wants a #right line test+ inferior officers are officers (hose (or5 is directed and supervised at some level #y others (ho (ere appointed #y pres nomination (ith adviceBconsent of "enate. $ii& /ormalist dream - loo5 at chain of authority. $iii& "outer dissent+ #etter to loo5 at su#stantive duties - ;orrison had it right. >a(son agrees. 6. Remo*a$ o# Agenc- O##icia$s a. 6his is the main method of controlling. Don't li5e ho( you have e-ercised discretion, you are fired. What are mechanisms? Who has the po(er? 6his has for )44 years #een main issue regarding control. Why did it ta5e 1C4 years to reach court? $i& onstitution 6e-t = no removal clause, has si- clauses regarding impeachment. 6his is cum#ersome process - t(o houses, )B* vote on oath or affirmation. >oo5ing at te-t could come to 7 conclusions+ $a& 0mpeachment only--only one mentioned $#& "(eeping clause $necessary and proper clause& esta#lishes agencies, sets salaries, etc. 6herefore ong can determine tenure of offices. ould set as fi-ed term or grant removal authority to someone or reserve to itself $not allo(a#le per Eo(sher&. $c& ;ode of removal follo(s mode of appointment+ if appointed under appts clause (ith confirmation, then president removes (ith senate confirmation, if mode 00, #y individual, then individual can remove. 6his (as only mention of removals in /ederalist papers. $d& President is granted e-ecutive po(er. Doesn't administer it personally, .ust supervises. 0f he is to supervise them, he must have po(er to sac5 them. President has to ta5e care that la(s #e
)1

#.

c.

faithfully e-ecuted, can't do if can't ensure officers are doing. 1& /irst ongress+ G6he Decision of 121@S+ statute said president could remove state department cler5, provo5ed de#ate over (here removal po(er resided+ in ongress, (hich is .ust granting it then to President, or inherently in president? 9esolution+ president has #ac5ground po(er to remove, #ut vote in house (as close, vote in house (as 1414, tie-#rea5er #y JP for presidential authority, so not ringing endorsement. $e& ;ar#ury v. ;adison+ five times mentioned President doesn't have unlimited authority to remove .ustice of peace, term (as set at five years. "till, =P loo5s more li5e .udge than admin official, #ut not an Art 000 life-tenured .udge. ;yers v. ?.". $1@)3& /irst ma.or "up t decision dealing (ith (ho gets to remove officials. President, through Postmaster :eneral, removes postmaster in <9. Postmaster says removal must #e confirmed #y "enate. 6aft says Decision of 121@ (as right---persuasively reasoned, president must have po(er in order to e-ercise his authority. 6hus President has the po(er to remove e-ecutive officers. $i& 6his is a great result if you li5e the unitary e-ecutive and its political accounta#ility. $ii& 6erri#le result if li5e the Progressive vie( of govt #y apolitical e-pertise. Fumphrey's %-ecutor v. ?.". $1@*C& $i& Differences+ $a& Depression, 9oosevelt era. :ro(th of the administrative state $#& Panama 9efining and "chechter+ !09A is unconstitutional delegation = president can't #e economic dictator $ii& /acts+ /ederal 6rade ommission, formed during Progressive %ra 1@17, regulate unfair and deceptive practices, one of first independent agencies $#y statute, congress tries to restrain president's removal authority&. "tatute says president can remove for cause $understood to mean for drun5enness, etc, not a#out policy disagreement&. President says po(er is unlimited to remove. $iii& Folding+ president does not have unlimited removal po(er. $iv& 9easoning+ "ince agency not legis, .ud or e-ec, president can't remove unconditionally. /6 not purely e-ecutive thus Pres removal po(ers can #e limited to cause. /unctionalism opinion. $v& Aftermath+ ta5en as clear ratification of model of independent agency, agency heads placed #y statute #eyond removal po(er of president, not clear ho( far you could go. Eo(sher v. "ynar $1@13& :ramm 9udman Follings Act+ ongress cannot reserve removal po(er to itself. ongress had granted #udgetary authority $po(er to determine if targets (ere met& in omptroller :eneral, employee of congress (hom congress could remove. ;orrison v. <lsen $1@11& "pecial prosecutor appointed #y special court. President can only remove for cause. onst? ?nder ;eyers, no. ?nder Fumphries e-ec, pro#a#ly no, #ecause it said /6 (as not purely e-ecutive, (hile criminal la( enforcement is predominantly e-ecutive, so should have removal po(er. ourt
))

f.

re.ects distinction #et(een e-ec and non-e-ec officials. What is test then? $i& Do the restrictions on the presidentMs po(er to remove impede the PresidentMs a#ility to perform his duties, functions under onst. $ii& ircularity+ president must have unlimita#le po(er to remove those officials so important that president must have unlimited po(er to remove them. ;orrison is still la(. $iii& "trong validation of independent agency model. $iv& "calia's Dissent+ ringing affirmation of formalist methodology. "ummary of ;odern la( of removal $i& ongress cannot reserve to itself po(er to remove $ii& ongress can su#stantially restrict president's po(er to remove at least some officials Uni"ar- E1ec!"i*e: What e-actly is pres's po(er to control administrative departments? Art. 00 D 1 states the e-ecutive po(er shall #e vested in the President, not in the agencies. !o 8uestion it creates some form of unitary e-ecutive+ one single president, rather than many. "ome #elieve vesting clause .ust says there is one president, others $>a(son& #elieve phrase constitutes a grant of po(er to president. "till, president doesn't e-ecute the la(s himself. ;ost statutes purport to vest authority directly in su#ordinate officials. What if president disagrees (ith actions of agency---say, su#stitutes his o(n regulations for those promulgated #y agency? Which is valid? !o ans(er in American case la( to this 8uestion. <ne circ ct case from early 1144s says president has no such po(er. 1@th entury aBg's split on 8uestion. )4th century has focused on removal. "till, if agree president must have authority, overrule ;orrison, (ould not guarantee all e-ec po(er is vested in pres - if doesn't li5e regs, can fire secretary, #ut (hat happens to reg? valid? have to appoint ne( secretary to overturn? 0f #uy strong e-ec theory, must #uy that he can step into shoes of secretary, or, could at least veto anything he doesn't li5e-anything else is invalid.

6.

D.

Agencies an Ar"ic$e III: vests .udicial po(er in one supreme court and in such inferior courts as congress may from time to time esta#lish. ontains guarantees of independence-tenure protections, salary protections. 0f congress doesn't li5e ho( court ma5e decisions, can it transfer po(er to decide these cases to others it A! control? 0s this vesting .udicial po(er in someone else? 0s the #ody e-ercising e-ecutive po(er or .udicial po(er? Where to dra( line+ $no real ans(er, one e-ample case& 1. /6 v. "chor $1@13& ommodities /uture 6rading ommission has .urisdiction over pendent common la( claims as (ell as statutory claims. 0ssue+ can it have such Art.000 .urisdiction? Kes, does not violate "<P. ourt says don't loo5 to te-t or formal categories, loo5 to purposes. !o formalistic rules, determinative factors. ). Ad.udicatory authority of agency (ill almost al(ays #e <O. *. an you get a .ury hearing (hen agency is ad.udicating? ;odern la( says !<-agencies (ould grind to halt. Agencies an "he Se)ara"ion o# %o,ers 4 agencies do e-ecutive, legislative $rulema5ing& and .udicial $ad.udication& functions at same time. 1. Co!r" has ne*er /!es"ione a+i$i"- "o com+ine #!nc"ions, +!" has
)*

E.

r!$e on ,he"her a$$o,ing an en#orcer o# r!$es can a$so a '! ica"e "hem. a. Agency+ has many meanings, single institution com#ining all functions of government, violates principle of "<P, agency that sets rules then prosecutes violations and ad.udicates them too, appeal is to agency, (hen finally ma5e it to Art 000 court has strong presumption of correctness on #oth la( and facts. #. 0n 1@)2, court said can't have system (here ad.udicator has sta5e in outcome--violation of DP (here ad.udicator's pay depends on outcome. c. 0n 1@2*, court said unconst to have #oard of optometrists composed of independent optometrists licensing optometrists--compromises rights of chain optometrists--conflict of interest d. Withro( v. >ar5in $1@2C& "tate agency, procedural due process clause under 17th amendment---applies e8ually to state and federal agencies "tate agency com#ining * po(ers, issued rulema5ing, same entity (hich investigates and files charges also decides (hether there has #een a violation. 0s this a PDP violation? are administrators so interested in outcome that they can't #e o#.ective? ii. ?nanimous court said no PDP violation. 6o say yes (ould invalidate all modern agencies. iv. %sta#lishes that DP clause $and principles of "eparation <f Po(ers most li5ely& do not ma5e it unconst for agencies to com#ine prosecutorial and ad.udicatory functions. Se)ara"ion o# %o,ers an Se)ara"ion o# F!nc"ions a. 0s there any(ay to #ring good parts of "<P #ac5 into system (ithout crashing it do(n? ;any of the things (e'll loo5 at in future (ee5s are attempts to #uild into system the values of onst of 121@ that are not going to #e imposed as a matter of constitutional la(. #. ;odern on doctrine permits near limitless com#ination of functions in agencies, #ut ong can dra( a nonconstitutional line at an earlier point. i. APA gives A>=s some statutory independence from the agencies employing them, though less than onst grants to Art.000 .udges. c. Ey statute, scheme of federal la( mostly comes up (ith .unior varsity version of "eparation <f Po(ers--separate functions (ithin agency. Agency as (hole can ad.ud, prosec and e-ec, #ut must #e different people (ithin agency == statutory doctrine of separation of functions. Principle not carried out fully--#ig e-emption+ head of agency can do all three at same time. Ad.udicators in an agency for most part are agency employees #ut are of special class+ administrative la( .udges $A>='s&. 6hey are not .udges--no tenure guarantees, no salary guarantees. When created, (ere called hearing officers. Discipline handled through other agency, salary not guaranteed, #ut not controlled #y agency head, set #y other agency on gov't (ide #asis.

5.

)7

STATUTOR> CONSTRAINTS ON A=ENC> ACTION I. The A minis"ra"i*e %roce !re Ac" 4 limits on procedures a. <vervie(+ APA deals (ith topics other than procedure, APA is not only source of admin procedure, not al(ays even most important source of admin procedure. %nacted in 1@73. 6here have #een some amendments--none relevant to this course, for our purposes, has #een unamended since 1@73. 0n many important respects, APA of 1@73 loo5s little li5e Admin la( today, in other (ays, te-t is still determinative. iv. <rigins+ enacted #y unanimous voice vote of congress and signed #y President--not controversial. Would have #een shoc5ing 14 years earlier-admin procedure had #een hot topic for first third of century, (as no systematic study of procedure and no systematic application . Wasn't enough admin la( out there prior to !e( Deal to #other systemati'ing. Agencies then #ecome single dominant po(er center in government. 6hree factions during rising admin state+ $1& g!ng4ho Ne, Dea$ers+ >andis---principal advocates of governance #y admin agencies, (anted less procedures, procedures anathema--(ould get in (ay, don't run #usiness la( procedural due process, trial li5e procedure $or separation of po(ers -also >andis&--don't (ant to formali'e process, $)& /!eas- Ne, Dea$ers-share enthusiasm for administrative governance, chose admin gov over const #ut not happy a#out it, didn't have contempt for forms of la(B procedure, (illing to tolerate less efficiency, more procedural formality to 5eep from sharp #rea5 (ith past, (anted to conform to traditional notions of procedural fairness, $*& an"i4Ne, Dea$ers+ opposed to ne( model of admin governance, (illing to fight on $a& constitutional front $agencies unconst+ delegation, structure, e-ceeding enumerated po(ers&---(or5ed until 1@*3, $#& political front+ legislative front, prevent enaction of statutes creating agencies, election of 1@*3 put end to this, s(eeping /D9 #ac5 in, $c& proceduralism+ #urden agencies #y procedure, #ig connection #et(een su#stance and procedure, so much procedure that defeat su#stance. this strategy could dra( on long tradition that government can only act under proper procedure, they could appeal to 8ueasy !D's on this. ongress passed first statute in 1@74+ Walter->ogan Eill+ (ould have re8uired much agency action to occur only through rigorous, .udicial model procedures, >andis said this (as end of modern administration, /D9 vetoed ostensi#ly on ground that AB: still studying su#.ect of procedure, so should (ait. WW00 changed picture+ admin procedure put on #ac5 #urner for (hile, after (ar, the anti-ne( dealers (ere gone, no longer a !e( Deal on ta#le, .ust 8uestion of (hat procedure to use. "o, APA passed unanimously+ compromise #et(een gung hos and 8ueasies. v. 6e-t of statute+ $1& ? 998: Definitions+ agency, rulema5ing, ad.udication. APA ma5es distinction #et(een rulema5ing and ad.udication the fundamental distinction in admin la(. $)& ? 995: /reedom of 0nformation Act+ not covered in this course.
)C

$*&

? 996: R!$ema&ing 44 sets out procedural roadmap for federal agencies engaged in rulema5ing. $a& e-ceptions+ !BA to military, foreign affairs, agency management, personnel, pu#lic property---roughly @4R of government. "till not devastating+ Does include regulation of conduct. Also, lots of agencies that fall (ithin e-emption choose to #ind themselves to statute any(ay. $#& ;ust pu#lish general notice of proposed rulema5ing in /ederal 9egister unless persons su#.ect thereto have actual notice or personally served. $6his is #ig reason for trade associationsTdonMt have to monitor and #y time rule is proposed, have #een tal5ing to those (ith data--the parties already 5no(&. !otice shall include+ 1& time, place and nature of pu#lic rulema5ing )& legal authority on (hich rule is #ased *& termsBsu#stance of proposed rule or a description of issuesBsu#.ects involved. AAAlso, this is little content---notice re8uirements are minimal. ;ost of time there are no pu#lic rulema5ing proceedings, citing legal authority no #ig deal, also can .ust descri#e su#.ects and issues involved--don't have to give the actual te-t proposed. $can .ust say '(e are studying sulfur dio-ide, may issue rule'--this (ould #e ade8uate notice&-this reflects >andis philosophy--.ust facilitate smart agency decision. Agency (ill ma5e rules (B #enefit of outside sources. 6his #ears no resem#lance to modern eraI AA!otice re8uirements do not apply to interpretative rules, general statements of policy, rules of agency organi'ation, procedure or practice or (hen agency has Ggood causeH. $c& 0nterested persons, after notice, shall have opportunity to participate through su#mission of (ritten material (B or (Bout oral presentation. !BA if notice not re8uired. After consideration of the relevant matter presented, must then pu#lish a concise general statement of the rule's #asis and purpose. !ot re8uired to ac5no(ledge receipt of (ritten comments or do anything (ith the (ritten material. AA6his section also #ears no resem#lance to real (orld. 6his is also not a hell of a lot of procedure. "eems more for agencies #enefit than for those regulated+ they get to decide if have oral hearing, don't have to .ustify (hat they are doing, .ust facilitates agency #ehavior, doesn't regulate the agency's #ehavior. AAE?6, (hen rules are Gre8uired #y statute to #e made on the record after opportunity for an agency hearing, D CC3 and D CC2 apply instead. Fuh? 6his is /lorida 9ail(ay. ;ust loo5 to agency's organic statute to determine hearing re8uirement, organic statutes (or5 hand-in-hand (ith APA.
)3

07&

$C&

@@@This minima$is" )roce !ra$ re/!iremen" is ca$$e in#orma$ r!$ema&ing 0a$so ca$$e no"ice4an 4commen" r!$ema&ing2 ? 997: A '! ica"ion -- sets out procedural roadmap for federal agencies engaged in ad.udication. Fas same format as D CC*+ can trigger D CC3-CC2 (hen organic statute re8uires it. Fo(ever, doesn't specify (hat you get (hen statute doesn't trigger. 0nformal ad.udication is even more #are#ones than informal rulema5ing--even more feast or famine. $.ust #ecause statute doesn't re8uire procedures doesn't mean none are re8uired--can #e re8uired #y other statute, organic statute, constitution&. <nly things provided are separation of functions, etc.--very minimal. ;ust notify you that you lost and (hy. ? 99A: Fearings, presiding employees, po(ers and duties, #urden of proof, evidence, record as #asis of decision+ this is language of procedural formality. Applies to hearing re8uired to #e conducted under D CC* or D CC7. ;ust #e presided over #y agency head or mem#ers of commission or administrative la( .udge $@@.@@@R of time is A>=&. Fearings shall #e conducted in impartial manner $implies that under D CC*, don't have to #e impartial, e-pert agencies 5no( (hat they are doing, .ust trying to educate themselves, ma5ing policy--don't (ant impartial&. Presiding officers can do anything you (ould e-pect a .udge to do. $still, no Art 000 .udge, no .ury, not same level of procedural rigor&. Proponent of rule has #urden of proof. <ral or documentary evidence may #e received, #ut agency shall provide for e-clusion of irrelevant, duplicative, etc. evidence+ /ederal 9ules of %vidence D<!'6 APP>K. an #ase on hearsay, etc. Agency could choose to apply /9%, #ut APA doesn't re8uire. Agency must consider (hole record and must decide ia( #e supported #y evidence. %ar"ies are en"i"$e "o gi*e ora$ or oc!men"ar- e*i ence, cross4e1amine ,i"nesses 0e1ce)" "ha" #or r!$ema&ing or ini"ia$ $icences or c$aims #or mone-, ,hen )ar"- no" )re'! ice +-, ma- a o)" )roce !res #or s!+mission o# e*i ence in ,ri""en #orm444agenc- m!s" emons"ra"e )ar"- ,on." +e )re'! ice 44 "his is im)or"an" sen"ence2. $a& Mos" im)or"an" sen"ence in A%A+ transcript of testimony, e-hi#its and papers and re8uests filed constitutes e-clusive record for decision. .ust as in appeal from trial court, m!s" consi er on$- recor . All the rules are there in order to construct the record. 6his re8uirement in APA means that same principle holds here+ there are #o-es of documents memoriali'ing record, decision must #e .ustified #ased on this record. 6his implies that, (here D CC3 doesn't apply, agency doesn't have to decide #ased on record. 6his is (hat statute contemplates---+igges" i## +e",een 996 an 99A r!$ema&ing is ,he"her ecision is +ase on recor .
)2

$#& $3&

$2&

6his procedural pac5age, much more ro#ust than .ust notice-and-comment, loo5s (ithin stri5ing distance of .udicial hearing is called formal rulema5ing. ? 99B: applies (henever D CC3 applies. Agency can ma5e decision itself, if doesn't elect to do this, presiding employee $admin la( .udge&gets to ma5e initial decision (hich #ecomes the decision of agency unless appealed $or unless agency as5s entire record #e certified to it&. 0f agency as5s for (hole record, presiding employee shall first recommend a decision. "tatute also regulates e- parte communications. Jiolation of e- parte rules is sufficient to get your case thro(n out. 6his sho(s get everything $formal rulema5ingBad.udication& or nothing $informal rulema5ingBad.udication&+ sta5es are high to #oth litigants and agency (hether is classified as formal or informal. rulema5ing formal informal CC*, CC3-CC2 CC* - notice and comment ad.udication CC7, CC3-CC2 CC7 - almost nothing

$1& $@& 3.

? 99C: APA is additive to other la(s--does not supplant. What does organic statute have to say in order to interact (ith APA in such a (ay as to re8uire formal proceedings?

Forma$ R!$ema&ing+ loo5s much li5e .udicial trial. APA tells us to loo5 to agency's organic statute, does it re8uire decision to #e made on the record after opportunity for hearing? 0f yes, then formal rulema5ing is re8uired. 1. The Origina$ Un ers"an ing L Dept of =ustice, A:Ms ;anual on the APA. a. /ormal rulema5ing only re8uired (hen the organic statute contains the language that rule must #e made Gon the record.H ). ?nited "tates v. /lorida %ast oast 9ail(ay $1@2*& a. "tatute+ 0nterstate ommerce Act $%sch ar "ervice Act of 1@12& D 1$17& $a&+ originally consisted only of Gcommission may esta#lish reasona#le rulesH a#out car service $rental of cars& including compensation and termsin other (ords, ratema5ing. At time, no APA. When APA esta#lished, ratema5ing is automatically rulema5ing. <rganic statute specifies procedure as Gafter hearingH. 0n 1@33, farm state senators added language last t(o sentences -- order 0 to thin5 a#out ad.usting rental car rates to encourage railroads to return cars 8uic5ly or not #orro( at all. #. Does Gafter hearingH in original language trigger D CC3? When agency #egan hearings in 1@33, seemed to thin5 so $see G?se of /reight ars+ 0ncentive Per Diem harges $1@33&H&$classic rulema5ing, rather than rule adoptionTG(e're .ust going to investigateH, set hearing date per CC*$#&, anticipates cross-e-amination, assigns hearing e-aminer---so agency thin5s Gafter hearingH means Gon the record after opportunity for agency
)1

c.

d.

e.

f.

g.

hearingH&. 0n 1@33, D CC* meant (hat it said, #y 1@31, not true. /or ) years, agency scre(s around, concludes it doesn't have enough data. 0ssues a )nd notice of proposed rulema5ing. 6hen, farm state congressmen scream at agency for not acting 8uic5ly. 0 then adopted the proposed rules, denying all re8uests for oral hearings $invo5ing DCC3d Gescape clauseH can dispense (B oral presentations (hen a Gparty (ill not #e pre.udiced there#yH&. 9atema5ing agencies (anted to ma5e sure that, even (hen setting rates for specific situations, could use D CC3d e-emption --to allo( it to avoid oral hearing. ;ade sure of this #y #oth saying that ratema5ing is rulema5ing, #ut also included the Ggeneral or particularH language. Were the railroads pre.udiced #y not #eing a#le to argue? 99's (on one, lost one. >0 99+ 99 lost, court said not pre.udiced. Eut in /lorida %ast ost 9y, made #etter proof a#out pre.udice, sho(ed ho( cross e-am (ould have #een useful. District court said rail(ays (ere pre.udiced, so (ere denied hearing unla(fully. ?" appealed on #asis that 99's (ere not pre.udiced,$?" (as assuming (e (ere dealing (ith formal rulema5ing&, 0n intervening decision, Alleghany, ourt decided Gafter hearingH did not re8uire formal rulema5ing. When A%A enac"e , e1)ec"a"ion a" "ime ,as "ha" mos" im)or"an" agenc- ac"ion ,o!$ +e a '! ica"ion . 0mportant agencies at time (ere /6 $(hich only had authority to ad.udicate&, !>9E $as matter of practice, only ad.udicated&, 0 , /AA, others $mostly licensing---classed as ad.ud&, enforcement--ad.ud. Where did rulema5ing come in? ratema5ing and "ecurities and %-change ommission. "ta5es (eren't as high in rulema5ing (orld. 0n late C4s and later, universe of ad la( shifted for ad.ud to one (here rulema5ing at least on par (ith ad.udication. 6he flight to rulema5ing+ $a& /or agencies that e-isted in 34sB24s+ statutes didn't change, #ut economy gro(ing rapidly, agencies no( had more authority (ithout change in statute, more transactions. When agency has a lot to do, can s(eep in more people #y rulema5ing than #y ad.udication. $#& !e( agencies+ !F6"A-1@33, %PAB<"FA--1@24, $old agencies had large authority over small segment of economy& ne( agencies had large authority over entire economy--cross-industry, crosssector responsi#ilities--8ualitatively different 5ind of authority. $While !>9E and /6 had #road authority #efore this, /6 only had po(er to ad.udicate till mid-24s and !>9E .ust ad.udicated&. $c& 0n Allegheny, (ithout #riefing or argument, court interpreted Gafter hearingH in %sch ar Act not to re8uire formal hearing. $d& Pro#lem (ith /% 9+ although case says you don't need magic (ords to get formal rulema5ing, this is e-tremely strong case for formal rulema5ing. !o one had dreamed that you could have a ratema5ing that (as not a formal rulema5ing. 0 ratema5ing (as al(ays 5no(n as formal rulema5ing. !otices put out #y 0 $a#ove& assumed they (ere using formal rulema5ing. 0f ever there
)@

*.

