APA Procedures: Judicial Review, Rulemaking, and Agency Discretion, Summaries of Administrative Law

Download APA Procedures: Judicial Review, Rulemaking, and Agency Discretion and more Summaries Administrative Law in PDF only on Docsity! Funk, Administrative law outline September 12, 2022 ADMINISTRATIVE LAW OUTLINE Table of Contents PART 1 – CONSTITUTIONAL ISSUES ............................................................................................................................................................. 3 CHAPTER 1 – THE NATURE AND FUNCTIONS OF ADMINISTRATIVE AGENCIES................................................................................................................................... 3 A. The Origin and Mandate of Administrative Agencies ............................................................................................................... 3 B. Legislative Control of Administrative Agencies ......................................................................................................................... 4 C. Executive Control of Administrative Agencies ........................................................................................................................... 8 D. Adjudication ........................................................................................................................................................................... 11 PART 2 – AGENCY FUNCTIONS .................................................................................................................................................................. 11 CHAPTER 4 – CHOICE OF POLICY MAKING INSTRUMENTS ................................................................................................................................................................ 11 A. Legal Constraints on Choice of Policymaking Instruments..................................................................................................... 11 B. Agency Authority and Discretion to Make Policy by Rule ...................................................................................................... 12 C. Agency Discretion to Make Policy by Order After ADJ ........................................................................................................... 13 D. Agency Discretion to Make Policy by Manual or Informal Guidance ..................................................................................... 14 CHAPTER 5 – RULEMAKING .................................................................................................................................................................................................................. 14 A. Formal an Informal Models of RM under the APA ................................................................................................................. 14 B. RM Procedure Under APA §553 and Related Statutes ........................................................................................................... 15 PART 3 – CHALLENGING AGENCIES IN COURT .......................................................................................................................................... 19 CHAPTER 2 – JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ..................................................................................................................................................... 19 A. Standards of Review under the APA........................................................................................................................................19 B. Arbitrary & Capricious review of Questions of Fact or Policy................................................................................................. 20 C. Judicial Review of Questions of Law ...................................................................................................................................... 21 D. Judicial Review of Questions of Fact or Policy Under the Substantial Evidence Test ............................................................. 24 CHAPTER 3 – AVAILABILITY OF JUDICIAL REVIEW .............................................................................................................................................................................. 25 A. Standards of Review under the APA........................................................................................................................................25 Class Review 1. Unit 1 a. Legislative and Executive i. Nondelegation (how leg and exec exercise influence agencies) 1. Congress can’t delegate because of what the Constitution says ii. Legislative Veto iii. Line-item veto 1. No POTUS, but state level can. 2. POTUS can’t do line by line, but he can kill the entire bill with a vid iv. Executive powers 1. Take care 2. Appointment/removal b. Judicial Branch i. Scope of article 3 with connection with common law (what must be made in Article 3 court v in the agency) ii. Due Process – tend to be reflected in different policies and doctrines. Follow idea of due process and what it requires (Goldberg, Matthews cases) 2. Unit 2 a. Agency Operations i. How they develop policies – policy making (congress and elected officials pass a policy of what they do and not do, POTUS will have policy priorities and tend to be reflected in how they operate) 1 4. Private companies have a loud voice in this kind of regulation b. Public Interest i. Agency reacts and attempts to fix social problem ii. Wants to even the playing field between the public and those being regulated (corps) iii. Justifications for government regulation: 1. Natural Monopoly a. Scared of 1 industry being controlled by one hand b. This is generally characterized by either excessively high prices or wasteful competition 2. Public Goods a. Observes that the market will under produce certain goods or services whose enjoyment cannot easily be restricted to those who pay for them b. Traditionally have been advanced to justify direct governmental provision of services like police protection of parks c. Also crop up with television broadcasting companies (public service companies like PBS) 3. External Effects: a. Public bads (pollution) b. Adverse side effects of private action will be overproduced 9. Administrative Agency Possible Functions a. Regulate b. Prosecute c. Issue Licenses & Permits d. Policing e. Investigate f. Record Keep g. Promote h. Promulgate Rules B. Legislative Control of Administrative Agencies 1. Authorizes/Enabling Act; Agency can only act within the scope of their enabling act 2. Authorization: The Problem of Delegation a. Questions raised on the limitations on the range of powers Congress could confer upon Administrative bodies  question of extent to utilize i. Enter the nondelegation doctrine: Congress can’t delegate its legislative duties b. Rule: the court accepted the delegation of power as contingent solely on a finding of facts, since the statute specified both the act to be performed and the condition for its performance. The delegation was assigned merely to ‘fill up the details” 4 i. The Big Aurora: Supreme Court upheld a delegation of power to POTUS to lift an embargo on European trade when he found that the Europeans had ‘ceased to violate the neutral commerce of the US’ c. Rule: Court accepted this because according to them there was enough instructions for POTUS to just fill in the future facts i. Field v Clark: upheld a delegation of power to POTUS to impose tariffs on the imports when he was satisfied of the ‘need for tariffs’ d. Hampton & Co. v US: Court acknowledged that Congress could delegate policy making authority, so long as the statue furnished an ‘intelligible principal’ to guide the delegates discretion and the delegated operates within this intelligible principal e. Panama Refining Co v Ryan: Court did not allow the delegation because Congress had declared no policy, has established no standard, has lied down no rule. There is no requirement, no definition of circumstances and conditions to which the transportation is to be allowed or prohibited f. Rule: (1) Congress may not delegate legislative power to the executive without outlining strict standards for how the executive is to exercise that power. (2) Congress does not have the authority to regulate wholly intrastate activities that have only an indirect effect on interstate commerce. i. ALA Schechter Poultry Corp v US: P was charged for unfair labor laws under NIRA. Defense was that it wasn’t constitutional for executive office to regulate. The representants and antimonopoly provisions only had minor restraints and was then “roaming at will.” Too much at his discretion 1. Court did not allow the delegation. “It supplies no standards aside from the statement of the general aims of rehabilitation correction and expansion. It was not confined to a single act nor to any class or groups of acts identified or described by reference to a standard g. Rule: In promulgating standards regarding exposure levels to carcinogens, the Secretary of Labor must make appropriate findings that exposure presents a significant health risk in the workplace at higher levels in order to set exposure levels at the lowest possible levels i. Industrial Union Dept., AFL-CIO v American Petroleum Institute (The Benzene Case): OSHA allows the Secretary to select the standard for adequate measures regarding benzene. He set it low, and people challenged. The secretary should have presented threshold findings that show significant risk of harm – he would be making a sweeping delegation