(as a case for formal rulema5ing - this (as it. h. Why case important? ;ust use magic (ords. Although court said donMt need magic (ords, that is e-actly (hat #ecame focus of analysis. !o cases post /% 9 (here organic statute didn't use magic (ords interpreted to re8uire formal rulema5ing. A#"erma"h o# FERC a. ;ust use magic (ords. #. 9e8uired formal rulema5ing relegated to e-tremely limited circumstances $food and drug la(&. "till see formal rulema5ing, #ut not re8uired #y APA. c. At same time agencies (ere under pressure to do rulema5ing, (ent to informal rulema5ing $(ould have shoc5ed those in 1@73 (ho dealt (ith APA&. d. <ther issue in /% 9+ after deciding that Gafter hearingH doesn't trigger formal rulema5ing, (hat happened pre-1@73? Gafter hearingH carried (eight #ac5 then, meant a real trial-type hearing, it (as a model for (hat (as recorded in D CC3-CC2. APA not supposed to displace e-isting re8uirements, is cumulative. "o, even if railroads lose on APA grounds, should still have right to cross e-amine (itnesses--(as traditional pre1@73. Why did they lose? ourt said that 1@33 revision. 9ead 1@33 understanding #ac5 into 1@12 la(. 6his not a fortiori case post /% 9. Can s"i$$ ha*e an organic s"a"!"e "ha", ,hi$e oesn." "rigger A%A #orma$ r!$ema&ing re/!iremen"s, s"i$$ re/!ires some #orma$i"- on i"s o,n. Loo& "o $egis$a"i*e his"or- ,hen "r-ing "o )ro*e "his. e. ongress no( doesn't say Ghearing on the recordH, does something in#et(een. !ot trigger formal re8uirements of APA, #ut statute may specifically re8uire cross e-amination, etc. 6echnical name+ hy#rid rulema5ing---falls #et(een formal and informal rulema5ing. f 0ssue has never #een revisited. !ever #een argued #efore ourt again. 0nformal rulema5ing no( calls for more procedures than .ust #are minimum in APA, so less pressure to overturnBhave formal rulema5ing. g. Due process+ $1& ?nder >ondoner and Ei-;etallic, (hen agencies are rulema5ing, due process is satisfied. $)& E?6, ,ha" is r!$ema&ing #or )!r)oses o# A%A is no" necessari$- r!$ema&ing #or )!r)oses o# cons"i"!"ion . $*& Douglas' dissent in /% 9 has tones of due process. $7& ourts must underta5e o(n in8uiry into (hether action in 8uestion is constitutionally rulema5ing or ad.udication. ongress free to ma5e o(n definition for APA purposes. $C& "ince GparticularH is dominant element in constitutional analysis, specific ratema5ing could #e ad.udication. Fo(ever, in this case $/% 9& it (as general $/% 9 (as even arguing that it (as too general---hard to argue that it (as so particular as to #e ad.udication&. onstitutional argument (as therefore a loser in this case on these particular facts.

C.

Forma$ A '! ica"ion.

*4

1.

5.

"eacoast Anti-Pollution >eague v. ostle $1st ir. 1@21& a. <rganic statute+ /ederal Water Pollution ontrol Act. "pecifies procedures for agency to follo(. Feat as pollutant. %PA specified criteria for dumping of pollutants. !o one here (orried a#out su#stance or procedural rules. "ea#roo5 doesn't meet effluent limit for heat, statute says can as5 for e-emption from rule provided can sho( there is no harm. 0s clearly ad.udication here either (ay--constitutionally=very particular, per APA, licensing is ad.udication. $1& Fearings here had something of the record, if re8uired to #e per D CC3-CC2, (ould #e invalid. $)& <rganic statute says can get e-emption Gafter opportunity for pu#lic hearingH $a& 0f this (ere a rulema5ing case, (ould only re8uire informal rulema5ing per /% 9. $no Gon the recordH&. $#& /irst ircuit says that, in ad.udication, this is enough to trigger formal ad.udication. "ays this is e-actly the type of situation (here formal hearings (ould #e helpful, (hat APA (ould (ant formal hearing for. $c& Presumption+ in ad.udication, if organic statute mentions GhearingH, presume it triggers formal ad.udicatory hearings under APA, can #e overcome #y purposes of statute $e.g. policy ma5ing rather than specific facts&, legis. history, etc. $d& 0s reverse of /% 9+ creates po(erful presumption of formality for ad.udication. $e& !inth ircuit has signed on to this interpretation. $*& One )ossi+$e reso$!"ion: Eecause trial-type procedures are much more important in an ad.udication sense, any time an organic statute mentions a hearing, it (ill #e construed as meaning formal ad.udication. Secon )ossi+$e ans,er: ity of West hicago v. !9 $2th ir 1@1*& a. Eefore the court gets to (hether formal proceedings have #een triggered, there is another issue+ $1& Whether !9 violated its o(n regulations on procedural. $)& ourt pro#a#ly gets this right. Eut (hat is more important is that the argument (as made in the first place+ agencies often promulgate rules to govern their o(n decision-ma5ing process. As long as those rules are out there, they have the same effect on the agency as they (ould on any#ody else...i.e. they are #ound. Kou can have a situation (here the only procedural re8uirements come from the agency's o(n rules $even though the constitution, APA and organic statute are silent& $*& 0f an agency has promulgated a procedural rule #y itself, ho( often does it forget to follo( its o(n rule? All the time. 6his is a really good place to challenge the agency. 6his case is partially to illustrate another mode of trying to get procedural guarantees from an agency. #. <O, so the city tries the agency's internal procedures and fails, #ut the
*1

7.

organic statute says GhearingH...this is licensing, so it is ad.udication....if "eacoast governed, this (ould #e a slam dun5 formal ad.udication. Eut 2th ircuit doesn't see it that (ay. c. "eacoast (as (illing to presume that if the (ord GhearingH sho(s up, then formal ad.udication follo(s. 6his case is e-act opposite. 6he presumption is for informal proceedings unless ong Gclearly indicates its intent to trigger the formal, on-the-record hearing provisions of the APA. d. The )res!m)"ion, "h!s, is in#orma$i"- !n$ess "he magic ,or s Don "he recor E a))ear. I" is a )re""- s"rong )res!m)"ion, +!" no" as s"rong as ,i"h r!$ema&ing. e. Possi#le sources of procedures the+ $1& <rganic statute triggers APA $)& <rganic statute itself re8uires procedures $*& onstitution $7& Agency's o(n 9egulations $C& !ational %nvironmental Policy Act $a& ity tries this. 6his is not the organic statute. Eut it crosscuts a lot of agencies, proscri#es procedures that some agencies have to follo( $i.e. an %nviron. 0mpact "tatement& $#& "ome of these statutes impose procedural re8uirements on agencies, li5e %0". 6his is 9egulatory /le-i#ility Act "tuff. 6. Thir a))roach "o ,ha" "riggers #orma$ a '! ica"ion: hemical Waste ;anagement of !orth America v. ?.". %.P.A. $D. . ir. 1@1@& a. Prior to 1@1@, the ans(er (as Gall of the a#oveH. 6here (as one line that agreed (ith 1st ircuit, $presumed formal&, and another line of cases (hich agreed (ith 2th ircuit $presumed informal&. 6his case resolved as ans(er as Gnone of the a#ove.H #. Eac5ground+ hevron Doctrine+ (hen an agency is interpreting a statute, the court is to give deference to that interpretation, even if the court thin5s that interpretation is (rong, unless the decision is really really (rong. c. Where you have language in an organic statute that does not appear to resolve the matter one (ay or another $i.e. it calls for a GhearingH or a Gpu#lic hearingH&, the agency can decide unless that decision is really (rong. So, "hree i##eren" )res!m)"ions: a. /ormality f. 0nformality g. Agency decides unless really (ring. @@ Th!s ,ha" -o! ge" e)en s *er- m!ch on ,here -o! are. Ven!e can +e cri"ica$.

D.

In#orma$ R!$ema&ing 8. In"ro !c"ion: 6o get formal rulema5ing, re8uires magic (ords of Gonthe-recordH. What a#out 0nformal rulema5ing? What do you get? !ot much--notice and comment. Where do you loo5 #eyond that? a. 6hree re8uirements for informal+ $1& !otice of Proposed 9ulema5ing
*)

#.

c. d.

e.

f.

A hearing if the agency (ants it "tatement of #asis and purpose+ A statement of the reason (hy they are doing (hat they are doing 6imeline $1& 1@73+ APA passed, >andis Gdisinterested agencyH approach. Agencies good, la(yers and .udges #ad. $)& 1@C3+ "tore v. / + <O for agency to promulgate regs to deal (ith issues that (ill come up in ad.udication $i.e. ho( many radio stations does this guy o(n?& 6his rule resolves an issue glo#ally. 6his sounds .ust li5e rulema5ing. Why is at the " level? 0t sho(s the importance of the ad.udicatory model of agency #ehavior. $*& 1@34+ apture theory ta5es over $!oll&. Agencies are captured #y special interest groups. Agencies #ad, la(yers and .udges good. /light to rulema5ing 5ic5s in. $7& 1@33+ !F6"A formed. $C& 1@32+ Permian Easin Area 9ate ases+ When agencies are charged (ith setting rates, there are some fairly (ell settled principles that should #e follo(ed...i.e. those that are having their rates set must #e given a fair return on investment. What does this mean? W96 (ell-heads in an oil field, then that (ould mean an individual calculation for each (ell head. 6hat (ould #e impossi#le or prohi#itive. "o agency assumes that every#ody's cost of production are pretty much the same. "o (e can say for the entire region (hat the cost structure is identical, thus necessitating the same rate of return for every#ody $unless you can sho( other(ise&. 6his (as a fairly large departure (hich " upheld. $3& 1@24+ <"FA and %PA formed. $2& 1@21+ Jermont Kan5ee 6hus during 34's, pressures are forcing agencies to gra# more authority (ith fe(er procedural constraints (hile at the same time, people are #ecoming more (ary of agencies in general due to capture theory. 0n early 24's, the notice of proposed rulema5ing procedures #ecome drastically more strict due to casela( from D circuit. Ey the time D circuit (as through in 1@21, things loo5ed much different. $1& Agency cannot .ust e-plain something #ut must put up in e-cruciating detail (hy they are thin5ing a#out something. $)& "ame thing (ith "<EP+ ?sed to #e couple of paragraphs (ould suffice. !o more. ourt re8uiring (as an ela#orate e-planation and .ustification for its action. 0ncreasing .udiciali'ation of this process. What a#out comment period? omment process+ courts said that .ust allo(ing people to su#mit pieces of paper (asn't enough. 6he minimal (ritten comment stuff isn't enough. !eed more+ ross-e-amination or discovery or other procedural guarantees. Ey 1@21, " #elieved that the informal rulema5ing procedures (ere there in part to provide fair treatment for those persons affected #y a rule. 6his (as a far cry from (hat the drafters of the APA though informal rulema5ing (as for.
**

$)& $*&

).

"ee >a(son article. 6he informal rulema5ing procedure (as made pretty formal #y the courts The Rise, Fa$$ an Rise o# (-+ri R!$ema&ing+ a. APA sets forth only minimal re8uirements for informal rulema5ing. !otice doesn't have to say much--statement of #asis and purpose, etc. #. Ey 1@31, things have changed+ $i& hanging theory of agency #ehavior, capture theory, agencies #ad $ii& 9ise of informal rulema5ing (here used to use ad.udication. $iii& D. . ir. po(erful #loc5 of .udges+ su#stantively pro-regulation and agency #ut did not share >andisB%astman vision of trusting agencies to do (hat they (anted. Warren ourt .udicial activism (as reaching pea5, activism accepted. ourts reassessed perceived relationship #et(een courts and agencies $>andis had said courts stay out of (ay - minimal, deferential role for courts&. $iv& ourt as5ing -- "u#stantively+ did agencies ma5e right decisions. Procedurally+ did they get to ans(er the right (ay. $v& Pro#lem+ (B APA there is not much to revie( (B informal rulema5ing. 0f court (anted to do (hat it (anted to do, it needed more paperBdocs to #e generated #y informal rulema5ing. c. Fy#rid 9ulema5ing 0n order to accomplish this, from '31 to '21, up to Jermont Kan5ee, D ir and lo(er courts transformed informal rulema5ing at all three stages. :rafted procedural re8uirements onto D CC* #ut stopping short of formal rulema5ing. $i& !otice of proposed rulema5ing+ must disclose analysis, studies, theories relied on, supporting docs, etc. $ii& "tatement of #asis and purpose no longer ade8uate, must respond to comments, e-plain (hat agency did and (hy. $iii& onduct of rulema5ing itself+ ourt said must (hen necessary use procedures such as crosse-am, discovery, etc. d. Where (as "upreme ourt? !ot once '31-'21 did court revie( D ir opinion on one of these issues of procedure. Why did it ta5e ten years? Ad la( #oring, Ea'elon, >eventhal, Wright, ;c:o(en--generated this la(, very smart, (rote opinions to immuni'e them from certiorari revie( #y use of alternate holdings or dicta. "ay, Gon facts of this case, notice is ade8uate #ut ne-t time must #e #etterH--dicta or alternate holdings = Gfind technical fla(, also must do all these other thingsH--court (on't ta5e #ecause issue not cleanly presented. e. The S!)reme Co!r" S)ea&s: Jermont Kan5ee !uclear Po(er orp. v. !9D $1@21&+ scolding tone #ecause mad at Ea'elon. $i& ase is a#out licensing of reactors $licensing = ad.udication&. "tatute re8uires !9 to license at t(o stages+ construction permit to #uild, then second distinct license to operate. !%PA re8uires !9 to consider enviro effects at #oth stages. !9 loo5ed at nuclear fuel cycle. 0n first Jermont Kan5ee ad.udication, original position of !9 (as that it (ould consider effects of transporting fuel #ut not at any other stage #ecause ris5s (ere insignificant-made this distinction in course of a licensing, #ut (as clear that it
*7

e.

(as meant to have #road policy effect---ruleli5e conse8uences $agencies are free to do this through ad.udication unless specifically prohi#ited #y congress&. $ii& 6hen decided to re-consider issue in a rulema5ing, loo5 at in #roader sense. ould decide to forego altogether #ecause ris5 lo( or to figure environmental cost as generic num#er for all plants #ecause it (as so small--.ust plug in to each case. $iii& 6his rulema5ing (as clearly informal, #ut used more procedures than APA specified----oral statement, transcript, representation #y counsel, #ut did not provide for cross-e-amination or discovery. $iv& Agency conclusion that ris5 (as lo( (as #ased on )4 page completely conclusory paper #y Dr. Pittman $don't (orry, #e happy study&. "o, there is argument that, on su#stantive ground, could overturn agency decision $this (as alternative holding #y D ir&. Parties (anted cross-e-amination and discovery--to determine (hat he #ased study on, (hat agency 5ne(, etc. 9e8uest for cross e-am and discovery, denied, appealed. $v& "upreme ourt "%%;" to come up (ith po(erful holding+ unanimous re.ection of (hat D ir had #een doing for a decade. ourt ac5no(ledges that sometimes an APA rulema5ing can #e a constitutional ad.udication and need more procedures, also there is a (ea5 re8uirement of consistency in agency procedures. $vi& Eut says, a#sent these circumstances $constitutional or statutory re8uirements for more procedures&, agencies are free to fashion o(n rules of procedure. As clear a supreme court opinion as ever (ritten---D ir (rong in its vie( of rulema5ing as Geveryone gets to hold agency accounta#le and have inputH---participatory rulema5ing. $vii& 6hus, courts cannot re8uire agencies to use specific procedures during a rulema5ing procedure simply #ecause the courts consider them a good idea. So The- S)o&e, Di An-one Lis"en< $i& onnecticut >ight and Po(er o. v. !9 $D. . ir. 1@1)& 9e8uires agency to e-plain its rationale for rule. "ho(s D ir's conception of participatory rulema5ing -- .ust li5e Wright's pre-J6 Kan5ee opinions. $a& 6he process of notice and comment is not to #e a charade must give parties a chance to participate in a meaningful (ay in the discussion and final formulation of the rules. $#& t concerned in this case that agency .ust #arely provided enough procedures for participation. $c& While agency need not .ustify its decisions in every detail, must e-plain the general #asis for the rules chosen. $d& 6otally ignores Jermont Kan5ee. $ii& Auto Eumper "afety "tandards+ (hether to have ).C or C mph standard+ $a& !otice of Proposed 9ulema5ing+ $1@11& gives rationale for
*C

$iii&

$iv&

$v& $vi&

rule, ten formulations of rule. %-actly form of notice that pre-JK D ir (ould re8uire. $#& "tatement of Easis and Purpose $1@1)& after rule adopted--incorporates in e-planation a )C3 page final regulatory impact analysis--same technical detailed ela#orate e-planation that D ir re8uired. A;A v. 9eno $D. . ir. 1@@C&+ rules impose Gsignificant dutyH on agency. ;ust include sufficient detail to allo( for meaningful comment, pu#lish data. 0n adopting final rule, must articulate its reasons for decision and identify significance of the crucial facts. Where did Jermont Kan5ee go? ould read Jermont Kan5ee+ read the te-t of the APA. Eut, can also read it as different level of generality+ in !9 rulema5ings, don't re8uire cross-e-am or discovery - very narro(. <r, in any informal rulema5ing don't lightly impose cross-e-am or discovery--also very narro( reading, #ut this is the one (hich survived. %verything that D did '31 to '21 has survived and flourished regarding+ $1& notice of proposed rulema5ing and $)& statement of #asis and purpose. 6he only change post-J6 Kan5ee that stuc5+ in ac"!a$ con !c" o# r!$ema&ing i"se$#, co!r"s ma- no $onger re/!ire e1"ra )roce !res no" )ro*i e +- o"her so!rce o# $a,--so te-t of APA D CC* controls. $a& Why did this reading prevail? ;ost agency decisions go directly to court of appeals, #ypass district court, no chance to #uild record at trial. APA doesn't re8uire record for informal rulema5ing--.ust a one page notice of proposed rulema5ing and a one page #asis and purpose---(ith this, court could only ru##er-stamp agency decision. 6o engage in su#stantive revie( of agency rulema5ing, must force agencies to give courts info on ma5ing decision. D90J%! EK <?96'" "?E"6A!60J% 9%J0%W </ A:%! K D% 0"0<!". 9e8uiring procedures as means to the end of su#stantive revie(, not .ust re8uiring the procedures for their o(n sa5e.

g..

Mo ern no"ice o# )ro)ose r!$ema&ing $i& ;ust include+ (hat agency is thin5ing a#out, any data, analysis-process is vie(ed as a chec5 on the agency, so must put its thin5ing out there to #e shot at. $ii& onse8uence of this+ in#orma$ r!$ema&ing )roce !res are no" r!$ema&ing )roce !res, "he- are r!$e a o)"ion )roce !res. <riginal conception (as to start (ith vague idea, use process to inform themselves, facilitate its technical apolitical e-pert discretion. !o( that agency must #e much more specific a#out (hat it is doing, it might .ust as (ell include an actual proposed rule $or alternative rules&. !o official rule of la( that this is
*3

h..

i.

re8uired, #ut (on't find one (ithout proposed rule. "tart (B a rule instead of Gfinding a ruleH so people can chec5 it. $iii& hallenges to an agencyMs notice of proposed rulema5ing+ ?nder 1@73 rule, tough for notice to #e inade8uate+ (ould have to fail to mention dates of hearings or fail to give at least an idea of (hat is (hat tal5ing a#out, #ut this (ould #e difficult to fuc5 up. /inal rule (ould still have to #ear some resem#lance to (hat it said it (as tal5ing a#out. 6oday it is easy to challenge agencyMs notice of proposed rulema5ing. $a& AgencyMs notice failed to disclose all relevant data that animated its thin5ing. $#& AgencyMs final rule concerns a su#.ect that (as not ade8uately flagged #y the notice. ; 0 v. / $notice of su#.ect in footnote not ade8uate notice&. $c& /inal rule doesn't match up (ith proposed rule. an say Gagency (as loo5ing at U).C4 a day, no( is U*.44 a day, this is not same proposal, (ould have commented differently, should have gone #ac5 to s8uare one.H 0f agency adopts something different than (hat (as noticed, it is ne( rule and should have #een noticed. 6a5en to e-treme, this (ould disincentivi'e any agency from ma5ing any changes. In )rac"ice, m!s" eci e ,he"her re*ise r!$e is s!+s"an"ia$ change #rom origina$ )ro)osa$. Agencies include numerous variations of rule in notice so that, if choose any of them, can say it has #een noticed. 1& onnecticut >ight P Po(er $1@1)& still stands on this point. !o clearly accepted guidelines. G>ogical outgro(th testH is not a test, it is a conclusion. Mo ern S"a"emen" o# 3asis an %!r)ose $i& ontains .ustification for agencyMs rule. When courts revie( the su#stantive ade8uacy of a rule, (ill not loo5 #eyond "<EP. $ii& 6hus, "<EP is often monstrously long and comple- detailed e-position of agencyMs reasoning and agencyMs response to vie(s e-pressed #y commentators during the rulema5ing. $iii& 0f "<EP is procedurally inade8uate, really means that agency failed to e-plain its decision - a su#stantive V. $iv& <ne issue that is procedural is that the "<EP must respond in a reasoned manner to every comment that raises significant pro#lems. E1em)"ions #rom No"ice an Commen"+ D CC*+ (here APA says that 'ero procedure is re8uired. 6(o types+ first, some are e-empted #Bc of their su#.ect matter $military, foreign affairs, internal govt management, etc.& "econd, some e-empted #Bc of their character $interpretative rules, general statements of policy, etc.&. "ignificance+ #Bc ne( re8uirements placed on informal rulema5ing, parties trying to get out of complying, spending resources on procedures. $i& R!$es o# agenc- )rac"ice an )roce !re 0D)roce !ra$ r!$esE2: $a& Paradigm of procedural rule is one (hich deals (ith internal
*2

$ii&

agency organi'ation+ chain of command, ho( to order office supplies. $#& What a#out rules of evidence for appeals of agency decisions+ presumptions on evidentiary matters? start to loo5 li5e affecting rights of individuals--are a#out procedure #ut have profound impact on actual course of agency proceedings. 6his distinction $of su#stantive v. procedural rules& meant little (hen APA re8uired little notice, no( that there are #ig sta5es to rulema5ing, has #ecome more important. Eut it is very difficult to distinguish su#stantive v. procedural rules. $c& =%; Eroadcasting v. / $D. . ir. 1@@7&+ effort to figure out (hether something is procedural or su#stantive. Procedural rule e-ception often formulated as covering agency actions that Gdo not themselves alter the rights or interests of the parties, although it may alter the manner in (hich the parties present themselvesBvie(points to agency.H "u#stantive effects are so grave that notice and comment needed to safeguard interests. 1& / Ms hard loo5 rules - re.ect license application if missing info. / says procedural. =%; says su#stantive. )& t. says procedural. 9e.ects reasoning that this procedural rule encodes su#stantive value .udgments #Bc then (ould consume all procedural rules $some may -narro(& *& Agency must have some discretion re+ house5eeping rules for (hat processesBmechanics are most efficient. In"er)re"a"i*e r!$es an genera$ s"a"emen"s o# )o$ic-+ lots of cases on this point. 6his e-emption is a drafting error. Any rule could #e phrased as an interpretative rule---any rule must #e an interpretative #ecause it must #e #ased on organic statute. Would destroy entire procedural structure of statute. "o, have interpreted GinterpretativeH to mean something else. Fo( to distinguish interpretative rules from su#stantive rule+ $a& DLega$ e##ec"sE test+ initially used after passage of APA. Wor5ed )4W years. A su#stantive rule (or5s li5e a statute L if violate, may #e su#.ect to prosecution. "u#stantive rule creates a #inding norm on regulated parties. 0nterpretative rule does not L guidance, policy #ut if donMt follo( donMt #rea5 the la(. 1& Eut easy to craft rule (hich is interpretative, say G(e don't mean this to #e legally #inding.H Parties (ill follo( rule any(ay for fear of it #eing #inding. 0n practice has effect of #inding rule. !o one (ants to ta5e chance of violating. )& 0nitially this didn't matter much #ecause sta5es (ere
*1

$#&

$c&

$d&

lo(. Post-1@31 states are high. Eut same courts (hich e-panded procedural re8uirements of D CC* (ouldn't allo( agencies to use legal effects test to get around notice and comment procedures. ourts revised legal effects test to Ds!+s"an"ia$ im)ac"E "es" F8. !ot concerned a#out form of rule. As5 (hether person regulated #y agency under this rule #e li5ely to change their #ehavior--(ill rule have su#stantial impact on #ehavior of parties. 0f yes, is su#stantiveBlegislative rule, so must follo( procedures per D CC*. 6his (as in mid-1@24s. 6his supplemented legal effects+ anything that meets legal effects test is still su#stantive, .ust adds other things to this. 6hen, Jermont Kan5ee - seems to have invalidated su#stantial impact test. G>oo5 to te-t of APAH. 9eplaced su#stantial impact test (ith Gs!+s"an"ia$ im)ac" "es" F5H. Jery different. Won't go #ac5 to legal effects test--gives too #ig a loophole to agency. 0nstead as5 (hether rule is in form non-#inding, #ut in practice is #inding. >oo5 at rule's impact on A:%! K instead of impact on the regulated. 1& ?" 6elephone AssMn v. / - =ET NOTES. Penalty schedule is not a policy statement, should have notice-comment procedure. "chedule is too e-haustive, specific to #e policy. Plus, schedule had #een employed in over *44 cases and agency decided according to it in )@@ out of *44 cases. ourt decided this violated su#stantial impact test----(as su#stantially impacting the (ay agency e-ercised discretion. )& Professionals and Patients v. "halala - =ET NOTES. /DA policy sets out @ factors it (ill consider #ut not e-haustive to decide (hether to start enforcement action against pharmacies for compounding drugs in violation of la(. t says not a su#stantive rule, no notice and comment re8Md. /actors not #inding norms #ut guidance. /actors not e-haustive, donMt limit /DAMs discretion. *& =udge Williams $former ad la( prof& in American ;ining+ he 5no(s there is this pro#lem (ith su#stantial impact test. Fo!r"h )ossi+$e "es"44no" c$ear i" is se)ara"e. American ;ining v. ;"FA $D. ir. 1@@*& =ET NOTES =udge Williams trying to revolutioni'e la( of interpretative rules, didn't (or5. >oo5 to organic statute. "ome statutes prohi#it things on o(n, others give agency authori'ation #ut don't prohi#it directly $li5e securities la(s&. "ome do #oth. Williams (ould say rule is interpretative if+ 1& it is tied to something already prohi#ited in
*@

0iii2

statute---(here rule is tied to prohi#ition in statute. )& 0f this is true, presumptively interpretative unless+ a& pu#lished in fed regulations, #& agency has invo5ed as su#stantive, c& (hether rule effectively amends prior interpretative rule. an identify (hen rule is (ritten, don't have to (ait. d& Pro#lem in Williams (ay+ lots of D ir cases using su#s impact test---* .udge panel can't overturn. "o, he says that the old cases deal (ith Ggeneral statement of policyH cases rather than interpretative rule. 6his is lie--no one ever thought there (as a difference. !o one (illing to dra( this distinction. *& Eottom line+ s!+s"an"ia$ im)ac" on "he agenc- "es" is s"i$$ go*erning $a,, +!" American Mining is s"i$$ o!" "here an someone ma- ra, !)on i". E1ce)"ion #or Dgoo ca!seE in ? 996 0+2 $a& APA doesn't say ho( long agency must give for comment. "tandard is *4 days. /or good cause, can get relief from proceedings if it finds that Gnotice and pu#lic procedure thereon are impractica#le, unnecc, or contrary to the pu#lic interest. Designed primarily for emergency situation-national crisis, etc. $#& ourts don't ru##er-stamp good cause. Jery sparingly applied. Agencies often try #ut lose. 1& 6ennessee :as Pipeline o. v. /%9 $D. . ir. 1@@)& !o good cause here. 9e.ects agencyMs arg that only an interim rule - doesnMt matter that of limited effect - then all agency decisions (ould #ecome interim. 9e.ects arg that need to prevent environ damage might result from rule L too speculative.

E.

In#orma$ A '! ica"ion: Does no"hing mean no"hing ? 1. In"ro 44 APA provides no structure at all for informal ad.udication. 0f not formal, APA has nothing to say a#out it. onst may, organic statute may, agency procedure may. Fo(ever, as in informal rulema5ing, courts have added to APA $due to s5epticism a#out agencies and #ecause of need for record in order to do su#stantive revie(&. Eut, not as much here to (or5 (ith as in informal rulema5ing---no hoo5 in APA at all to #uild on. ). iti'ens to Preserve <verton Par5 v. Jolpe $1@21&--leading case on su#.ect. D ir's revolution is under(ay post 1@31. 6his case D ir a shot in the arm--(as #y far the most cited " t decision in history. ited #ecause no#ody 5no(s (hat it means, so people can cite it for anything. "tatute a#out release of high(ays funds if par5land (ildlife area unless there is no reasona#le alternative and have made every effort to protect (ildlife.
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7.

6his is ad.udication---individual decisions #y "ecretary a#out (hat funds to release--particularly. "tatute imposes procedures only to consult generally (ith states and ca#inet, #ut for individual decisions, no procedures. "o, for APA, don't have to get into * (ay circuit split --not tal5ing a#out am#iguous Gafter hearingH language to find formalBinformal. !o other regulations out there providing procedures, neither does constitution. "o, no positive la( re8uiring any procedures, secretary only had to follo( legal su#stantive standard. $#& "ecretary releases funds for high(ay in 6ennessee. "ued that he had not made formal findings $(hich aren't re8uired in informal ad.ud& and also argued su#stance $other feasi#le plans, effects not minimi'ed&. $c& "up ct said no formal findings re8uired #ut .ust su#mitting affidavit from secretary is insufficient--essentially ar#itrary and capricious. 6his (as in APA as really high standard---only overturn really ridiculous. Ey 1@31, ar#itraryBcapriciousBa#use of discretion much lo(er standard. $d& 0n opinion, court (hips #ac5 and forth on standard of su#stantive revie(+ su#stantial in8uiry #ut presumption of regularity #ut thorough pro#ing, indepth #ut clear error #ut searching and careful #ut narro( standard and don't su#stitute court's .udgment for agency's. $e& Eottom line+ to do searching revie(, must have some info. 6hough no procedural re8uirement, must 5no( a#out secretary's decision. "ecretary can either than ma5e the formal findings $(hich they .ust said aren't re8uired& or #e deposed. "o, can't have su#stantive revie( (ithout paper, informal ad.ud doesn't re8uire paper, #ut court assumes there is an administrative record. 6here may #e documents out there #ut there is no real GrecordH Ey re8uiring e-amination of Gthe recordH in informal ad.ud, court forces agencies to use procedures in informal proceedings so that they can create a record and avoid depositions. $f& "o court said you don't have to do anything in particular, #ut if you don't, can get stuc5 in depositions, practical conse8uence is creation of a record. "even years later, Jermont Kan5ee. 6ension here #et(een <verton Par5 (hich seems to point to(ard procedural re8uirements in informal ad.udication not specified in APA and J6K (hich says cts canMt tell agencies (hat additional procedures to use. "ome decisions distinguish JK as only for rulema5ing, #ut #y and large courts said JK applied to informal ad.udication too, so courts can't re8uire specific procedures. Pension Eenefit :uaranty orp. v. >6J $1@@4&+ $a& While ad.udications don't have the structured phases of rulema5ing #ut do have a #eginning, middle and end. ourts reconciled JK and <verton Par5 thus+ JK says appellate courts can't re8uire agencies to use particular procedures $li5e discovery, cross, etc.& #ut can re8uire procedures in more general sense---putting together administrative record. $#& ?nder >6JB<verton Par5 compromise, courts say agencies must #uild record, to do this must use procedures, (on't tell (hich procedures to use to get record. an do through hearings, discovery, etc. We don't care ho(. $c& Co!r" canno" re/!ire s)eci#ic se" o# )roce !res 0V>2 +!" i" is o& "o as&
71

#or genera$ "hingsG)roce !res "o ma&e a recor 0O*er"on %ar&2 F. The Choice 3e",een R!$ema&ing an A '! ica"ion 8. The Chener- Saga: pre-APA #ut is still mostly good la(. ;ust loo5 to organic statute. Provisions of Pu#lic ?tility Folding ompany Act+ !e( Deal act. Depression (as partially #lamed on holding companies, (ith a fe( people having great po(er. P?F A ordered companies to reorgani'e, come up (ith simple o(nership scheme. ".%. . must approve these plans. Process #y (hich commission passes on plan is clearly ad.udication+ specific, particulari'ed, after notice and opportunity for hearing, no one is complaining a#out procedure given. 0f plan is fair and e8uita#le to persons su#.ected to plan, then approve. Eut, commission authori'ed to promulgate rules and regulations. "o, under statute, commission has authority to #oth ma5e rules and ad.udicate, any single decision must #e ad.udication #ut can structure #y rulema5ing. a. /acts+ /ederal Water "ervices orporation --series of holding companies. At start, there are * 5inds of stoc5+ preferred, A and E. $preferred first in line for distri#ution, A is common stoc5, E is form of common stoc5 #ut controlled voting po(er over corporation&. E stoc5 controlled #y .6. henery and henery :roup. ".%. . (ouldn't approve any plan (here E stoc5holders had o(nership sta5e in ne( company. Also made clear @CR of ne( company (ould #elong to preferred stoc5holders+ o(ed for dividends not paid during depression. "o, henery (ent out and #ought lots of preferred stoc5+ not #eing secretive, not using insider info, encouraged its employees to #uy preferred stoc5 too. ".%. approves plan for @CR of company to go to preferred stoc5holders, CR to lass A, one e-ception+ none of ne( company goes to henery preferred stoc5holders-get cost plus 7R. henery sues. Fo( had commission .ustified 5eeping henery out? 9ationale+ henery group (ere management group, engaged in negotiations (ith ".%. ., not alleging fraud, #ut (e have read court decisions to esta#lish as rule of la( that it is unla(ful for mgmt groups doing reorgani'ations to participate in ne( company. #. ".%. . v. henery orp. $1@7*&+ $i& /irst holding+ "up t said commission misread cases--rationale advanced #y commission isn't supported #y case la(. $ii& :enerally, can as5 an appeals court to affirm on any ground, not .ust rationale of lo(er court+ lo(er court ma5es .udgments, can argue .udgment (as right #ut rationale (rong. Eut, this doesn't (or5 in administrative la(. $iii& The Chener- I )rinci)$e: agency decisions, unli5e court decisions, can only #e upheld on appeal on the ground advanced #y the agency. <nce an agency announces grounds for a decision, it must stic5 (ith those grounds. an't have Gpost hoc rationali'ation of counselH. $iv& 6his principle so #asic is has spa(ned corollaries+ $a& orollary 1+ C$ari"- re/!iremen" im)$ici" in henery principle+ an't uphold agency if don't 5no( (hat grounds are. ourt has to 5no( (hat agency's grounds are. 6his
7)

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d. e.

principle predated henery. $#& ourts are very good at finding clarity (here there isn't any, so on." "a&e )rinci)$e 8 "oo serio!s$---courts (ill read #et(een lines. $c& orollary )+ Agenc- m!s" e1)ress "he ra"iona$e, no" "he agenc-.s $a,-ers. Decisional authority is entrusted to agency, not its la(yers. an't come from appellate court. $d& orollary *+ Eecause agency must come up (ith rationale, can give agency another chance. Us!a$ reme - isn." "o re*erse agenc-H i" is !s!a$$- a reman "o agenc- "o "ragain. "upreme court did this in henery 0. Agency said it (as e-pert as a rationale. ourt said this hasn't #een advanced, go #ac5 and thin5 a#out it again. an come #ac5 and try (ith ne( rationale. $limits to ho( many chances sho(n later in courts& $v& ourt re.ected ".%. .'s rationale, remands to agency. ourt noted that ommission had not e-ercised its authori'ed po(er to promulgate rules and regulations. "trong message to "% + if feel strongly a#out issue of management trading up stoc5 during reorgani'ation, then issue a rule L you have authority to do this. 0n re /ederal Water "ervice orp. $1@7C&+ "% 's decision on remand+ commission doesn't (ant to promulgate a rule. Also not going to decide this ad.udication to create standard for the future. 9e.ects henery Plan again #asically for same reasons - does not ma5e a rule. henery orp. v. ".%. . $D. . ir. 1@73& ourt says+ Faven't identified pree-isting rule of la( = shot do(n again. ".%. . v. henery orp. $1@72& henery 00+ change in composition of "upreme court. "% (ins. henery could argue+ G/air and e8uita#leH must #e some pree-isting standard of conduct. ommission is .ust determining (hether (e have conformed for this. Eut, congress didn't pass this statute to codify a pree-isting standard of la(, fair and e8uita#le is .ust (hat a ma.ority of ".%. . thin5s at time, this is purpose of la(, for agencies to create principles of conduct out of thin air. <r henery could argue, <O, agency can create la( li5e legislature so must #ehave li5e legislature, must act in legislative-li5e mode--do rulema5ing, if (ant to act li5e court, must apply pree-isting principle of la(. ourt soundly re.ects this+ this is 5ey admin la( principle of $i& Chener- II: ,here an agenc- 0as SEC i 2 has s"a"!"ora!"hori"- +o"h "o ma&e r!$es an a '! ica"e, i" is !) "o "he agenc- "o eci e ,hich mo e i" ,an" "o !se. 6his is true even (hen court recogni'es that, as policy, rulema5ing may #e #etter (ay to do it. $ii& "upreme court says <O for agency to retroactively apply ne( principle of la( if statute says it is <O. $iii& Dissent #y =ac5son+ #ig flaming dissent. Wrote henery 0. "upreme ourt has .ust said agencies can create ne( standards of conduct from thin air and then apply retroactively to conduct legal at time,
7*

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6.

can cast in form of ad.udication not applica#le in future, can change minds. What the hell is going on? $a& What ".%. . has done is completely inconsistent (ith the rule of la(. >andis (ould say+ doesn't matter, don't care a#out "<P--too #ad for "<P, corporations not run on #asis of rule of la(. Designers of administrative state 5ne( they (ere violating rule of la(, can't have administrative state and rule of la(. ;uch of (hat happens in ad la( post henery is a re.ection of >andis on this and henery court. henery 00 (as first collision in ". t. #et(een admin state and rule of la(. $iv& 0n future cases, ".%. . treated companies differently. ourts said tough #eans for henery. As la( later developed, pro#a#ly couldn't do this - unless had a very good reason and (ould also need a #etter rationale for retroactive application. The La, o# Chener- I an Chener- II: Mo ern A))$ica"ions a. 6oo much Ad.udication? henery 0 decision strongly suggests that "% could only create a ne( principle of la( through rulema5ing. henery 00 re.ects this saying agency has discretion to choose #t(n rulema5ing and ad.ud. $i& Fo(ever, .udges, scholars unanimous in e-tolling virtues of rulema5ing over ad.udication. 9uema5ing seen as more fair, efficient process for formulation of ne( legal standards. $ii& henery 00 left some openings for .udicial role in choosing (hich one = #Bc choice is GprimarilyH not Ge-clusivelyH left to agency discretion. $iii& ?pon revie(, ct may find agencyMs choice an a#use of discretion. Although courts have not really used this. #. 6oo much 9ulema5ing? $i& ;ay not (ant a rulema5ing (here you (ant to #e e-cepted from the rule - (ant an individual determination. $ii& Fec5ler v. amp#ell $1@1*& $a& Argues that agency doing too much rulema5ing, not individual determinations. onverse henery 00. Argument re.ected. $#& ongress could re8uire ""A to ad.udicate #ut (on't+ system (ould collapse. Procedure allo(s an out+ prove you (ere put in (rong #o---guidelines didn't ta5e you into account. Eut very small escape hatch+ agency not li5ely to say it (as (rong, (ould collapse system. A No"e on Re"roac"i*i"-+ Ad.udication retro not normally pro#lem--idea of retro isn't part of common la(. ourt .ust announcing rule around at time of case. 0n ad la(, agencies are creating ne( rules and principles of conduct. 6hey are recogni'ed as la(ma5ing #odies...the fiction that they are .ust announcing e-isting la( is laugha#le. henery 00 seemed to say retro (as a non pro#lem--there is good and #ad retro. Fo( distinguish? What agency says goes---a slight e-aggeration. ;odern la( imposes a reasona#leness re8uirement on retro.
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Eo(en v. :eorgeto(n ?niversity Fospital $1@11& 9etroactivity of agency rules. :enerally retroactivity disfavored #ut not prohi#ited. ongress assumes agencies (ill promulgate prospective rules. "tatutory interpretation+ loo5 to intentions of legislators, re8uire clear e-press statement from ongress that rulema5ing can #e applied retroactively. $1& "calia says loo5 at APA--rule definition says it is in future, APA rules out retro rules. The Com)ara"i*e A *an"ages o# R!$ema&ing an A '! ica"ion: a Procedures+ $i& 9; no constitutional procedural safeguards. $ii& ?sually 9; procedurally leaner than AD= - #ut ong can increase procedures in 9; L so varies case to case. . #. Who the parties are+ $i& AD=+ small X of discrete entities $ii& 9;+ large num#er, all (ho could #e su#.ect to .urisdiction of agency $iii& 0f (ant #roader effectBlegal coverage, 9; c. 9elief+ (ant to order all around, 9; #Bc AD= case #y case. d. "cope of issues+ more control in 9;, can't control in ad.ud--choose (ho to sue, #ut at mercy of court for scope---pushes to(ard 9; e. Jisi#ility+ more congressional oversight in 9;. Pushes some to ad.udicate to stay #elo( radar. ;ay #e (hy !>9E has never done 9;. f. %-ec orders+ some procedures pertain only to 9;. Pushes to(ard ad.ud to avoid any procedures re8uired in the e-ec orders. g. /le-i#ilityB ar#itrariness+ 9; involves #o-es---constrain #oth parties and agency--- henery. AD= more fle-i#ility, ar#itrariness. $i& Philadelphia :as Wor5s foreshado(s the re8uirement of agencies to e-plain (hy they aren't follo(ing precedent.

7C

CONSTITUTIONAL CONSTRAINTS ON A=ENC> 3E(AVIOR A. D!e %rocess: An O*er*ie, 8. %osi"i*e Theories o# D!e %rocess a. !ihilist Account - DP la( not the la(, .ust policy preferences of shifting ma.orities of .ustices (ho them employ transparent formulas to .ustify outcomes. #. ompartmentalist Account - DP la( divided into discrete #odies of la( governing different govt activities. c. Doctrinalist Account - 6here are enough principles to (arrant a general DP la( 5. Roa ma) #or D% %ro+$ems a. DP only spea5s to actions of govt. #. 6hree on-off s(itches+ GdepriveH, GpersonH, Glife, li#erty, or propertyH. c. >ondonerBEimetallic+ agencies #ound to DP re8uirements only (hen engaged in ad.udicatory functions involving small num#ers of people. !o re8uirements (hen acting in a legislative-li5e capacity affecting large communities. Ee careful here, statutory definition of ad.udicationBrulema5ing not the same as constitutional classification. d. "tate admin la( treated e8ually here #ecause 17th amendment same as Cth amendment. ourts have al(ays treated them the same as to PDP. The Origina$ Un ers"an ing: %ri*a"e La, Reme ies #or %!+$ic La, Wrongs+ courts loo5ed to private la( to understand due process. 8. The origins o# "he D% C$a!ses a. Due process = la( of the land from ;agna arta = consistent (ith la(ful statutory application and consistent (ith traditional procedural forms of decisionma5ing. #. Applies to GpersonsH only+ corporations? partnerships? fetuses? !o PDP cases have ever turned on definition of person. c. GDeprivedH Does it re8uire conscious action or particular mental state? accidental ta5ing or destruction? d. G>ife, li#erty or property+H >i#erty in 12@1 meant .ust freedom from physical restraint. Elac5stone defined concept of life to include personal integrity and security and reputation. ;ay have #een (idely interpreted as this at time. Property+ no standard definition in 12@1. e. %arly years of nation+ court didn't deal (ith these pro#lems. ?ntil mid 1@th century, PDP a minor player. /irst cases 11C3. >a( is a )4th century creation---"upreme ourt cases. 5. Righ"s an Reme ies a. !orth American old "torage v. ity of hicago+ $1@41& same year as >ondoner $DP only apply to ad.udication, not rulema5ing&. <rganic statute+ ordinance governing health inspectors of city. %mpo(ered to sei'e and destroy unhealthy putrid food. 0nspectors themselves made decision food (as unhealthy, unilaterally, didn't have to go to court. !A " argued violated 17th A PDP #ecause it had no notice inspectors coming. ity had also #loc5aded facility--indefensi#le, #ut !A " didn't (ant to (in case on the facts, (anted prior notice and hearing. Folding+ !A " loses--court
73

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C.

says destroy first, decide later. Don't have to give prior hearing as long as give one after the fact. $i& !A " didn't necessarily lose everything. 0f city destroys good food, !A " can go to court, sue for damages for trespass and conversion. ity employees can't commit torts (ithout immunity $at time in 1@41&-status as govt employee conferred no immunity. inspectors (ould say they (ere follo(ing valid la(, #ut only authori'es destruction of healthy chic5ens. 0f they (ere healthy chic5ens, ordinance provides no .ustification for actions--no legal authori'ation. "o, tell it to the .ury. ommon la( tort action. $ii& 0f !A " had such a great remedy after the fact $full trial (ith .ury on common la( claims& $even #etter than some stupid hearing (ith fe( procedures& (hy do they (ant to settle for hearing #efore fact? 0f chic5ens (ere in fact (holesome, you (ould (in trial after fact, #ut (ould pro#a#ly also (in hearing #efore. Would rather have the 72 crates of chic5ens than the la(suit for the chic5ens. $iii& 0t really matters (hen you get your procedures LG(henH can matter more than G(hatH you get. A fe( procedures #efore the fact can mean more than many later on. #. Philips v. ommissioner of 09"+ $1@*1& 09" authori'ed to collect ta-es in summary fashion+ collect first, court determine later. 9emedy comes after deprivation. 0s this deprivation (ithout DP? 0t is certainly a deprivation. 0t is certainly property. 0s full dress .udicial trial re8uired #efore rather than after deprivation? :overnment (ins+ <O to deprive first, give procedures later. $i& Where only property rights are involved, mere postponement of process is not violation of due process---this comes from remedies la(. $ii& /or violations of li#erty or life interest, (here damages aren't sufficient, can get in.unction, (ith property, usual remedy of damages has #een understood to #e ade8uate. $iii& 6his rule trac5s common la( understanding of (hen in.unction is necessary or (hen damages are ade8uate. 9e8uirement of DP is li5e an in.unction+ do deprive of interest until after hearing. $iv& When courts are faced (B deciding contours of DP L (hen procedures are re8uired L (ill analogi'e to >. DLi#e, Li+er"- or %ro)er"-E 8. A Ta$e o# T,o Mo e$s: government employment traditionally not a property interest. Folmes on ;ass "upreme ourt+ may have right to tal5 politics #ut no constitutional right to #e a policeman. :ovt .o# not life li#erty or property. a. Eailey v. 9ichardson $D. . ir. 1@C4, aff'd #y e8ually divided court 1@C1&+ (or5er fired for GdisloyaltyH (ithout hearing or a#ility to confront or 5no( accusers. 0dentified as communist sympathi'er. "he as5s for evidence, govt (on't give info. Erings claim under PDP--entitled to some 5ind of notice and hearing #efore dismiss from .o#. !o other source of procedure for this at time. $i& "hould have #een easy case under la( at time+ she didn't get due
72

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5.

process, #ut under then-traditional notions of property, she (asn't deprived of property interest. "hould have ended case at this point, #ut court goes on to tal5 a#out national security, #alancing of interests, etc. $ii& ;ay#e #y 1@C4 notion that govt employment is not protected #y PDP not sitting (ell. Post !e( Deal e-pansion in role of federal and state governments--role of govt in economy #igger, govt .o#s and #enefits are a large portion of economy, e-cluding this area from PDP (ould #e a much #igger decision in 1@C4 than in 11C4. $iii& Mo e$ F8: Does in"eres" e)ri*e #a$$ in"o ca"egor- o# $i#e, $i+er"- or )ro)er"-< I# no, "hen no D% *io$a"ion. =oint Anti-/ascist 9efugee ommittee v. ;c:rath $1@C1& loyalty case, e-ec order authori'es AB: to designate organi'ations as sympathi'ers. !o procedures to challenge designation. ;a.ority found AB: (ent too far, #ut don't 5no( ho( much of .udgment (as #ased on PDP considerations. "cope of e-ec order (as the pro#lem dealt (ith #y Eurton and Douglas. $i& /ran5furter concurrence+ addresses constitutional issues, famous PDP opinion, long ram#ling discourse on meaning of due process. Eut isn't the issue (hether this is property? do (e have to #e tal5ing a#out due process at all? G"he righ" "o +e hear +e#ore +eing con emne "o s!##er grie*o!s $oss o# an- &in , e*en "ho!gh i" ma- no" in*o$*e "he s"igma an har shi)s o# a crimina$ con*ic"ion, is a )rinci)$e +asic "o o!r socie"-.E $ii& Mo e$ F5: Li#e,$i+er"-, an )ro)er"- are no" 6 ca"egories +!" ins"ea shor"han #or an en"ire !ni*erse o# "hings im)or"an" "o )eo)$e, an- o# ,hich "he $oss o# ,hich ,o!$ +e grie*o!s444one +ig !ni"ar- sing!$ar "hing. 9evolutionary thought change. $iii& ould have argued this is a life interest in classic Elac5stonian sense+ loss of reputation. $iv& Dissent #y 9eed+ no deprivation of property or li#erty interest, so no violation. ategori'es li5e Eailey. afeteria and 9estaurant Wor5ers ?nion v. ;c%lroy $1@31&+ %mployment case+ loses her security #adge, (hich results in firing from this .o# at this facility. :ot no procedures #efore revocation. ourt says can't .ust say Gnot life li#erty or propertyH. Doctrine of unconstitutional conditions+ deals (ith circumstances (here govt tries to do indirectly (hat it can't do directly+ can't for#id practice of =udaism, not o#liged to have A/D , #ut can't have A/D A!D not give it to .e(s--even today there is no clear root to this doctrine, pro#a#ly has roots in su#stantive due process. Pro#lem isn't that right procedures (eren't follo(ed, #ut that they (ere doing something they can't do. !ot really a PDP case. $i& Where do (e stand+ 0n dissent, Erennan, Warren, Elac5 and Douglas treat employment a Gan interest of sufficient definiteness to #e protected #y the constitution from some 5inds of governmental in.uryH. $ii& ould even say all nine #elieved this loss (as grievous. Li#eLi+er"-%ro)er"-+
71

"oon #ecame consensus that this is o#viously the case. ases that come out differently under t(o models are the governmental #enefits cases. 6his shift is from the rightBprivilege distinction--govt #enefits no longer sharply distinguished. a. 9ationales for end of rightBprivilege distinction. $i& /ran5furter's grie*o!s $oss+ not three distinct entities, only one category--anything important to people. :ovt #enefits are clearly important to people. $ii& F!nc"iona$+ harles Wright+ property as understood at common la( served certain functions+ reliance, etc. 0n modern (orld, those functions not served #y property in same sense--land no longer has same 5ic5. 6oday a#stract claims on assets serve these functions+ a#stract claims on assets+ pension funds, govt #enefits and employment. GPropertyH should no( include these things. $iii& urrent underlying theory+ En"i"$emen"+ <ther e-planation+ su#tler+ 0n 12@1, common la( #ac5ground of interests recogni'ed as property, if legislature altered this $li5e shifting from negligence to strict lia#ility&, alters property rights, that is <O, (ould receive due process protection. Property rights can come from legislature. 6herefore, legislature can alter property rights today through giving #enefits as entitlements $(here it (ould #e against the la( for you not to get the money if you meet criteria&. $iv& >ots of overlap #et(een three. #. :old#erg v. Oelly $1@24&+ $i& >o(er court decision in !K+ said state has set of procedures for approving, denying and revie(ing claims for A/D #enefits. 0f it later determines you are ineligi#le, it 8uic5ly decides and denies #enefits. an get full hearing, #ut only after termination, get #ac5 #enefits. District court says this isn't enough+ dealing (ith constitutionally protected interest here. 6iming matters for (elfare #enefits--must provide hearing #efore termination. $ii& "tate of !K Appeal says+ (e shouldn't #e re8uired to provide full hearing prior to determination. Doesn't mention that this isn't protected interest, says .ust that Gsince this isn't traditional core interest, should have more lee(ayH. 0n other (ords, /ran5furter had (on, everyone conceded a constitutionally protected interest (as at sta5e. $iii& Whether (elfare #enefits are a protected interest isn't issue in case+ .ust dicta. ;entions entitlement theory, also functional theory--govt #enefits serve same function traditional property did. Also says they are important+ grievous loss theory. 0n space of t(o sentences, endorses all three theories. $iv& :old#erg is really a#out (hat procedures you are entitled to. 9eversed presumption against pre-event deprivation 9e8uired go#s of procedures #efore deprivation. :ives no real reason for (hat procedures are due--no real formula or methodology, .ust outcomes.. c. Wisconsin v. onstantineau $1@21&+ Wisconsin statute authori'es police to
7@

d.

6. a.

for#id selling alcohol to some people. 0s this life, li#erty or property? ourt finds constitutionally protected interest+ state attaches Ga #adge of infamy.H "eems to #e signing on to grievous loss approach. Eell v. Eurson $1@21&+ auto insurance--losing drivers license+ pre-1@C4 (ould have #een privilege. Ey 1@21, once licenses issued, continued possession may #ecome essential in pursuit of livelihood.--sounds li5e grievous loss. Eut then mentions entitlement---court not sure (hether rationale is entitlement or grievous loss. %ntitlement theory lur5ing in #ac5ground. . . The Thir Wa-: The 3ir"h o# "he En"i"$emen" TheorEoard of 9egents of "tate ollege v. 9oth $1@2)&+ foundation for modern PDP as to (hat is constitutionally protected interest. ". t. here 5ne( it (as trying to #ring order to PDP .urisprudence on constitutionally protected interest. $i& 9oth's employment not rene(ed after one year. :ot no procedures #efore decision not to rehire. $ii& " t said re8uirements of PDP apply only to deprivation of interest encompassed #y 17th A's protection of li#erty and property $(hat happened to life?& $iii& "ays (hen protected right, get some 5ind of prior hearing = paramount. %-ception in e-traordinary cases of governmental interest. 9everses presumption for property from private la( $!.A. old "torage&. $iv& "ays rene(al of O (as important to him $grievous& #ut is not protected interest. learly, unam#iguously re.ects grievous loss approach to determine (hether life, li#erty or property L too e-pansive. Eut can #e used to evaluate (hat procedures you get if protected. $v& :oes #ac5 to traditional understanding of life, li#erty and property $e-cept forgets life&. 9e.ects rightsBprivileges distinction--so property is #igger than in 12@1. >i#erty also #igger than in 12@1. Eut says this case doesn't fall under li#erty. $vi& Puts reputation under li#erty, #ut says reputation (asn't implicated here $originalist (ould put reputation under life, other(ise (ould #e logical to #e property #ecause long protected #y tort of defamation&. $vii& Property+ to (hat e-tent are a#stract claims to future #enefits protected? ourt says must have more than a#stract need or desire, more than unilateral e-pectation of item ;ust have a legitimate claim of entitlement to it. "ays property interests are not created #y fed. const - pre-e-isting B independent source such as state la( or >. $viii& /or entitlement theory, must loo5 to positive state la( of .urisdiction. Fere there (as no state la( providing procedures for re-employment O so out of luc5. $i-& "o, of three rationales for #ringing govt .o#sB#enefits into PDP protection, 9oth chooses entitlements--(hich is most limiting at
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#ringing things into protection. Perry v. "inderman $1@2)&+ companion case to 9oth. 6e-as university-same 5ind of claim-not reemployed, got no procedures for denial. Denial of reemployment not type of constitutionally protected interest. $i& Fere is 8uestion of (hether there is an entitlement+ loo5s to state la(. ourt says can loo5 #eyond (ritten la( of 6e-as to 6e-as contract la(, "inderman says there (ere un(ritten de facto policy of continuing employment. $ii& ourt says must loo5 at 6e-as la( to determine if there is an entitlement per O la(. $iii& ;oral+ GentitlementH decision is made #y state la(+ either statutory or as recogni'ed #y state common la(. Are there eligi#ility re8uirements that confer a #enefit?

7.

The Mechanics o# En"i"$emen" Theor-+ a. I en"i#-ing En"i"$emen"s: Cri"eria an Connec"ions Eishop v. Wood $1@23&+ Do (e loo5 to state la( to determine necessary strength of connection #et(een criteria and outcome? K%". 9egulations covering permanent employees. GPermanent employee (ho is unsatisfactory (ill #e notifiedH When can you dismiss? G0f fails to perform up to standard, ;AK #e dismissedH--- G;ayH here is a#out po(er of city manager $not o#liged to fire if negligent&. 0f not negligent, have created a criteria situation--entitlement. Wood argues that, #y negative implication, if not (ithin this area $not negligent, not inefficient, up to standard&, then am entitled to 5eep .o#. 6his plausi#le+ if list criteria for firing, if don't meet criteria, can't #e fired. $i& District court applying ! la(+ this created employment at (ill. $ii& "upreme court said give deference to fed dist court sitting in state in its interpretation of state la(. "o, no right here. $iii& ;ost o#servers and four dissenters thought this (as nuts. $iv& <pinions reference other opinions+ 1& Erennan references Paul v. Davis+ reputation as protected interest. 9oth (iped out life, crammed reputation under li#erty. Paul li5e W0 v. onstantineau $li8uor stores can't sell to certain people&. Posting people as potential shoplifters $not a prohi#ition on selling to them, .ust a (arning&. >o(er court said needed hearing per onstantineau. ourt said this is <O -- reputation alone is not a protected interest. onstantineau not overruled #ecause lost Greputation plusH --reputation plus a#ility to #uy li8uor. 6his #ecame Greputation plusH or Gstigma plusH --applied to .o#s+ if lose .o# A!D lose reputation, PDP, if .ust lose reputation, no dice. "till must figure out (hat GplusesH count. 0f pass GplusH test = get a name clearing hearing. )& Erennan and Elac5mun reference Arnett v. Oennedy+ if in const core, govt can't ta5e a(ay (ithout PDP. :ovt A!
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e-pand or contract entitlement 'one, can (rite statute to constrain or not constrain discretion. an govt #e more direct+ define the due process you are due (ith the entitlement as minimal, so if entitlement is removed, you are entitled only to (hat you got. Plurality said this is <O. 6his (ould eliminate category of entitlements+ entitlement itself (ould define the procedure you got. Eut this never got to a ma.ority. $6his is G#itter (ith the s(eetH approach - (here the statute conferring the su#stantive right also sets our the procedural mechanism for enforcing the right, the t(o cannot #e separated = canMt separate out the procedure from the entitlement & En"i"$emen"s an Cons"i"!"iona$ Cores: pre-;eachum there (ere a fe( cases re+ prison life. $i& ;eachum v. /ano $1@23&+ en"i"$emen" e1"en s "o $i+er"- "oo. 0nmates transferred to lousy prison. Does PDP apply to this transfer? Didn't get much in (ay of procedure. Does ;ass provide definitive guidance to decision-ma5ers that says that if prisoner does AE , then entitled as matter of la( to stay+ is discretion of authorities so #ound? 0f yes, then entitlement. 0f can't say as matter of state la( that they e-ceeded their authority, then no PDP concern. Folding+ no entitlement. $iv& "tevens' dissent+ says that court says li#erty interest may come from constitution or from state la(. "tevens says rights under due process clause can only come from constitution, not from states. 1& >ist from ;eyer v. !e#ras5a $travel, marry, educate children&+ these are core constitutional interests. As a matter of fed la(, they A9% li#erty as far as due process $#oth PDP and "DP&. 6ransfer from prison to prison isn't one of these. $#& %ntitlement theory doesn't displace constitutional core+ allo(s a .urisdiction to e-pand the range of things (hich count as li#erty interests as far as DP analysis. A state e-pands this core #y constraining discretion of administrators. 6he more discretion left to administrators, the smaller this area #ecomes. ;eachum is dealing .ust (ith core. 0s com#ining federal and state la( together as far as li#erty. $c& Does this entitlement theoryB core interests go for property too? /ederal core #elo( (hich no state can go+ #ut core is .ust the originalist core--those things regarded unam#iguously as property in 12@1. Property mentioned t(ice in const+ DP clause and ta5ings clause. "ome things .ust A9% property no matter (hat state says--e.g. money $as in interest on money in escro(, can't define it as Gnot propertyH.& an e-pand this core per state la(.
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$iii&

Oentuc5y Dep't of orrections v. 6hompson $1@12&+ common conte-t+ prison. Jisitation rights. Oy promulgate regs governing (ho can visit and under (hat circumstances, ho( can refuse, ho( to deny particular visits. Fas none-clusive list of (ho can #e e-cluded. 0ssue+ Do these regs constrains discretion of administrators so much that can say a particular prisoner or visitor has an entitlement to visit? $a& ;a.ority says no--not an entitlement. 9egs (ritten not to constrain discretion of administrators. >ists (ere none-clusive. $#& Determine if there is entitlement #y if there is mandatory duty. Words li5e Gshall, must, (illH. 6hese (ords constrain discretion. 0f Gmay, might, etcH., not constraining discretion so no entitlement. G"houldH? (ho 5no(s, could #e either (ay--good e-am 8uestion. 6his is la( as it stands today+ do careful parsing of language of statutes. $c& >oo5 for connection #et(een criteria and outcome. $d& 6hree .ustices dissented. $Elac5mun in ma.ority& $e& 6oday, in modern of administrative la(, #ig 8uestion is ho( to constrain discretion of administrators. ;ost of admin la( and most of statutory and procedural la( here deals (ith this+ don't trust administrators. 0n vie( of this, entitlement theory creates po(erful incentives to a$$o, discretion. 0f don't, su#.ect to due process suits. $f& As entitlement la( is, if can find entitlement, administrators have #ro5en la(. 0f you have entitlement, also have violation of some la(, (hy care if you have entitlementB right to hearing in addition to the su#stantive right. 0f don't have su#stantive right, don't have procedural right. /east or famine. $6his applies only to entitlementB state la( area. !ot true for constitutional core.& "andin v. onnor $1@@C& Prison regulation+ Gfinding of guilt shall #e made (here charge supported #y su#stantial evidence.H ;andatory language, thus d.ct. said entitlement created and violated $negative inference+ in order to #e found guilty, must have su#stantial evidence&. $a& Folding+ in prison conte-t only, for routine matters of prison administration, (hich may affect the lives of prisoners, doesnMt necc consist of deprivation of constitutional core of li#erty. $#& <nce outside constitutional core of li#erty $very limited freedom from restraint&, must sho(+ 1& entitlement+ criteria, mandatory language )& Atypical hardship $grievous loss #ac5 in action& *& %ntitlement must #e su#stantive not procedural. $c& 9ationale+ 1& ?ncomforta#le (B fed.
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courts interfering (B state prisons. )& %ntitlement doctrine places a premium on unfettered discretionB no regulations for prison administrators - #ad *& Prison cases flooding fed courts. $iv& %vidence of ompartmentalist account+ DP la( radically segmented #y su#.ect matter+ school cases, (elfare cases, prison visitation cases, prison parole cases, etc. each #eing o(n #ody of la(. >a(son disagrees #ut thin5s "andin is good evidence #Bc this holding is limited to prison conte-t. Se)ara"ing En"i"$emen"s #rom %roce !res L not sure a#out this $i& leveland Eoard of %ducation v. >oudermill $1@1C&+ eliminated G#itter (ith the s(eet approachH. %mployee here had property entitlement, no 8uestion. $%mployer said he lied #y saying no felony conviction, he says he thought it (as & Wanted hearing. "u#stantive entitlement determined #y state la(, procedures determined #y federal la(. ?nam#iguous re.ection $1-1& of G#itter (ith the s(eet.H $a& 0f you find an entitlement (B criteria conferring a #enefit, then go to onstitutional procedures $do ;ath(es analysis& not statutory procedures $could #e more or less than the onstitutional procedures&. $#& 6his gives rise to conundrum+ separates procedures out of overall conte-t. $c& Pro#lem+ entitlement is a pac5age (B criteria, procedures, salary, #enefits. Eut a fi-ed pie, can get more procedures #ut (ill cost you in a reduced salary. Eut if must follo( constitutional procedure - then ne-t #argaining session (ill get that amount $may #e more or less - if need more procedures to meet constitutional procedures, then salaries (ill go do(n&. Eut cts donMt (ant to micro-manage = a pro#lem (B this analysis.

D.

The %rocess D!e+ once you have identified a constitutionally protected interest, (hat procedures are due? 8. The D!e %rocess Ca$c!$!s a. >ondoner v. Denver $1@41&--<ne paragraph of analysis. Won some 5ind of oral hearing, #ut doesn't say (hy this is necessary and more is not. #. =oint Anti- tas5 /orce $1@C1&+ DP re8uires (hat situation demands. c. :old#erg v. Oelly+ some(hat of a formal ad.udication prior to removal of #enefit. Written not ade8uate. Eut no analytical frame(or5 or .ustification. d. ;athe(s v. %ldridge $1@23&+ systemati'ed $li5e 9oth did for determining constitutionally protected interest&. $i& ase loo5s li5e :ol#erg v. Oelly+ disa#ility #enefits triggered #y medical condition. /ederal government concedes this is a constitutionally protected interest---criteria strongly related to #enefits. ;inimal procedures up-front, great procedures post
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deprivation. :old#erg (ould seem to control. ;a.ority+ Wrong. !o re8uirement of post removal hearing. 0mportant for t(o reasons+ $a& :iven po(erful similarities to :old#erg, can ta5e as signal that for property interests, chances are lo( that onst re8uires ela#orate procedures. :old#erg is #lip on hori'on. !o large scale transformation of govt #enefits la( to re8uire pre-deprivation hearings. $#& ;ethodology+ court tried to come up (ith structure for determining (hat process is re8uired. "ays essentially that this is (hat (e have #een doing all along. $no dissents from this characteri'ation&. $c& Ma"he,s Three %ar" Tes": 6his is the single standard methodology today for ans(ering (hat process is due. 1& Na"!re o# )ri*a"e in"eres" a##ec"e +- ac"ion: grievousness of loss $9oth said grievous doesn't ma5e it a protected interest #ut does affect (hat procedures are re8uired&---grievous loss didn't disappear #ut shifted to different place in the analysis. )& Ris& o# an erroneo!s e)ri*a"ion through procedures used and pro#a#le value if any of additional or su#stitute procedural safeguards+ <nly some(hat controversial prong of test. 0n suits, claim isn't Ggovt used (rong proceduresH, claim Ghere are the procedures 0 should have gotten $oral hearing, cross e-am, discovery, etc.& 6he thing considered a#out these procedures is+ ho( much difference (ould they ma5e in outcome. Don't have procedures for o(n sa5e, they have instrumental value+ li5ely to lead to correct outcomes. Fo( much accuracy (ould additional procedures add. Why controversial? Although it (as accurate description of (hat (as previously done, there (as movement at time that there 0" value to procedures in and of themselves. Procedures good #ecause they ma5e people feel #etter a#out gov't+ participatory. ;athe(s channels all arguments a#out value of procedures through (hether they add to accuracy of result. *& =o*ernmen".s in"eres"44#isca$ an a minis"ra"i*e +!r ens: ho( much (ill it cost. 6he more procedure costs, the less li5ely it is. $d& What if three factors go in different (ays? Ans(er+ not really a test. Doesn't say (hich factors most important. Due process still depends on circumstances. ;athe(s is .ust trying to provide some 5ind of structure to process.
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;ore of a formulation rather than a test. Doesn't tell ho( to decide cases, .ust provides frame(or5 for (hat to discuss. $e& ?nder this formulation, ho( * cases (or5 out+ 1& :old#erg+ a& 0nterest+ (elfare--very important to individual. #& Jalue of procedures to accuracy+ adds a lot. 6hose (ho can't (rite have trou#le (ith (ritten. !eed oral presentation. c& :overnmental interest+ not only not important, (eighs in other (ay---cost (ould #e lo(er if provide more proceedings. d& Deference+ critical of govts claims of costs e& Presumption+ /rom 9oth, there is ordinarily a presumption that there must #e procedures prior to a deprivation. $6his (ouldn't actually #e true for early property cases, #y 1@24s, #oth li#erty and property&. :old#erg accepts presumption. )& ;athe(s+ $overall #enchmar5+ not much chance of full ad.udication pre-termination& a& 0nterest+ disa#ility-- a little important #& Accuracy+ o#.ective medical determination. Adding to medical records an oral statement? non value c& :overnmental interest+ given e-traordinary (eight. <ral hearings (ould destroy (ay of running #usiness. Would result in restructuring of governmental method. 0f (ould fundamentally change (ay program is run, this is a cost #eyond that of money. d& Deference+ court relied heavily on (hat govt claimed. e& Presumption+ no mention of presumption of procedures. leveland Eoard v. >oudermill $1@1C& #enchmar5+ can often get informal hearing pre-termination (here not a mass .ustice situation-$not huge num#er of claims---.o# terminations, suspensions, etc.&, cost not high to government, add a su#stantial amount of accuracy. $/acts+ employee didnMt thin5 he (as a felon&. $i& 0nterest+ more than ;athe(s, less than :old#erg $ii& Accuracy+ not as5ing for formal hearing, .ust some opportunity to say 0 didn't lie. ;ay #e value. $iii& :overnmental interest+ Would actually #e #etter to 5eep trained people in place, so more procedures costs govt less. $iv& Deference+ court s5eptical of govt claims.
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$v& Presumption of pre-deprivation hearings+ yes. 0ngraham v. Wright $1@22& When can government .ust give you remediesBprocedures after the fact rather than #efore? !orth American old "torage---<O to sue after(ards. ould loo5 at one (ay+ >oo5ed to private la( of remedies+ in govt conte-t, give same remedy. =ust damages, no in.unction. ould also understand early cases as e-ceptions to a general rule of Gprocedures first, deprive secondH, only allo( e-ception for emergency situation. lear under either understanding+ (here govt is depriving you of a liberty interest, ordinarily procedures first, deprive second. $i& "chool case - li#erty case generally, life case under Elac5stone $physical security&+ no( (ithin core of li#erty $doesn't come from state la(&+ govt officials #eat up. "tudent (anted informal hearing. "chool officials say #ring tort action for #attery. $ii& t holds, applying ;athe(s, no pre-deprivation procedures re8uired. $a& Private interest W, cost to govt enormous--completely redo structure of school discipline. $#& lear+ this is a li#erty interest (here there (as no predeprivation hearing re8uired. $iii& "tevens dissent+ only in property can damages ma5e person (hole. "tevens un5no(ingly (as going #ac5 to early )4th century la(--loo5ing to sufficiency of remedies. $iv& ourt #lurs distinction #et(een li#erty and property #Bc allo(ing deprivation of li#erty (B out procedures first $(as only allo(ed for property&.

5.

%os"4De)ri*a"ion %roce !res: 6he 9elevance of After-the-/act 6ort 9emedies+ under (hat circumstances does due process only re8uire post deprivation procedures? a. Parratt v. 6aylor $1@11&+ prisoner orders U)*.C4 of ho##y materials. ;ail room loses materials. Alleged due process violation---deprived of property #y government----this is true 12@1 property---and got no procedures. ?nder settled la( of 1@11, hard to e-plain (hy this isn't due process claim. ould say GdeprivedH doesn't encompass negligence--re8uires some mental state. $court didn't do this.& What court did say+ $i& Presumption of pre-deprivation procedures #ut lots of e-ceptions. Where dealing (ith property interest and (here state provides ade8uate post-deprivation tort remedy, this (ill #e <O. $same thing that early la( esta#lished&. $ii& 0n terms of ;athe(s, (hile there is a private interest, addition to accuracy (ould #e nil--can't hold hearing #efore #eing negligent. :ovt interest is high - doesnMt ma5e sense to hold hearing #efore. #. Con"e1" o# %arra""+ #eginning (ith Paul v. Davis concern sho(s that 17th A getting out of hand $afraid (ould lead to 17th A violation for car accident (ith fed official, (ould overlay all tort la(&.
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7) ?.". . D 1@1*+ gives fed cause of action against state officials for violations of fed const rights. Allo(ed to get around state tort action tried in state courts post ivil War era. Prior to mid-)4th century, small range of cases fell under this, deprivations of federal const rights only. 6hen, incorporation doctrine included Eill of 9ights under 17th A as against states. "o potential range of suits e-panded e-ponentially. Also, understandings of the individual provisions e-panded. Also e-pands range of cases to #e #rought under statute. Also, Gand la(sH construed in 1@14 to include violation of all fed la(s, not .ust Gcivil rightsH la(s, also causes e-pansion. $ii& 0f you A! #ring a suit under D 1@1*, you W0>> #ring under D 1@1* in addition to under state tort la(, due to perception that fed courts more hospita#le and also #ecause of 7) ?.". . D 1@11+ authori'es court to a(ard attorneys' fees to successful plaintiffs. :enerally, in American rule, each side pays o(ns attorneys' fees $%nglish rule+ loser pays& unless there is specific statute (hich allo(s attorneys' fees. 0f can characteri'e a suit as a violation of civil rights, get recovery plus attorneys' fees. $iii& 6hus, creative attorneys characteri'e garden variety tort claims as civil rights claims. Fo( limit this? Well, claims (hich loo5 most out of place under D 1@1* are the due process claims li5e Parratt. ourt could have said GdepriveH doesn't include negligence, didn't do this in 1@11. ould limit (hat li#erty and property are, #ut this has implications for "DP. $did do this in Paul v. Davis--removed Greputation aloneH from protected interests--a small #ut note(orthy narro(ing of class of claims&. $iv& >ast (ay to limit+ limit (hat is violation of DP--re8uire less procedure+ allo( tort actions after deprivation to satisfy due process. 6his e-plains holding of Parratt. %-panded in Fudson v. Palmer $1@17&+ says same for intentional actions not #ased on policy of state, if state guard intentionally thro(s a(ay your ho##y materials #ut is doing as a rogue act, ma5es no more sense to re8uire pre-deprivation hearings than for negligent deprivation--in #oth cases doesn't ma5e sense to re8uire hearings. Parratt and Fudson together+ seem to ta5e out large chun5 of tort suits mas8uerading as due process claims. $v& Eut (hat if post deprivation procedures aren't that great? What if can't get .ury? can't #ring tort action? Eeginning 1@C@, courts have crafted #road 8ualified immunities for government officials. >a( today is very different+ govt officials can only #e sued if they act in #ad faith. "o, assumption of (hole setup $that there (ill #e ade8uate post-deprivation procedures& doesn't al(ays (or5. Daniels v. Williams $1@13&---after the fact post deprivation process supposedly not there due to immunities+ ourt shifts gears, follo(s Po(ell in Parratt---not a deprivation if negligent, so no DP claim. 6his is la( today+ simple allegation of negligence on part of govt officials does not
C1

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support claim of DP violation. Don't 5no( (hether this carries over to intentional acts---immunity doctrines e-clude #ad faith, so there is generally still a remedy under D 1@1*. E##ec" o# %arra""GDanie$s: 0i2 a$$ega"ion o# neg$igence o!" 4 no" s!##icien" #or D% c$aimH 0ii2 There is no, $arge c$ass o# circ!ms"ances ,here a#"er "he #ac" )roce !res are s!##icien" #or D%. Yinermon v. Eurch $1@@4&+ court's latest disaster in this area. <nly virtue+ discusses most cases in this area. >a(son doesn't understand case, totally incoherent. /lorida has procedures for voluntary and involuntary commitment. /or involuntary, lots of procedures re8uired+ no one 8uestions ade8uacy of these. /or voluntary, procedures, all concede these are constitutionally ade8uate. With immunity doctrines, can only sue for violating clearly esta#lished la(s, here there (as no clearly esta#lished la(. $i& 0ssue+ /lorida didn't have statutory procedure for determining (hether voluntary admission (as really voluntary. Eurch claimed doctors used (rong procedures, /lorida should have had hearing to determine (hether he (as competent to volunteer = DP violation. $ii& Eut can't allege /lorida la( is #ad+ (ould #e no clearly esta#lished la( . Eurch must say doctors intentionally used voluntary procedures $if used them negligently, no claim&. $iii& Dissents+ this is Fudson v. Palmer situation+ post-deprivation procedures <O for intentional acts of state official not acting under #ad policy of state+ so, no (ay to characteri'e claims to state a DP claim. "o, ho( did Plaintiff (in? >a(son doesn't 5no(. Doesn't stand for any proposition of la( = may#e a laugh test $(here to dra( line for (hen to have procedures&.

C@

SCO%E OF REVIEW A. In"ro !c"ion 1. Degrees o# De#erence a. "tandards of revie( of .udicial decisions+ N-------------------N---------------------N--------------N-----------------N de novo /9 PC)$a& A#use of =ury !o revie( $no legal def& clearly erron. Discretion determination When revie(ing a V of fact = app ct (ill overturn only if clearly erronious When revie(ing a V of la( = app ct (ill revie( de novo and as5 (hether the trial court got it right Dis"ing!ishing /!es"ions o# #ac" #rom /!es"ions o# $a,: $1& Jery difficult to determine. $)& <n the la( side, * types of 8uestions+ pure, mi-ed and discretion $a& Pure+ $i& <ne that is a#stract... one that doesn't depend on the facts of any case. alled 0vory 6o(er 8uestions. an as5 them in ivory to(er regardless of facts. $ii& %.g., (hat are the standards for determining the validity of an oral contract? very general, a#stract 8uestion. $#& ;i-ed+ $i& :iven the facts of this case, (as there an oral O? 0t contains elements of #oth - need to 5no( la( and facts $(hat (as said, etc&. $ii& /or most .urisprudential purposes, these are treated on the la( side $huge e-ceptions& $iii& Also sometimes called la(-applying Vs. $c& Discretion+ $i& Whole class of legal determinations that get revie(ed (B a lot of discretion $a#use of discretion highly deferential&. $ii& %.g., granting preliminary in.unction, o#.ections in court. $iii& 6here are lots of decisions made #y agencies (hich can't #e shoved into one of the previous three classes $fact, pure or mi-ed la(&. 6hey are really la(ma5ing policy 8uestions. The ,or$ o# a minis"ra"i*e agencies a. Agency decision ma5ers are different than courts+ $1& Agencies have no .ury determinations - (hich are designed to place a #uffer #et(n decision ma5er and the citi'enry. $)& Agency decision ma5ers are not .udges - donMt have life tenure, salary guarantees. $*& Agency decision ma5ers ma5e e-press policy decisions (hich
34

#.

).

#.

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d.

.udges donMt intentionally do. A%A ? B:A: seems to say something+ revie( court shall decide all relevant 8uestions of la( .. seems li5e they are to decide la( to see if agencies got it right $de novo revie(&. 6his isn't (hat happened. 6a5en not to #e a statement of F<W they should decide all relevant 8uestions of la( $i.e. do they give deference to agencies or not&. "o first sentence is a nullity as far as scope of revie( goes. $1& /irst tal5s a#out relief, rather than standards of revie(---has nothing to do (ith scope of revie(. $)& Agencies can't violate const. $*& Agencies canMt violate statutes. $7& Agencies must o#serve procedures re8uired #y the la(. $C& D 243 $)&$A& Agency actions unla(ful if ar#, cap or a#use of discretion. "ounds li5e a standard of revie(. $3& D 243 $)&$%&+ "upposed to hold agency unla(ful if it is not supported #y Gsu#stantial evidenceH. $an actual standard of revie(&. Pro#lem+ it is only applica#le in a case su#.ect to D CC3 P CC2 --formal APA proceedings. Deals (B facts. $2& D 243 $)&$/& 0f un(arranted #y facts -- court can get de novo revie( of facts... #ut very limited. 0nvolves certain aspects of immigration la(. >egal process school+ Don't (orry a#out arcane categories, focus on (ho is the #etter decision ma5er - court or agency. 6hin5 functionally. /irst 8uestion you as5 here+ (hat is the issue involved? 6hen you end up as5ing (hether it is a 8uestion of la(, fact, etc. so you end up as5ing a lot of the same 8uestions. @1R of the time you (ill end up (ith the same result. there is one critical class of cases (here you come out differently. We, ho(ever, are going to loo5 at arcane categories. 6here is one time (hen the mode the agency is operating in really ma5es a difference+ $1& D 243$)&$%&+ 6here is a standard of revie( prescri#ed. Gsu#stantial evidenceH.. limited to formal APA proceedings. "o only applies to formal rulema5ing and ad.udications. <nly applies to agency determinations of fact. =ust the (ay the la( gre( up. $)& What does Gsu#stantial evidenceH mean? "ee ?niversal.

3.

Re*ie, o# Fin ings o# Fac" in Forma$ %rocee ings 44 ? B:A0520E2 1. ?niversal amera orp. v. !>9E $1@C1&+ %mployer fired employee, Why? for #eing union organi'er or for calling #oss a name? lassic 8uestion of fact - (hat (as motive for firing. 0n courtroom, .ury (ould decide, 6his case involves 6aftFartley Act, organic statute specifies a standard of revie(. Where the organic statute specifies a standard of revie(, court are going to #e more li5e to find an implied repeal of APA $i.e. if there is a conflict, the organic statute controls.& 6hey can coe-ist if they cover different areas. $a& "o (hy is this case so much a#out APA (hen it is really interpreting 6F Act? Eecause /ran5furter (rote it--an ad la( .udge. Fe (as going out of his (ay to say that the APA and 6aft-Fartley court have diff standards, #ut
31

$#& $c&

$d&

$e&

). $a& $#& $c&

$d&

they (ere enacted at more or less the same time (B similar language so (e (ill treat them the same. Fe is 8uite consciously reaching out to interpret APA - giving guidance. Pre APA, agencies (ere given .ury-type deference in their fact-finding, #y 1@73, the attitude on agency fact finding (as more s5eptical than 14 years earlier. 0n 1@73, legislature enacted 6aft-Fartley and included in it Gsu#stantial evidenceH. Eut the mood of that legislature at that time (as to mean less deference than Gsu#stantial evidenceH of 14 years earlier #Bc of dissatisfaction (B!>9E agency decisions. ongress e-pressed this mood in legislative history and statute = less deference than #efore #Bc (anted to give courts increased responsi#ility re+ reasona#leness and fairness of agencyMs decisions. 6hus Gsu#stantial evidenceH no longer means .ury deference - nastier, more critical mood #ut not as nasty as clearly erroneous. N---------------N------------------N-----------------------------N-------------N de novo clearly erron. su#stantial evid. D243$)&$%& .ury no revie( <ther points the case hammers home+ $i& >ast sentence of D 243+ court shall revie( G(hole recordH --states the o#vious+ there is usually something in the record (hich (ill support the agency determination, #ut the APA and /ran5furter state that you must loo5 at the (hole record to determine if the (eight of the general evidence supports the agency determination. $ii& >ots of reference to the e-aminer--the A>=, under relevant statutes, A>=s can't ma5e decisions, agencies do. Eut since agencies ma5e the final decisions $appeals form the A>=&, they don't get to see demeanor of (itnesses and the feel of the hearing, not 8uite the same for agency to #e ma5ing a decision on a paper record as opposed to in person. What to do? /ran5furter say to split the difference, agency is o#liged to consider the (hole record. 6he findings of A>= are part of a record. 6he fact that a decisionma5er (ho sa( the (itnesses then made a decision is part of that record. Does that #ind agency? !o. 0t can disagree (B A>=. Eut it must come for(ard (ith reason (hy---see Oim. Oimm v. Department of 6reasury $1@@C& 0nvolved a su#stantial evidence test that appeared in the organic statute, means the same things as D 243$)&$%& A6/ agent ta5es pregnant (ife in official vehicle and gets fired. "tated that he didn't have #ad motives. 0ssue here isn't (hether he #ro5e the la( #ut (hether he did it (illfully. A>= says that the (itness did not have #ad motive, agency ta5es up its o(n appeal, doesn't hold ne( hearing and #ases decision on paper record and disagrees (ith A>= saying that did have #ad motive. $i& A>= is not decision of agency unless agency affirms or fails to revie( it. ourt says (hen A>='s decision #ased solely on demeanor, the agency can't simply disregard it. 0f a #oard reverses a finding li5e this, it (ill not #e
3)

*.

upheld unless there is a sound reason. $e& ;oral+ (here A>= ma5es a finding #ased on credi#ility or demeanor, and agency disagrees, agency decision (ill not #e upheld under su#stantial evidence test unless they overturned (Ba sound reason. $f& "econd theme+ agencies get lots of deference, #ut sometimes they lose. >aro ;aintenance orp. $1@@C& $a& Another su#stantial evidence case turning on motivations of employer in firing employees. 6urned on inferences not hard facts $courts donMt li5e getting involved in inferences&. $#& A>= says+ union animus. !>9E affirms. ourt agrees. $c& "ho(s that over the course of time, people recogni'e su#stantial evidence (hen they see it.

C.

Re*ie, o# Fin ings o# Fac" in In#orma$ %rocee ings 44 ? B:A0520A2. 1. <rganic statute may provide for a standard of revie( for informal proceedings $can re8uire su#stantial evidence&, #ut if no standard of revie( then D 243$)&$A& applies+ Gar#itrary and capriciousH test. ). D 243$)&$A& regulates the process of decision ma5ing L did the agency follo( the proper procedures, (as the outcome legally supported L (as there an ade8uate process of reasoning and an ade8uate ans(er. What 5ind of deference should courts give agencies in this area? *. Ass'n of Data Processing "ervice <rgani'ations, 0nc. v. Eoard of :overnors of the /ed $D ir 1@17& $"calia&. $a& <rganic statute provided scope of revie( of Gsu#stantial evidenceH for formal and informal proceedings. 6his Gsu#stantial evidence testH re8uires the same standard of revie( as the APAMs D 243 $)&$%& - ongress did not distinguish #et(een formal and informal proceedings in statute. $#& 9est of opinion is dicta+ $i& 0n 1@73, su#stantial evidence meant something different than ar#itrary and capricious--not true any more. Amount of evidence is no( the same. "o, doesn't matter (hether formal or informal factfinding. $ii& 6his is no( the la( in the D. . ircuit L ar#itrary and capricious standard re8uires the same 8uantum of proof as the su#stantial evidence test. $iii& 6his is not true in all circuits L e.g., AP is much more deferential in federal circuit. ritics say that (hen ongress enacted the APA, it thought it (as creating ) different standards and should remain that (ay (B AP more deferential than su#stantial evidence. $iv& "caliaMs merger of the ) standards goes against the original interpretation of the APA #ut fits in #etter (B modern scheme of .udicial revie(. *. <ther difference still important+ in formal proceeding, evidence re8uired to meet standard needs to come for Gclosed recordH. Fo(ever, informal decisions generally need not #e decided on a closed, GproceduralH record. AP in informal proceeding thus not limited to closed record, #ut still must #e #ased on some 5ind of record. ?nless org statute provides for procedures, (ill #e #ased on a record
3*

7.

generated historically - tends to include more things than procedural record. 0f the organic statute specifies a standard of revie( $su#stantial evidence usually&, the courts can+ a. 0gnore it and use AP test #. onstrue the org statute to mean the same thing as AP test $(hat courts usually do& c. 6ry to figure out (hat Gsu#stantial evidenceH means in conte-t of this org statute - might #e stricter or looser revie( than AP test.

D.

Re*ie, o# Agenc- Lega$ Conc$!sions 1. 6heory and Fistory+ pre-1@17 days, the distinction #et(een pure and mi-ed 8uestions of la( (as crucial. a. :ray v. Po(ell -- leading case+ $a& Pure or a#stract 8uestion of la(+ revie( de novo. $#& ;i-ed 8uestion involving of application of la( to fact+ given considera#le deference. $c& /acts+ can avoid coal ta- if you are producer, 99 tried to call self producer. 99 also said if no formal transfer of title, no ta-. $d& 6(o-part 8uestion $i& Where statute re8uires transfer of title #efore ta- imposed+ pure 8uestion of la( --- a#stract legal 8uestion. 1& "upreme court re.ects 99's argument #ased on pure statutory interpretation. !o mention of deference to agency---de novo revie(. $Agency had previously concluded no title transfer re8uired #ut this is nBa&. $ii& Whether the 99 (as a producer - get e-emption from ta-. 1& ;i-ed 8uestion of la( and fact---applying legal standard to facts of case - is an independent Oer a producer, canMt solve in an ivory to(er - depends on particular arrangements and relationship (Bsupplier. )& ourt+ has agency in prior decisions applied standard in .ustB reasoned manner --- very different in8uiry. Deferential, though not clear F<W deferential. #. !>9E v. Fearst+ are ne(s#oys GemployeesH for purposes of collective #argaining statute? $or independent contractor& !e(spaper uses common la( standard, says statute doesn't apply. $1& Pure 8uestion of la(+ did statute mean to incorp common la( definition of employee? >oo5 to statute and leg hist. ourt says congress didn't incorporate only common la( definition - more. !ot applying deference to agency. $e& What degree of control does ne(spaper have? !eed facts to decide--mi-ed 8uestion of la( or fact. Applied .ust and reasoned standard to mi-ed 8uestion. Defers to agency e-pertise - to figure out outer limits of GemployeesH #Bc of e-pertise and it (as ongMs intent for agency to do this. ?ses G9easona#le EasisH standard ---deferential #ut don't 5no( ho( much.
37

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f. g.

<'>eary+ Did ongress intend to incorporate common la( meaning of Gin the course of employmentH into >ongshoremen's ompensation Act $i.e. Gin courseH does not include GfrolicB detourH& $1& Pure la( 8uestion+ did congress intend to incorporate? !<. Doesn't give deference or (eight to agency $)& !e-t+ does course of employment cover 6F%"% circumstances? @th ir used de novo for this, /ran5furter said Greasona#leH means same level of deference as given to pure 8uestion of fact determinations #y agency, #asically same as su#stantial evidence test, less than .ury fact finding deference. $*& !ot leading---/ran5furt tried to pin do(n amount of deference in mi-ed cases #y analogi'ing to su#stantial evidence test. /rom functionalB legal process standpoint, made sense+ courts are good at figuring out (hat la( means, agencies good at fact determinations, e-pertise. Pro#lem L not everyone follo(s. Pac5ard ;otor o. v. !>9E+ lead to 6aft-Fartley Act. Does not fit into the :rayBFearstB<M>eary cases. $1& Vuestion is (hether a class of persons is employees and therefore entitled to collective #argaining. ?nder > la( of agency, (ould #e employees+ dre( salaries. Pro# here is e-emption in statute+ employers -- management of company?. $)& lass here is foremen+ loo5 more li5e employees than %< #ut are also acting on #ehalf of employers, are intermediaries. >oo5s li5e Fearst 8uestion+ ta5e legal standard, apply to set of facts that could fall on either side of line, (ould therefore e-pect deference to agency. $*& As usual, government (ins. Eut case doesn't mention deference to !>9E. "aid #oard had #een inconsistent in interpretation of statute. ourt called decision a Gna5edH 8uestion of la( and then decided de novo that #oard had right ans(er+ not calling it mi-ed la( and fact. Eut court is not deciding an a#stract 8uestion here, not an e-treme case, foremen had some po(er to discipline #ut not untrammeled. Vuestion is classic+ given particular circumstances of case, are they (ithin statutory terms---mi-ed la( and fact. "o Gna5edH 8uestion of la( doesn't seem to #e GpureH 8uestion of la(. $7& Possi#le reasons for this+ $a& 6his (as a ma.or issue - very important $#& !>9E had a #ad reputation - #latantly pro-la#or. $c& !>9E had #een inconsistent in applying the statute. 6hese may #e valid considerations in declining to give an agency deference, #ut once decide that there can #e these types of considerations, instead of #right-line :aryBFearstB<Mleary analysis L then can come up (B a long list of factors. 6hen say, can use factors to not .ust deny #ut to grant deference = thus can #e used to decide (hether or not to give deference. Eut then factors can also #e used to determine (hat level of deference to give. "5idmore v. "(ift P o. $1@77&. 6his (as a real messII "tatutory 0nterpretation in the Administrative "tate, #y Diver+ >egal
3C

process approach re.ects categori'ation, rests on decision of (here decisionma5ing po(er should rest. What are reasons to defer to agency+ $1& /ootnote )+ factors (hich courts had identified as relevant to in8uiry a#out (hether to defer to agency. $a& Whether agency construction is of longstanding application $#& Whether agency consistent $iii& Whether pu#lic has relied on agency interpretation $d& Whether it is a pu#lic controversy--is it important $Pac5ard& $e& ommon sense? $f& Whether agency has rulema5ing authority $g& "elf e-ecuting statute? Does agency have to fill in statute? $h& Whether congress (as a(are of interp P failed to overrule? $i& >a(son adds+ 1& Fas agency e-plained its determination--ho( comprehensive an e-planation, the more thought, the more confidence )& What procedures (ere used in ma5ing decision--notice and comment? $)& <nce you start introducing other things, all of these things are argua#ly relevant. 6his is good description of (hat courts did 1@*4s to 1@14s. "o, for any pure or mi-ed 8uestion, to 5no( (hether court (ill give deference, one must go through 17 factor case #y case test. 6hese factors (ill not all fall same (ay--ho( (eigh? $*& What if pure 8uestion of la( #ut is matter of agency e-pertise, etc.? "hould courts then give deference? ourts said yes---same functional factors apply. So, ,he"her )!re or mi1e , s"!c& ,i"h 87 #ac"or "es". $7& Differential deference+ !ot all or nothing----can after determining you (ill defer, then decide ho( much to defer. "5idmore v. "(ift+ level of deference to (hich agency decision entitled to (hatever deference it merits. Eut isn't this unpredicta#le? %veryone thought for 74 years this la( (as a mess. Fo( did people survive mess? $C& Pattern of :rayBFearstB<'>eary (as norm, presumption+ if agency is deciding pure la(, presume de novo revie(, if agency ma5ing mi-ed or la( applying legal conclusion, presume deferential revie( at level appro-imating su#stantial evidence test, fourteen factors come in re#utting presumption. an give either higher or lo(er level of deference. "till dissatisfying in legal community. 5. Theor- an C!rren" %rac"ice a. 6he Vuiet 9evolution $1& hevron ?"A v. !9D $1@17& ;ost cited ad la( case. AA Amendments of 1@22 re8uire permits for ne( or modified ma.or stationary sources. Eut (hat constitutes a stationary source? Eu##le concept+ 0f company (ith * smo5estac5s (ant to add one more, reduces emissions from other * so no net gain, can you treat
33

$)&

entire plant as stationary source? %PA flip-flopped, then said yes, statute didn't specify. D ir had esta#lished scheme (hether to allo( #u##les #ased on purposes. D ir follo(ed its precedent. "up t said W9<!:. $a& 0s this 8uestion of la( or la( mi-ed (ith fact? ould (rite la( revie( article (ithout 5no(ing specific facts, so traditionally loo5s li5e should have de novo revie(. $#& GEasic legal error of court of appeals (as to adopt a static .udicial definition of the term stationary source (hen it had decided that ongress itself had not commanded that definitionH $c& GPermissi#le interpretationH ---(hat is surprising is that this language of deference comes in conte-t of a pure legal 8uestion. :ive deference to agencies for A>> 8uestions, not .ust mi-ed? 6his (ould #e radical revolution in .udicial revie( of agency conclusions. Would fly in face of legal process approach+ e-pect courts to have e-pertise in 8uestions of la(, don't (ant to defer. Eut aren't conscious they are revolutioni'ing anything. $d& At end of decision, gives reasons for deference---technical, comple- issue considered in detailed fashion, reconciling conflicting policies. =udges not e-perts in this field. $e& ?nder traditional presumptive approach, might .ustify overcoming traditional presumption . "o, could read hevron as one of those rare cases (here overcome the :rayBFearstB<M>eary presumption and defer to agency. 6his is possi#le reading of case, in vie( of author is correct reading and is less revolutionary. an #e fit easily into old 17 factor presumptive approach. >egal commentators at time didn't see as significant case $e-cept Pierce&. %ven in 1@13, treated as #lip. $f& <ne catch+ (hen court is discussing revie( of an agencyMs construction of a statute in general, lay out ) step analysis. Possi#le to read as not distinguishing #et(een pure and mi-ed 8uestions of la( - no longer focusing on presumptive mi- of factors. %ven for pure Vs of la(, must do ) step analysis. %arly 1@14s+ .udges (ho (anted rules rather than 17 factor #alancing tests .oined D ir+ "calia, Eor5, "tarr. Eet(een 1@17 and 1@13, emerged notion that hevron had changed rules on scope of revie( for legal determinations. Ey 1@1C, settled la( in D ir that on all 8uestions of la(, agencies got lots of deference. 6rue to lesser e-tent in other circuits too. "upreme court didn't say anything for a (hile. Didn't mention in ad la( cases (here, if it (ere revolutionary, (ould have #een important issue. hevron doctrine loo5s easier+ is meaning of statute clear, if no--give lots of deference. Eut simplicity of statute is deceiving.
32

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$7&

$C&

!ot everyone (ent 8uietly into hevron revolution. 6hose (ho li5e legal process model thought it insane. Want courts to do (hat they do #est, at minimum (ant case #y case #asis evaluating, #lan5et deference not accepta#le. ;any lo(er fed .udges trained in FarvardBlegal process model. 0!" v. ardo'o-/onseca $1@12&+ #attles from lo(er court reach supreme court. ;a.ority (ritten #y "tevens--author of hevron. $a& Alien a#out to #e 5ic5ed out. an re8uest (ithholding of deportation---must meet standard that more li5ely than not (ill #e su#.ect to persecution in homeland. 0n other statute, re8uest asylum, standard = (ell founded fear of persecution. Difference is+ if under asylum, are eligi#le--govt has discretion, if under (ithholding deportation, entitled to stay. :vt tried to argue threshold (as same for #oth statutes, (ell founded only if more li5ely than not. ourt said this is nonsense = could have 14R of #eing shot---not more li5ely than not #ut still (ell founded. ?sing all tools of interpretation $leg. history, (hat ma5es sense&, clear govt position (as nuts. $#& What a#out hevron issue? Author of hevron says+ !o occasion for court to (onder if it should give deference+ case did not present in s8uare fashion 8uestion of hevron. "till, in dictum, ma.ority says this is pure 8uestion of statutory construction $pure 8uestion of la(& for courts to decide. "ays this is different from applying the standard to cases $mi-ed 8uestions&---can #e less o#vious in cases (hether (ell-founded. "ays courts must then defer to agency in mi-edBla( applying cases. 0s saying that hevron did not mean to revolutioni'e la(. Pure 8uestions of la( are for court to decide. $c& Sca$ia issen": "houldn't #e addressing leg history here, must loo5 at te-t. 6hen once court correctly decided that 0!"Ms interpretation is inconsistent (B plain meaning of act, no need to discuss deference = contradicting hevronII !9>E v. ?nited /ood and ommercial Wor5ers ?nion $1@12&+ /our of five+ applied #road understanding of hevron, "calia pointed this out in concurrence--case demonstrates that lo(er courts (ho said hevron not #road (ere (rong. "calia has four votes for this #road reading of hevron. <n other side, four said different. $Oennedy L supporter of #road interpretation of hevron in process of getting confirmed&. $3& <nce Oennedy on the ourt, de#ate ended+ no, i" is c$ear$- es"a+$ishe "ha" m!s" a))$- Che*ron 5 s"e) an no" "he )!re *s. mi1e ana$-sis. So as&: $a& Firs", is "he s"a"!"e c$ear ,i"h res)ec" "o "he )recise /!es"ion a" iss!e< 0f yes, then must apply ongressMs e-press intent.
31

$#&

I# s"a"!"e is no" c$ear +!" si$en" or am+ig!o!s "hen is "he agenc-Is in"er)re"a"ion +ase on a )ermissi+$eG reasona+$e cons"r!c"ion o# "he s"a"!"e.

#.

Dancing "he Che*ron T,o4S"e): $1& When oes Che*ron A))$-< %very legal interpretation not entitled to deference. <#vious cases+ !o deference in agencyMs interpretation of the onstitution or court decisions. <nly applies to statutes and regulations that are covered #y hevron. $a& A))$ica"ion *ers!s A minis"ra"ion. Agencies only get deference on interpretation of statutes (hich they Gadminister.H !ot ones that they GapplyH--- often apply statutes (hich don't administer. %.g., agencies may apply 09 in setting rates, #ut don't get deference #Bc no special responsi#ility re+ ta- la(s. $i& :eneral 9ule+ (here agency has some special responsi#ility in application of statute, this is at least a necessary condition for hevron deference. 6he statute or regulation must #e peculiarly (ith the agencyMs responsi#ility. $ii& %.g., this 5noc5s out APA. %very agency has responsi#ility for it, no one has special responsi#ility for it. Also, organic statute provisions dealing (ith .udicial revie(--courts have the responsi#ility for these provisions. <n the other e-treme, special organic statutes for agencies. 0n #et(een are rest of cases, must determine case #y case. Wagner. $iii& <n some occasion, even agencies (B peculiar responsi#ility donMt get deference. D<= peculiarly deals (Bfederal criminal la(s, #ut it does not GadministerH criminal la(s under hevron. $iv& Wagner "eed o. v. Eush $D. . ir. 1@@1&+ "uperfund. Fo( far does hevron deference e-tend? %PA is entitled to hevron deference (hen interpreting su#stantive matters of statute. Eut (hat a#out (here statute doesn't involve su#stance--involves procedure. 1& ourt gives deference #ut ma.or disagreement #t(n .udges. !o one has clear methodology for dealing (ith unclear situation here. )& Eottom line+ GadministersH is a term of art (ithout a clear and accepted meaning - courts are still flushing this out. 0+2 In"er)re"a"ion o# con"rac"s - in principle hevron does not apply here, #ut in practice there are mi-ed results. $i& !ational /uel :as "upply v. /%9 L hevron counsels in favor of deference to /%9 Ms interpretation of gas supply Os. 9ationale+ technical comple-ity, agency e-pertise. $ii& ;eado( :reen-Wildcat v. Fatha(ay L /orest "ervice permits treated li5e Os and thus /" gets no deference in their interpretation.
3@

0c2

0 2

0e2

In"er)re"a"i*e R!$es - mi-ed results $i& Wagner v. "eed+ D. . ir. grants full hevron deference to interpretative rules, even though they can #e issued (B no procedures $allo(ed to avoid notice an comment re8uirements of APA&. $ii& 0n pre- hevron la(, authority said interpretative rules thought to #e less valid---less carefully thought out #ecause have had less notice and comment. $iii& "outhern ?te 0ndian 6ri#e v. Amoco Prod. o. + 14th ir. does not grant deference to agencyMs interpretative rules. !or does )nd, *rd,3th, and 11th. ". t. has not resolved yet. R!$ema&ing A!"hori"$i& Agencies (B rulema5ing po(er receive hevron deference for interpretations em#odies in rules. $ii& Eut ". t. has said+ hevron only applies (hen there has #een a congressional delegation of authority to an agency. 1& <ne interpretation is that ongress must give an agency authority to ma5e interpretation to get hevron deference. an ta5e a #road or narro( interpretation of this $e-press rulema5ing authority or any 5ind of enforcement authority or interpretative responsi#ility&. )& Another+ A6"/ v. Pena $2th ir. 1@@7&. 0f an agency does not have the authority to promulgate su#stantive rules from ongress, then do not get hevron deference. %.g., no deference to interpretative rules issued #y agencies (B no rulema5ing po(er. AffMd #y ". t. (B out discussing issue. $iii& >a(son+ hevron (as perfectly clear that ad.udication and rulema5ing are #oth su#.ect to hevron. Pro#lem is that hevron doctrine is young - courts still applying prehevron doctrine (here rulema5ing (as important in determining deference. $iv& 6rans?nion v. / + D ir says in dicta that agencyMs lac5 of rulema5ing po(er does not in itself ma5e a solid case for no hevron deference. 9easoning+ have e-tended it to interpretative rules, and interpretations in ad.udications as much as to ones reached in rulema5ings. M!$"i)$e Agencies - (hat happens (hen a statute deals (B more than one agency. $i& 9appaport v. ?" Dept of 6reasury $D ir& L in dicta, (here no single agency e-presses primary responsi#ility, then there is no deference. 9easoning+ different agencies could all have different Greasona#leH interpretations affMd #y the ". t. 6his (ould defeat the purpose of govt-(ide statutes. $ii& =udge 9ogers Dissent+ an have deference in this situation #Bc agencyMs interpretations are functionally different.
24

0#2

Wha" ha))ens i# no Che*ron e#erence< DoesnMt mean no deference L de novo revie(. $i& >egal deference - 0f hevron is applica#le, then the courts must apply it (hen revie(ing agencyMs legal conclusions no choice. $ii& %pistemological deference - ourt may chose to give the agencyMs legal conclusions deference.

052

(o, C$ear is C$ear+ (hat does it mean for a statute to #e unam#igous (B respect to the precise V at issue? hevron re8uires that the statute unam#iguously ans(er the precise V at issue L this is stronger than .ust ans(ering the 8uestion. $a& What does it mean for statute to have meaning? >oo5 to "e1"-(ords. Eut (ords not al(ays self-defining--can have technical meanings, loo5 to con"e1". Part of conte-t is s"a"!"or- scheme surrounding them. Why are there statutory schemes? must have goa$--interpret in light of goals and purposes? And if is from ongress, then loo5 to $egis$a"i*e his"or-. >oo5 to socia$ goa$s too? Also loo5 to canons o# cons"r!c"ion? $#& 6here is no universal agreement on (hich are to #e used. "tevens and "calia de#ate leg history in arraro-/onseca. De#ate over social goals #ig, also over purposes. Also literal (ords of statute-some say loo5 #eneath te-t, as5 if drafting error. $c& Also no consensus as to hierarchy of these items. $d& "o, no generally accepted methodology for interpreting statutes--for determining (hat is meaning of statute. 6herefore, no generally accepted methodology for determining (hat is clear. $e& lear could mean+ $i& 9ight ans(er approach+ ?sing tools of construction, find an ans(er you thin5 is right L no difference in ans(ering the V and ans(ering it unam#iguously. $ii& lear ans(er approach+ ?sing tools of construction, find an ans(er you thin5 is really, really right - higher degree of confidence in ans(er. $iii& Fit you on the head (B a hammer+ 0f a single ans(er doesnMt hit you on the head, then it is am#iguous. $f& Dole v. ?nited "teel(or5ers $1@@4& $i& ourt loo5s to te-t, structure, purpose, leg history, etc., says as (hole e-presses congress intent. $ii& 0f after revie(, are confident, then clear. >oo5s li5e approach X1 or X). $iii& White's dissent+ if you had to (or5 this hard $14 pages&, it isn't clear. Applies X* - not the level of confidence that
21

6.

7.

matters #ut if congressional intent hits you on the head. $g& Pauley v. Eethenergy ;ines $1@@1& $i& omplicated statutes and regs. ;a.ority loo5s at statutes and ans(er doesn't hit on head, so defer to agency. $h& No e#ini"i*e reso$!"ion o# c$ear L ma.ority opinions typically use X1 or X) #ut sometimes X* pops up. (o, %recise is %recise< Do you need a provision e-plicitly addressing the potentially narro( issue at V? 6he narro(er the in8uiry, the less li5ely to find an ans(er in a statute. $a& entral "tates ;otor /reight Eureau $D. . ir. 1@@1& Does statute even address 8uestion at issue? "upreme court has never addressed ho( precisely a statute need address the 8uestion at issue. $i& D. . ir. insists on precise level of specificity, loo5ing for specific instructions from the statute L engaging in a narro( in8uiry. "tatute must address precise V at issue. $ii& 0mportant L if frame the issue very narro(ly, not li5ely to find an ans(er in the statute. Fere, could have framed the issue more generally $dissent agrees&. $#& 6e-as ;unicipal Po(er Agency v. %PA $D. . ir. 1@@3& $i& "tatute doesn't address precise 8uestion at issue. !eed this specificity #efore no am#iguity is found. $ii& 0ssue framed very narro(ly. $c& No rea$ consens!s on ,ha" $e*e$ on )reciseness is re/!ire 4 some co!r"s a$$o, genera$ ,hi$e o"hers insis" on *er- s)eci#ic a ressing o# iss!e. (o, Reasona+$e is Reasona+$e< <nce decide that the statute does not address the precise V at issue, then "tep ). Agency gets deference and (ill #e affirmed if its interpretation is Greasona#leH. $a& 0f an agency gets to "tep ), it is almost certainly going to (in. $#& When courts are discussing "tep ), donMt e-plain (hat they are doing - .ust say interpretation is reasona#le. $c& G9easona#le interpretationH is a highly conte-t dependent. $d& ourts continue to use the legal processBpre- hevron factors in "tep ) L coupled (B a lac5 of .udicial decisions overturning agency interpretations L coupled (B fre8uency of "tep 1 reversals = proof that courts are really using the pre- hevron factors in "tep 1 even though they donMt say that they are doing so. %-ample+ $i& entral "tates - <nce moves to "tep ), then loo5s at the legislative history of the statute L traditional tool of legislative interpretation. 0n determining (hether reasona#le, using it and as5ing is this interpretation possi#le? Doing the same mental operations as in "tep 1, #ut only has to #e reasona#le. $e& Whitecliff, 0nc. v. "halala $D. . ir. 1@@7& <ne of the rare cases that agency loses "tep ). $i& ourt says that the interpretation made #y the agency is out of the 'one of reasona#leness, #ut does not state (hat mode of deference.
2)

$ii& $f&

$g& c.

0ssue+ Fo( does an unreasona#le interpretation even pass "tep 1 in the first place?? <ne-step hevron? World (ould #e easier is .ust as5ed, G(as agencyMs interpretation of the statute reasona#le?H ;ost statutes have 'ones of clarity and am#iguity. ourts are using the same factors to e-amine #oth 8uestions. 6(o step process doesnMt ma5e sense L created unintentionally. A lot of dissatisfaction (B hevron.

The Ongoing De+a"e: (e aren't much closer to understanding hevron #y casela( than (e (ere at time. ;ost of the analytical scholarship is critical of it. 082 Lega$ )rocess iss!e: 0a2 An"i4Che*ron arg!men": >et courts deal (ith la(, let agencies deal (ith factsTauthority of decision ma5ing po(er #ac5(ardly allocated. 0+2 %ro4Che*ron arg!men": 0%ierce2 0f (hat (as at sta5e (as statutory interpretation, those critics (ould #e right. When courts revie( decisions under hevron, they are not doing real Gstatutory interpretationH as traditionally understood. 0n post-non-delegation (orld, statutes no( e-press o#.ectives, goals. 6he agency is not interpreting the la( #ut ma5ing la(. 6here is therefore no #est interpretation of statute #ecause there is no meaning out there to #e found. 6he Act #eing revie(ed is .ust a grant of po(er to agency, if courts didn't defer, (ould #e ma5ing la( themselves, .ud la(ma5ing must #e (orse than agency la(ma5ing L agencies are at least nominally connected to voters. 052 Tren s in mo ern a minis"ra"i*e s"a"e: 0a2 An"i4Che*ron arg!men": ourts have e-panded control over agencies over past decades, (hy have less in this one area? hevron stands alone in mod times in giving deference to agencies. 0+2 %ro4Che*ron arg!men": Ey 1@17, courts (ere not en.oying the same level of esteem as #efore #Bc of a reaction against .udicial activism. /rom 1@31-1@@), repu#licans in control putting .udges on the #ench L then all sides started to distrust for diff reasons. 062 Se)ara"ion o# )o,ers: 0a2 An"i4Che*ron arg!men": 0t is the province of the courts to say (hat the la( is L this is determined in the constitutional scheme L must ans(er Vs of la(. 0+2 %ro4Che*ron arg!men": !ot constitutional, #ut it is more in line (B constitutional school of authority. ourts determine Vs of la(. Eut Vs of am#iguity do not fall under court e-pertise L more in the real of agencies. 072 Congressiona$ in"en": 0a2 An"i4Che*ron: APA could #e interpreted as re8uiring de novo revie( for Vs of la(. 6his is supported #y legislation that never passed $?& - that ongress (ants increased .udicial involvement.
2*

0+2

092

%ro4Che*ron+ $"calia& ongress intends agencies, not courts, to ma5e these .udgments. Where a statute is am#iguous, (ould rather have the institution over (hich it has the most po(er filling in the #lan5s. ongress has greater means to e-ert po(er over agencies than courts. Sim)$ici"0a2 %ro4Che*ron+ !o one says it #ut this is the strongest argument in favor of hevron L easier to apply than old test. 0+2 An"i4Che*ron: <nly marginally easier.

E.

Re*ie, o# Agenc- Discre"ion an %o$ic-ma&ing 8. In"ro !c"ion L "ome agency determinations cannot #e categori'ed as findings of fact or as conclusions of la(. %.g., agencies usually have a measure of discretion to allocate their resources or the agencies have a choice of regulatory policy $pic5 the shape of the #en'ene curve (here no data is availa#le. $a& D 243$)&$A& spea5s directly to these nonfactual, nonlegal determinations+ tells courts to overturn agency decisions (hich are ar#itrary, capricious or other(ise not in accordance (Bthe la(. 6his section s(eeps #roadly and potentially applies to all agency actions, including those also su#.ect to other standards of revie(. 0t turns out that its primary function is to provide a standard of revie( for agency policyma5ing and discretion. $#& Ar#itrary and capricious standard does not fall into one area on the standard of revie( scale - #ut falls into different areas for different cases. 5. The =rea" De+a"e: Re*ie, o# O!"comes *s. Re*ie, o# %roce !res $a& 0ndustrial ?nion v. American Petroleum 0nstitute - #en'ene case L #Bc of lac5 of data, agency had no scientific (ay to demonstrate that any single outcome is the only or the #est outcome under the statute. ourt revie(ing had the same pro#lem, (hat to do??? $i& ourts could say that this (as an unconstitutional delegation of po(er L #ut in modern admin state, agencies routinely ma5e policy decisions L not currently an open 8uestion. $ii& ourts could apply a rationality revie( L similar to the 5ind of revie( given for economic su#stantive DP legislation. Figh level of deference to agencies L this (as the approach ta5en #ut fell out of favor (B capture theories of agencies L donMt trust, courts are not going to ru##er-stamp agency decisions. $#& 6(o main approaches evolved+ highlighted in %thyl orp. v. %PA $D ir. 1@2C& $i& >eventhal+ ourts are not revie(ing agencies de novo, really trying to recreate the agencyMs decision ma5ing process. ourts should #e moderately deferential #ut have careful .udicial revie( of the agencyMs outcomes. $ii& Ea'elon+ ourts are good at revie(ing interpretations of facts, la(s, #ut agencies have special e-pertise. anMt 8uestion agenciesM tools of analysis, #ut can 8uestion ho( they are used. Procedures are good L get more people involved in the decision ma5ing process. Advocates strict court supervision of agency procedures.
27

6.

J6 Kan5ee pretty much re.ected this approach. $c& 6hree different aspects of agency decisions that court could revie(+ $i& <utcome L ourt compares evidence to conclusion, procedures not re8uired. $ii& Procedure L ;ust not only get the right outcome, must have the right procedures. $iii& 9easoning process L anMt use a random process. The =rea" Com)romise: Re*ie, o# Decision Ma&ing %rocess $a& :reater Eoston 6elevision orp. v. / + $D ir. 1@24&+ all here is dictum, #ut D ir (as good at ma5ing points in dictum #ecause it (as appeal proof. ?nanimous panel, authored #y >eventhal. learly thought they (ere doing something important. ;entions court's supervisory role over agencies--this (ouldn't have #een highlighted in 1@74s. $i& ;odern doctrine has gro(n up out of phrase in this case+ Ghard loo5H --- ma5e sure agency has ta5en a hard loo5 at issue, to prove this, sho( that agency can articulate its considerations and reasoning. $ii& Eut must have a record to revie(, so agencies must use procedures to generate this record. $Portland ement v. 9uc5elshaus+ agency doing rulema5ing must ma5e availa#le all info it has at time of rulema5ing to pu#lic or else process is a sham.& $iii& Ey the early 24Ms, this process-orientated revie( had #ecome settled part of administrative la(. $#& 0ndustrial ?nion v. Fodgson $D. . ir. 1@27&+ <"FA had to set an as#estos standard, procedurally (ent through right hoops re8uired #y the organic statute, no issue regarding the fact-findings. What is left+ in a#sence of statutory guidance and evidentiary support, agency had to ma5e a .udgment call and pic5 a standard. Fo( to revie(? $i& ourt ac5no(ledges that in post-non-delegation era, it is the agencyMs .o# to ma5e policy decisions. ourts are not going to ta5e over this .o# and ma5e sure agency got the correct ans(er $there may not #e one right ans(er& #ut are going to ma5e sure that agency thought a#out the issue and considered the issues they (ere supposed to consider. $ii& As5ing for an e-planation from the agency, not a .ustification. 6his is a less demanding in8uiry - although must still provide some information. $iii& Fere, court decides that the effective date pic5ed had sufficient reasoning $not (rongBright - #ut thought a#out it&. Eut not enough e-planation for pic5ing one standard for all or (hy pic5ed *years for record 5eeping re8uirement. DoesnMt loo5 li5e there (as good reasoning for these ) issues. $c& ;otor Jehicle ;fr's Ass'n v. "tate /arm $1@1*&. !F6"A trying to increase h(y safety L had considered ignition loc5 #ut ma.or pu#lic outcry. !o( (hen determining (hat regs to promulgate, agency considers+ (hat methods people (ill use to evade the regs and demorali'ation effects L if people hate, (ill discredit agency safety efforts in other areas. Agency flip
2C

$d&

flops $change in administration a factor& and rescinds the mandatory air#agBpassive seat-#elt restraint regulation. ourt must revie( L no fact issue $everyone 5no(s these things increase safety&. 6his is a policy decision that court must revie(+ $i& ourt states that it is not going to independently decide (hether agency made the right decision, #ut the agency must e-amine the relevant data. $ii& What is an accepta#le e-planation? !ot accepta#le if agency has not considered the factors it (as supposed to consider, straying #eyond the #oundaries and completely leaves issues out. 0f agencyMs decision loo5s funny, it might have to do a #etter .o# of connecting the dots #et(een facts found and choices made. When put everything together, does the agencyMs chain of reasoning ma5e sense? "o if outcome is (ac5y, agency must #e prepared to e-plain $in this (ay, outcome is still relevant&. $iii& Air#ag issue L agency did not sufficiently e-plain (hy it dropped this re8uirement. 6his (as a fairly o#vious alternative $could not #e detached& that the agency did not adopt #ut did not e-plain (hy. $iv& "eat#elt issue+ -- court splits on this issue. ourt decides that the agency did not provide sufficient reasoning. 1& ourt engages in a high level of scrutiny L this is more typical of (hat courts do today. 6he current mood is+ some(here around the Gclearly erroneousH L #ut even less deferential. )& ourts getting closer to re-creating the agencyMs decision ma5ing process $(hat trying not to doI&. *& ?sual outcome if not sufficient e-planation L send #ac5 to agency to provide further e-planation. $v& ourts do not re8uire that legislatures e-plain the reasoning for their legislation. When legislative po(er is delegated to agencies, no( e-pect an e-planation. What (ill #e <O? $vi& AgencyMs reasoning (as #ased on $1& costB#enefit analysis, $)& ris5 analysis, $*& #oss told them to L political pressure, it is perfectly commonplace for agencies to change policy (B political changes. $vii& Agency only argued $1& and $)& and under henery that it all court could loo5 at. DidnMt try $*&, although 9ehn8uist ac5no(ledges in partial dissent that that (as (hat (as happening. DonMt 5no( if that (ould survive as an e-planation L no agency has ever dared. $viii& 6hus, it appears that the 5inds of e-planations that (ill #e e-pected are technocratic analysisBtools. Pure politics or ideology not li5ely sufficient. Puerto 9ico "un <il o. v. ?.". %.P.A. $1st ir. 1@@*& ourt re.ects agency decision #ecause outcome Gdoesn't ma5e sense on faceH. $generally only re.ect #ased on outcome if fails laugh test <9 doesn't appear to have loo5ed at alternatives&. $i& Agency has done something that loo5s stupid. 6here may #e a good reason, #ut (e canMt see it. Agency may #e a#le to .ustify
23

$ii& 7.

#etter. "ays that anything agency does (ithin its discretion must #e at least rational $this is not re8uired of legislatures&. ;ust tell court (hat reasoning (as used.

The =rea" Con*ergence: S!+s"an"i*e Re*ie, an %roce !ra$ A e/!ac$a& APA does not re8uire a lot of paper, (hich (as <O in 1@72 #Bc courts (ere ru##er-stamping agency decisions. Eut once decide in 1@34s that this is no longer accepta#le and (ant to engage in heightened revie( L enhanced su#stantive revie( of agencyMs policy ma5ing decisions. $#& 6hus, courts need a more sophisticated scheme of procedures to produce more paperB record to revie(. $c& >ogical source for information+ the e-pert agency and the parties L need them as tools for revie( of agency decisions. $d& ;odern procedural re8uirements in rulema5ing L e-tensive !P9 and "<EP L survived J6 Kan5ee for a reason and are designed to give courts the material they need to conduct serious su#stantive revie( of agency decisions. ;odern procedural re8uirements are largely driven #y concerns a#out su#stantive revie(. $e& %-tensive !P9 = courts ma5e it possi#le for parties to come for(ard and challenge the agencyMs reasoning. 6he notice and comment period #ecome a vehicle through (hich technical e-perts can identify their disagreements. $f& %-tensive "<EP = courts force agencies to address the concerns of the parties (ho may 5no( more than the agencies a#out the issues involved. $g& 9esult of convergence+ can vie( a defect as either su#stantive or procedural. 0f an agency in an informal rulema5ing fails to address an important point, could #e a su#stantive defect #Bc under Ghard loo5H there (as no reasoned decision ma5ing. Eut also a procedural defect L did not ade8uately e-plain in its "<EP $ henery doctrine re8uires that the agencyMs reasoning #e in "<EP&. "imilarly, failure to give parties an opportunity to e-amine and comment upon important evidence relied on #y the agency could #e vie(ed as a su#stantive defect under Ghard loo5H or a procedural defect in the !P9. $h& :eneral theme+ (hen courts are revie(ing agency policy ma5ing, donMt (ant to say that they are .udging the outcome $although they are& #ut instead say they are loo5ing at the decision ma5ing process - need ade8uate e-planations. $i& ?.". v. !ova "cotia /ood Products $)d ir. 1@22&+ Eotulism in canned (hitefish. 0ndustry on o(n fi-es pac5aging process. 6en years later, /DA says it has solution to pro#lem---heat, industry says pro#lem is fi-ed and that heat ruins fish. Ead policy #y agency, #ut tradition is to not to su#stitute .udgment for agency. "o does indirectly+ gets agency for inade8uate administrative record and for failure to disclose (hat agency (as relying on in its !P9 $the Portland ement v. 9uc5elshaus pro#lem&. $i& 6hese are #oth procedural challenges and also go to ade8uacy of reasoning---#ecause in rulema5ing (hen pu#lishes it decision it is committed to relying on this reasoning, if procedure inade8uate
22

9.

here then reasoning is inade8uate. While these are procedural in form, they really are going to su#stance of decision. oncerns a#out rationality of outcome get channeled into arguments a#out ade8uacy of process and reasoning. $ii& Fere, agency didn't adopt other method of preventing #otulism, court doesn't say other option should have #een adopted, .ust says didn't address other option sufficiently. De#ining "he DRecor E in In#orma$ %rocee ings $a& 0n formal rulema5ing or ad.udication, the agencyMs decision must #e #ased on the record, (hich must #e generated L Gthe transcript of the testimony and e-hi#its, together (ith all papers and re8uests filed in the proceeding, constitute the e-clusive record for decision.H D CC3$e&. $#& 0n informal proceedings, there is not typically a record upon (hich decisions are made. Eut in <verton Par5, the " t said in a case that involved an informal ad.udication that it is o#vious that there is an administrative record that allo(s full, prompt revie( of the agencyMs action and ordered revie( to #e #ased on the full administrative record that (as #efore the agency (hen it made its decision. 6his assumes that informal proceedings generate a (ell-defined record that can form the #asis of a decision. Eut is this necessarily true? While there are more procedures re8uired for informal proceedings than #efore $people file comments, !P9 and "<EP - #ut not the same as a formal proceeding&. "o (hat are courts loo5ing at in revie(ing informal proceedings? $c& Pedersen, discusses this issue and finds that there are t(o (ays of determining (hat courts (ill loo5 at+ $i& Procedural record L generated in formal proceedings---depositions, things defining the closed record. "tyli'ed process for admitting documents into evidence L pre-set rules for the game. Eut this doesnMt happen in informal proceedings. $ii& GFistorical recordH -- (hen an agency in informal process decides, this is (hat it decided (as #ased on L anything that the agency in fact loo5ed at to ma5e its decision. 6his (ill #e the record, determined after the fact. Points out that finding historical record can #e hard---no formal methods to generate it. Who 5no(s (hat people at various levels in the agency loo5ed at? "ays agencies need to generate this to defend themselves. What happens is that agencies end up su#mitting documents that support their position, (hile a challenger su#mits documents that it thin5s supports its position. 6here is no guarantee that the agency actually relied on the documents that it su#mitted, so must accept (hatever comes to court. 1& 0s this a (ea5ening of the henery principle? Kes, #ut no one has figured a (ay out of this. )& <ne important constraint on the courts+ if it is an informal rulema5ing, under Portland ement, all important documents in the agencyMs possession and important premises it is relying on must #e disclosed to the pu#lic for
21

A.

comment. Agencies cannot rely on documents or premises that (ere not a part of the note and comment proceedings. Agency #etter have a good reason for not disclosing important information. $iii& 0n some (ays, process is self-policing. 6his ends up turning everything into a formal proceeding or agency (ill include Gand (hatever else is importantH (hich defeats the purpose. (ar Loo& Re*ie, in %rac"ice: Varia"ions on a Theme. $a& ?" Dept of 6reasury v. />9A $D. . ir. 1@@*&+ 6o (hat e-tent are agencies #ound #y their o(n precedent? 0ssue from henery $)nd cir had said res .udicata, couldn't decide&. ;odern rule here+ agency must at least e-plain (hy it is departing from precedent. 0n this case, interpreted t(o statutes different that loo5ed same. Agency .ust said statutes (eren't same. ourt re.ected+ $i& /irst, agency must ac5no(ledge that it is departing from precedent. Agency did not do this here (hich is (hy the court thre( it #ac5. $ii& 6hen, precedent doesn't #ind, #ut must e-plain WFK departing from precedent and must give plausi#le reason. ourt ac5no(ledges that agency precedent is not as important as .udicial precedent and that politicalBelectoral factors play a role L (hy else have a democracy. $iii& %nough is enough principle+ if agency 5eeps flip-flopping #ac5 and forth. %-tent to (hich agencies can .ustify itself (ill depend on (hat it has done in past-----higher #urden to sho( it is reasona#le if it 5eeps flipping #ac5 and forth. ?nder ar#itrary and capricious test, need some consistency. $iv& 0n reality, agencies reluctant to give up their precedents L for political reasons $donMt (ant to attract ongressM attention& and it is costly to rethin5 policies, it uses up a lot of resources so it is easier to fit a case into an e-isting set of precedents. $#& enter for Auto "afety v. /ederal Figh(ay Admin $D. . ir. 1@@)& "etting ma-imum times for inspection of #ridges, agency doesnMt have muchBany information #ut must come up (ith something. Agency ac5no(ledged that its data #ase suc5ed, and that it (as forced to ma5e a policy decision. $i& ourt accepts agencyMs ac5no(ledgment that ma5ing a policy decision #ased on little data and did the #est it could. Agencies (ill almost never get into trou#le for this L (here they get into trou#le is (hen they give reasons that donMt (or5 #ased for (hat they did. ourts are good at spotting made up reasons - donMt accept sno( .o#s.. $ii& ourt uphold agency and says in short, the agency did the #est it could (ith the little information it had and the ar#itrary and capricious standard re8uires no more than that. $iii& 6hus to #e found Greasona#leH under the ar#Bcapr standard, must appear candid. $iv& Galmost neverH L the more important a decision, the more li5ely the court (ill revie( the su#stantive outcome and dress it up as an
2@

$v& B.

ar#itrary and capricious pro#lem. 0n these cases, there is not much an agency can do, if a court doesnMt li5e the outcome, they (ill lose. 9ecord issue+ informal proceeding, #ut agency adopted its o(n procedures. "o record pro#lem resolved in this case.

J.

C.

A (ar Loo& a" S"e) T,o o# Che*ron $a& "tep ) re8uires the court to affirm Greasona#leH agency interpretations of statutes administered #y agencies. What is Greasona#leH? $i& <utcome test L reasona#leness simply concerns the degree of GfitH #et(een the agencyMs interpretation and a correct interpretation of the statute. 0s it in the 'one of permissi#leness? or $ii& Decision ma5ing process L a su#stantively reasona#le interpretation is reached through appropriate decision ma5ing process. 0f a decision (as not reached (Bappropriate process $did not consider the important information, didnMt really thin5 a#out pro#lem - a Ghard loo5H analysis&, then (ould fail "tep ) of hevron. $#& ?ntil recently, everyone treated "tep ) as an outcome test. Fo(ever, some .udges $D ir& and scholars are ac5no(ledging that there is a relationship #et(een "tep ) and the ar#itrary and capricious test. 9eally doing the same thing analytically. !o( this is a hot topic L there are some opinions and a lot of scholars saying that they are the same or that there is ma.or overlap. $c& 6(o la( revie( articles have urged an e-plicit merger of the t(o tests. <ne says that "tep ) should incorporate the hard loo5 analysis of the ar#Bcap test $>evin&. 6he other says that the hard loo5 analysis should #e superimposed on hevronMs outcome test $>a(son - ac5no(ledges that the other is more sensi#le&. Eoth insist that ho(ever scope of revie( is defined, agencies should #e o#liged to e-plain (hy they chose a particular interpretation of a statute from the universe of choices that are permissi#le under hevronMs deferential outcome test. A+!se o# Discre"ion $a& 6he hard loo5 revie( is a vigorous form of .udicial revie(. 0t is no more and pro#a#ly a good deal less deferential than the su#stantial evidence standard. ourts generally 8uite e-acting in their demands for reasoned e-planations and are often 8uite s5illed at detecting fla(s in agency presentation. $#& Eut every application of the ar#Bcap test is not the same. GFard loo5H developed as a means of policing agency policy ma5ing discretion. $c& ;atters of every day discretion L ho( to allocate resources, (hether to reopen proceedings #Bc of ne( evidence, etc., are generally revie(ed $if at all& on a highly deferential #asis L pro#a#ly (ith the mood of deference first contemplated for the ar#Bcap standard in 1@73. $d& <ne class of e-ceptions+ the decision (hether to institute a rulema5ing L courts in practice are never going to intervene (ith decisions of this type. 3o""om $ine: the ar#itrary and capricious test does a lot of .o#s and the mood is
14

different for each one+ $a& /act-finding $#& Policyma5ing $c& Discretion

11

1.

The Timing an A*ai$a+i$i"- o# K! icia$ re*ie,+ availa#ility, form and timing. 0t is almost universally agreed that this su#.ect $timingBavaila#ility and forum of .udicial revie(& is the least understood area of admin la(. What should #e clear is mangled. a. "tatutory /rame(or5+ i. APA+ not much help, mostly refers you to other statutesB organic statutes. $1& 241a+ (hether .udicial revie( is availa#le. hapter applies e-cept to e-tent that $applies is presumption, (ithdra(al can #e less than total& statutes preclude .udicial revie( $organic statutes can prohi#it .udicial revie(&, or if agency discretion is committed to agency #y la( $not covered in this course. 6his (as clear in 1@73 #ut not understanda#le no(.& @@R of time .udicial revie( is availa#le to someone at some point. $)& 24)+ availa#le to (hat class of persons+ must #e right person to #ring action+ standing+ person suffering legal (rong or adversely affected $*& 24*+ form of proceeding+ says that, (hatever other statute says you do, do, other statutes includes organic acts. ould also #e Administrative <rders 9evie( Act. 0f organic statute doesn't say (hat to file, in the a#sence or inade8uacy of these statutes, can use any applica#le $7& Where to #ring+ court of competent .urisdiction. APA doesn't confer .urisdiction. $C& 247+ (hen is .udicial revie( availa#le+ at (hat point in process+ agency action made revie(a#le #y statute and final agency action not other(ise remedia#le are revie(a#le in court. >a(son says that all statutes ma5ing statutes revie(a#le say that agency action must #e final. /inal has technical meaning. $3& 242+ (hat ii. <ther statute+ Administrative <rders 9evie( Act $Fo##s Act&+ addresses these 8uestions for a num#er of important agencies. $/ , 0 , !9 , Ag, ;aritime, F?D&. 6hings in this statute are also representative of things found in organic statutes. $1& :ives grant of .urisdiction to fed courts. :ives special .urisdiction to ir. ourts. of Appeals. ircuit is (here petitioner resides or has principal place of #usiness or else in D ir. <ther statutes sometimes .ust say D ir--this is fairly rare. $)& )*77+ on entry of final order, agency shall give notice. Any party aggrieved #y order (ithin 34 days after entry may file. "ue ?". #. S"an ing+ Ad la( has its o(n standing doctrine $in addition to constitutional standing la( re8uirements of in.ury in fact, redressa#ility and causation& i. Yone of 0nterests 6est+ oncept of standing is simply that it is for person (ho has the $ega$$- reme ia+$e harm to sue. 0n torts, only in.ured can sue, in 6, only parties to 6 can sue. 6his common la( #ac5ground important to ad la(+ /reedom from competition is not #asis of legal (rong
1)

$gas station opens across the street&. . 6his carries to ne-t level+ la(ful competition, even if there is underlying unla(ful conduct, doesn't give standing $fraud in ac8uiring gas station across street&. Applied+ if o(n a radio station, / illegally grants ne( license, follo(ing common la( analog, you can't sue, disappointed competing APP>0 A!6 might have standing, #ut competitor does not have standing. Eut if there are 1444 applicants for license, if other applicant sues, (on't (in license, (ins .ust a#ility to compete against @@1 people for license--no incentive to sue. "o, in ad la(, there can #e situations (here there is #latantly illegal agency action #ut no one in position to sue due to standing la( and incentives. ongress may #e happy (ith this, #ut may#e not, if not, congress (rites statute saying that competitors can sue--override common la( (ith statute, as long as competitors meet Art 000 standing re8'ts, <O. 0n Pre-APA era, ongress did this. /orm this too5+ congress said that any person adversely affected or aggrieved may sue. Well understood from conte-t that purpose of this (as to e-pand range of people (ho could sue, that competitors could sue, not unlimited+ didn't grant to ordinary citi'ens. APA said, if suffered legal (rong $common la( understanding of legal (rong& or, if there is statute out there (hich e-panded this, person affected or aggrieved (ithin meaning of statute. Jery clear at time. $1& 6he <riginal ;eaning of the APA+ to codify e-isting la(. Eoth common la( understanding $legal (rong& and any e-pansions thereof #y organic statutes $affected or aggrieved (ithin the meaning of relevant statute&. $a& %-ample of this clarity+ Oansas ity Po(er P >ight v. ;cOay $D. . ir. 1@CC& cert. denied 1@C3+ ourt says no legal (rong here and no special statute e-panding range of those (ho can sue. $#& 6his test still leaves a (ide range of things for (hich people can't sue---(here common la( doesn't allo( and (here congress hasn't passed statute or if passed statute #ut doesn't reach that far. $c& As enter 34s, agencies #ad, courts good vie( is predominating. apture model, decline in confidence of agencies. Don't (ant large chun5s of agency action that no one can sue over. "ystem starts to crac5. ourt recogni'es aesthetic interests as (ithin scope of statute. Also D ir. case on / ---station #roadcasting racist stuff--- allo(s listeners as (ithin scope of statute that originally contemplated competitors suing. $)& 6he Yone of 0nterests test+ $a& Assoc. of Data Processing "ervice <rgani'ations v. amp $1@24&+ #ig #om#shell case. <rg (ants to 5eep #an5s out of data processing #usiness. ?nder legal (rong test, dp's are only competitors so can't sue. Are they affected or aggrieved (ithin meaning of a statute? !o, national #an5ing
1*

$*&

$7&

revie( act didn't include .udicial revie( provision. "o this should #e easy case. Eut they (onI ourt tossed out all pree-isting la( on Adminstrative standing. Re)$ace ,i"h: arg!a+$- ,i"hin ;one o# $ega$ in"eres"s )ro"ec"e +re$e*an" s"a"!"e. E1)an s re$e*an" s"a"!"e #rom origina$ meaning o# s)ecia$ re*ie, s"a"!"e s)eci#ica$$a ressing ,ho ma- s!e "o s!+s"an"i*e s"a"!"es a ressing sco)e o# agenc-.s )o,ersH )!" "his "oge"her ,i"h $ega$ in"eres"s "es", ma&es !) "he ;one o# in"eres"s concei*e o# +- s"a"!"e. Loo&ing a" i##eren" s"a"!"es. No $onger $oo&ing a" $ang!age o# re*ie, s"a"!"e. $#& Earlo( v. ollins+ companion case. "ame in8uiry+ holds standing is availa#le in this case. <ffers no other e-planation. $c& 1@21+ Arnold 6ours v. amp+ again applies test. 1th ir. had decided case a#out tour organi'ers trying to prevent #an5s from getting into tour #usiness, 1th cir said no standing. "up ct vacates and remands for reconsideration under ne( statute, 1th ir. says 'one of interests means loo5 at statute, purpose, leg history to determine class of persons intended to sue. "upreme court reverses again, 1 page per curiam. "ays that (e didn't (ant you to loo5 at legislative history for specific indications of congressional desire. $d& 1@21+ investment companies trying to 5eep #an5s out, supreme court says #an5s have standing,. $e& 6hen "upreme ourt disappeared for 1C years. "ay What? >o(er courts in utter chaos. $a& ontrol Data orp. v. Ealdridge $D. . ir.& cert. denied, $1@11& $i& only thing lo(er courts (ere a#le to come up (ith+ (hether interest (as intended #y congress to #e protected, pertinent sources are language of statute and leg history. $(hich is (hat the supreme court told them not to loo5 at.& $#& opper P Erass /a#ricators ouncil, 0nc. v. Dep't o the 6reasury $D. . ir. 1@1)& :ins#urg concurrence+ lectures supreme court on need for further enlightenment from higher authority. ;odern >a( $a& lar5e v. "ecurities 0ndustry Ass'n $1@12& >o(er courts+ #an5s (ant to get into discount #ro5erage #usiness, securities industry (ants no competition, t(o statutes regulate #an5s+ !ational Ean5 Act says (hat activities #an5s can do $only #an5ing activities and closely
17

related to #an5ing per omptroller&, ;c/adden Act says WF%9% #an5s may have #ranches--general rule is that may only have #ranches in state to e-tent that #an5s in state are allo(ed, if discount #ro5erages (ere considered #ranches. "o 8uestions are+ can they #e discount #ro5ers, and are they limited to #ranch num#ers. <n !EA claim $(hat #an5s can do&, everyone agrees "0A had standing---all la( post 1@34s (ould allo( them standing----(ouldn't have made it under common la( test or old aggrieved test.. <n ;c/adden Act claim $(here #an5s could operate&, more complicated----if follo(ed lo(er courts post 1@21 $congressional intent on (ho statute (as meant to protect&, pro#a#ly no standing--statute meant to #enefit state #an5 regulators, not (ithin 'one of interests. $i& >o(er court said "0A had standing. 1& 9eason X1+ "tanding allo(ed here #ecause "0A (as in.ured in fact---had constitutional standing. Eut this isn't a reason--must have this to get into court for anything, there is additional APA re8't. a& Eut not as cra'y as it sounds. District court didn't pull this out of thin air. 0n ADP"<, t(o .ustices said reason for standing (asn't 'one of interests, it (as ---(hy have separate ad la( standing? if satisfy const re8't, satisfy statute--this is enough. Also, D ir. opinion from 1@24 said same thing. $case not overruled& $Eut this case limited to gov't #id conte-t&. )& 9eason X)+ %veryone agrees "0A had standing under !EA claim, have const standing---in. in fact, since have standing under one portion of act, then can piggy#ac5--have standing under all #an5ing statutes. a& Eut this (as flatly contrary to governing precedent in D ir. at time. $ii& D. . ir. affirmed district court summarily. 1& "calia dissented. onst standing isn't APA standing, can't give standing for one issue to another. $iii& "upreme court grants cert. "cholars e-cited--find out a#out standing and 'one of interests test. $iv& White (rote opinion. 9eputation for not clarifying the la(---not #road opinions. Also, in ADP"<,
1C

$#&

(anted to do a(ay (ith 'one of interest, .ust ma5e admin la( correspond to const standing. Didn't have votes to do here either #ut s5e(s. "ays that 24) aggrieved is .ust in.ury in fact, $doesn't mention (ithin meaning of statute &. Doesn't give guidance. 1& "0A (ins on standing, loses on merit. hevron discussion. "ho(s that congressional intent of #enefitting 's is not test. Why did they (in then? a& "ays congress didn't have to have specific intent to #enefit 's at issue. <verrules ontrol Data. "o lo(er courts #ac5 at s8uare one. "ays to #e generous in applying standing doctrine. #& "ays that can get standing for all #an5ing issues if have standing for one of them.----<O to piggy#ac5. $v& /irst D ir case post lar5. Panel said---'s (ho meet const in.ury in fact meet APA. Eut #et(een 1@12 and 1@@1, D ir. refused to allo( piggy#ac5ing $related statutes& and loo5ed to statutes for congressional intent to #enefit particular . >a( of standing 1@12-1@@1 in D ir. (as tighter and stricter than #efore, other courts .ust ignored lar5-----open defiance of lar5. ?nderstanda#le+ argua#ly (ithin 'one of interests #egs you to loo5 for intent, supreme court offered no plausi#le alternative -- no(here else to loo5. Air ourier onference of America v. American Postal Wor5ers ?nion, A/>- 0< $1@@1& /inal chapter of saga $for no(&. ;ilestone+ first time in 'one of interest test that a in supreme court lost. onfirms that 'one of interests tests does mean something. More im)or"an"$-: $oo&s "o e1)ress s"a"!"es4444)!r)ose, s"r!c"!re an $eg his"or-, "ries "o see ,ho "he- ,ere "o )ro"ec", $oo&s "o in'!r-. Was sor" o# )erson congress es)ecia$$- in"en e "o +ene#i"44-this is (hat lo(er courts had #een doing since 1@24. $i& %ssentially says lar5 (as (rong---- can." irec"$)igg-+ac&. an loo5 to other statutes to determine conte-t---loo5 #ac5 to purposes of other statute. $allo(s (ea5 piggy#ac5ing& $ii& "ho(s D ir. (as right to not allo( piggy#ac5ing.
13

c.

Yone of interests still e-tremely difficult, standing normally o#vious. !o clearly identified test, principles. %rec$!sion -- not on e-am+ very (eird stuff. .udicial revie( not availa#le per APA 241 (hen statutes preclude .udicial revie(. Eut, this turns out to #e complicate in reality----part response to agencies #ad, courts good #ut also part due to court's s5epticism of legislature cutting them out. i. %-press + statute says that decision of administrator shall #e final. Eut courts have sometime said so decision is final, (e need final order in order to revie(, so no( is time for .udicial revie(, the statute is an invitation to .udicial revie(, not a preclusion of it. $1& Jeteran's Eenefit statutes+ congress set up ela#orate system of #enefits---JA hospitals, disa#ility pay, admin machinery to implement this. ongress tried to structure this in 1144s as nonadversarial process. "aid la(yers could only charge U14 fee-5eep from #eing adversarial, JA is the veteran's friend. Also tried to cut out courts---(ould disrupt environment. "o congress said decisions of JA on any 8uestion of la( or fact regarding claim shall #e final and conclusive and no other official or court shall have po(er to revie(. 6his statute clearly precludes .udicial revie(, #ut didn't (or5 completely. D ir. said that this only applied to denials of claims after application, #ut doesn't apply to termination of #enefits once started. "o congress revised statute to say, not claims, #ut under any la( administered #y JA. 6hen court said that statute could #e challenged on const grounds #ecause statute (asn't decision of administrators, (as a decision of congress. ongress eventually gave up, allo(ed .udicial revie(, set up ourt of Jeteran's Appeals. $a& ;oral+ precluding .udicial revie( not easy. =ust don't 5no( (hen a preclusion statute (ill do its .o#. ii. 0mplied+ if e-press preclusion (ill only sometimes (or5, one (ould thin5 that there (ould #e no implied preclusion at all. 6his (as mostly true till 1@14s $e-cept for a narro( area of la#or la(---at height of deference to agencies, henery era&. "aid there (as a presumption of .udicial revie(, only preclude (here there is clear and convincing evidence of congressional intent to preclude. $1& 6hen + Eloc5 v. ommunity !utrition 0nstitute+ $1@17& unanimous decision----dairy farmers and Ag fi- mil5 prices. "uit, issue #elo( (as standing, not preclusion. $lac5 of standing and preclusion have same result--no suit&. $preclusion---courts don't decide this issue, standing---courts (on't decide this issue for K<? #ut may#e for someone else, #ut preclusion may #e complete or partial, ho( does partial preclusion differ from standing?& D ir. said that this statute (asn't for #enefit of pu#lic, (as for producers, so consumers had not standing. 0n a footnote, said that statute e-pressly allo(ed for suit #y one class, #y saying this, congress had then impliedly precluded others from suing. "upreme court says
12

$C&

d.

e.

that clear and convincing evidence isn't a#out evidence, .ust a #alancing, this muddied up field. /ound implied preclusion here. $)& >o(er courts responded. 0mplied preclusion claims came up. $*& Eo(en v. ;ichigan Academy+ statutory scheme at least as strong a case for implied preclusion as Eloc5. 0n @-4 decision, court re.ects government's claim of implied preclusion. 9eaffirmed that implied preclusion only availa#le on #asis of clear and convincing evidence, presumption of .udicial revie(, #urden must #e overcome. 6his stunned the "olicitor's :eneral office more than any other during the 1C-13 term--thought it (as a slam dun5. $7& 6hunder Easin+ sho(s that #oth of these decisions are still live, court hasn't resolved issue, la( in lo(er courts is utter chaos. ommitted to Agency Discretion #y >a(+ other area (here .udicial revie( not availa#le at all. $"tanding is (here .udicial revie( not availa#le to specific 's.& 6his is #ig doctrine. When provision enacted in 1@73, pree-isting la( recogni'ed host of areas (here courts didn't get involved --- e.g., (hen agency has prosecutorial authority, has discretion to not prosecute--court (on't revie(, other highly discretionary agency activities. >eg history of APA gave e-amples+ one (as to tal5 a#out statutes drafted so #roadly that there is no la( to apply, say in the discretion of the administrator --congress telling agency to do (hat it thin5s #est---there is nothing for court to revie(--no e-ternal standard to revie( against. ourt, in cases #eginning 1@24, sei'ed on language to say that this (as <!>K circumstance (here committed to agency discretion. 6oday, has #ac5ed off this, accepts other things into this category. 6he 6iming of =udicial revie( + assuming can get into court, (hen is .udicial revie( availa#le? 6oo early or late? "tanding and preclusion are t(o doctrinal (ays to getting to same outcome+ go a(ay. %-haustion, finality and 9ipeness are three doctrinal (ays of saying same thing+ go a(ay for no(, very closely related, difficult to distinguish. i. %-haustion+ principle that, after agency ma5es decision, there is something more that litigant must do (ith agency #efore running to courts--e-haustion of administrative remedies. $1& 6(o legs to doctrine+ $a& statutory e-haustion--(here congress re8uires certain admin steps prior to .udicial revie(, statute is .urisdictional prere8uisite. ;ust do those things in statute first. $%-ample+ no .udicial revie( unless has made application for rehearing and commission has acted (rt application. ;ust ma5e argument in rehearing petition if (ant to ma5e it in court, unless have good cause.& $#& common la( e-haustion---.udgemade doctrine. Jery old-said that, even (here congress has not prescri#ed statutory e-haustion, courts re8uirement for every statute. As long as agency is (illing to listen to you, must at least ma5e one attempt to do so. Differs from statutory+
11

$)&

$*& $7& $C&

"tatutory is .urisdictional, court doesn't have po(er to (aive, $unless statute itself contains good cause e-ception.& common la( e-haustion is discretionary---courts free to (aive, can e-cuse failure to comply (ith .udgemade e-haustion doctrine. $ii& %-ceptions to statutory e-haustion are determined #y reading statute, (ith common la( e-haustion, .udges adopted complicated set of rules for (hen courts could refuse to apply, also had systematic e-ceptions.. $iii& Pro#lem (ith this doctrine+ APA 247 says that .udicial revie( is availa#le (hen allo(ed #y special revie( statutes or after final action, also says that, e-cept for statutory e-haustion, final action is availa#le regardless of (hether there has #een re8uest for rehearing------says that there is no .udgemade e-haustion doctrine in APA cases unless re8uired #y regulations and operation of decision is stayed.. ;c arthy v. ;adigan $1@@)&---principal systematic e-ceptions to .udgemade e-haustion doctrine. %-ceptions+ $a& 0rrepara#le harm+ li5e if you (ould go #an5rupt #y pursuing admin remedies. $#& 9emedy inade8uate due to dou#t as to (hether agency had po(er to grant effective reliefB (here agency doesn't deal (ith type of issue+ %-ample+ as5ing an agency to decide that it is unconstitutional. !o point to as5 agency to ma5e this determination. $c& /utility+ if it (ould #e pointless to as5 agency to rehear---agency #iased, etc. <nly (here it is so clear that there is no dou#t agency (on't rehear. <r if claim is that agency is #iased---futile to as5 agency to determine it is #iased. $d& 0mpossi#ility+ if agency rendered decision against you prior to the time you e-isted as entity and didn't e-ist during time period for reconsideration. D ir. said this (as <O--can get into court. $e& haracter of issue+ some decisions suggest that, even if issue isn't constitutionality of organic statute, you can still get into court on some issues. 6his casela( (as prehevron, no( more important to get agency ruling on la(. Dar#y v. isneros $1@@*& Sai "ha" '! gema e e1ha!s"ion oc"rine is o!" #or A%A cases 0#or mos" )ar"2. >o(er court+ some"imes co!r"s ignore Dar+-. Fo(ell v. 0!" $)d ir. 1@@C& )d ir finds a#sence of recogni'ed e-ceptions in this case. Addresses APA and Dar#y as afterthought+ says agency must say e-haustion is re8uired and
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agency decision must #e stayed, #ut in this case re8uires e-haustion even though agency hadn't made its ruling inoperative. %ffectively reads Dar#y and 247 out of la(. 6his is opinion of ma.ority of circuits. /inality and 9ipeness+ finality re8uirement is statutory, not constitutional. What is finality? Eecause it is part of .udicial revie( statute, it is .urisdictional, goes to po(er of court to hear the case. $1& /6 v. "tandard <il o. of alifornia $1@14& >eading case on interpretation of finality. /6 files complaint. ;ere issuance of complaint has no legal effect+ doesn't o#ligate you to do anything, #ut has practical conse8uences. 0t is only legal conse8uences (hich lead to finality. ourt mentions fle-i#le, pragmatic loo5ing to determine finality, #ut is really not fle-i#le, .ust use legal effects test+ has agency reached stage (here action has crystalli'ed enough that there is legal effect. As long as agency is in considerationB rehearing stage and has declared it inopera#le, has no legal effect. "o 247's regulatory e-haustion re8uirement is a finality re8uirement. $a& While filing complaint has practical conse8uences in real (orld, courts don't (ant to go do(n this road. What if agency .ust says it is thin5ing a#out investigating (hich may lead to complaint (hich may lead to legal effect-----more attenuated, #ut same thing---has practical conse8uence. >egal effect is simple, neat, easy to apply. $#& Difference #et(een e-haustion, finality and ripeness+ $i& e-haustion+ has done enough to get revie( -plaintiff's perspective 1& underlying this+ .udicial revie( #etter if facts developed, agency given chance to reconsider $ii& finality+ has agency done enough that action is final, has agency finishedB crystalli'ed its decisionma5ing process----agency perspective 1& underlying this+ .udicial revie( can #e #etter if decision is final---agency 5no(s its vie(, has gathered its facts, if not final, agency hasn't thought through )& finality is necessary condition for .udicial revie( #ut is not sufficient, decision may #e final, remedies may #e e-hausted #ut still not ripe, so no .udicial revie(. $iii& ripeness+ revie(s from standpoint of courts+ is this right point in process for court to intervene $)& @@R of ripeness issues+ agency promulgates rule, someone doesn't li5e, (ants to challenge, could #rea5 rule and dare them to come after you----defend on #asis of rule invalid---#ut sta5es high, if lose, rule valid, pay penalty for violation. Would normally rather
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challenge immediately -- essentially get declaratory rule prior to application that rule is invalid. --this is pre-enforcement revie(. Prior to 1@32, pre-enforcement revie( (as rare, not unheard of, rare due to admin la( doctrine of ripeness. 9ipeness loo5s from standpoint of court-----.udicial revie( process (ill #enefit significantly #y (aiting for revie(, prior to 1@32, over(helming ma.ority of time court (ould say issue (asn't ripe+ if .ust have #are rule, not applied, court (ould say too a#stract, don't 5no( ho( am#iguities (ould play out, ho( agency (ill interpret. <ther #enefit to court pre-1@32+ $may not have consciously thought of this&+ at time, minimal procedures involved produced minimal paper to revie(, an effect of ripeness doctrine (as to channel most challenges to rules through ad.udication. 9ule is applied #y ad.udication, ad.udication normally produces #etter record--organic statutes provided more procedures, regs re8uired more procedures, even const pdp re8uired some more procedures than rulema5ing. 6his scenario is (hat ma5es A##ot >a#s so revolutionary. A##ott >a#oratories v. :ardner $1@32& %N69%;%>K 0;P<96A!6+ Drug companies (ant to challenge agency rule (hich (ill force redesign of pac5aging. Don't (ant to violate rule---lots of reputational capital, much to lose #y prosecution. "upreme court could have said this (as e-ceptional case, circumstances e-treme so allo( challenge+ (ouldn't have sha5en up admin la(. Eut ruled #roadly+ said .udicial revie( !<W. %res!m)"ion o# '! icia$ re*ie,. Decision is final--has pu#lished statute. ourt says it must loo5 at ripeness, #ut must loo5 at #oth fitness of iss!es #or re*ie, and har shi) "o "he )ar"ies o# ,i"hho$ ing co!r" consi era"ion--4to get pre-enforcement revie(, must pass the A##ott >a#s t(o part test for ripeness. 6enor of opinion said that neither of these concerns (as much of a #arrier to revie(---treated this case as typical case, not e-ceptional---lo(er courts too5 as su#stantial rela-ation of ripeness doctrine. $a& onte-t+ 1@33 --t(o lo(er courts su#stantially rela-ed standing doctrines. %nhancement of role of .udicial revie( in ad la( in 1@34s. $#& "ome people still fail this test, #ut much easier than pre1@32. $c& %ffect of this rela-ation of ripeness doctrine+ allo( more pre-enforcement challenges, this changes system of .udicial revie( of informal rulema5ing. !ot a accident that this case (as 1@32 and transformation of re8uirements for rulema5ing #egan in 1@31---need more info up-front in order to revie(. $d& ;ore common for congress today to, in special revie( statute, include provision for immediate challenge--must #e #rought in first 34 days. ;odern standard procedure is
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opposite from #efore. $7& 6oilet :oods Ass'n v. :ardner $1@32&+ an still have ripeness pro#lems li5e this today. 6oilet :oods lost---meaning of regulations not clear. Wait to see ho( agency applies regulations, see agency implement rules. 6his is the most common grounds for invo5ing ripeness doctrine. $C& <ther 4.CR of conte-ts in (hich challenges and ripeness issues arise+ ?sually, in ad.udication, issue is ripe. <nly time it might come up in ad.udication is (hen agency issues decision in an ad.udication+ no e-haustion pro#lem, #ut if there is finality pro#lem---may not have legal effect-result am#iguous, ourt may say go a#out your #usiness and see if agency does something to you or (as .ust giving you advice, can't tell no(. 6his some(hat a finality 8uestion, #ut (e don't O!<W if there is finality yet, so it is ripeness. 0ssues mush together. Don't Worry - 6he ourts Don't ?nderstand 0t %ither $1& 6icor 6itle 0nsurance o. v. /6 $D. . ir. 1@12&---optionalB good study guide+ discusses e-haustion, finality and ripeness in three opinions. 9ipeness discussion least satisfying of three--doesn't say much a#out ho( to apply A##ott >a#s test.

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<verall+ a. Yone of interest standing v. Article 000 standing+ (hat if flun5 Art 000 #ut pass 'one of interest? 0f congress passes statute allo(ing any idiot to sue---(ill therefore #e (ithin 'one of interest #ut not have, say, in.ury in fact. <rdinarily, easier to satisfy const standing than 'one of interest, #ut not al(ays.

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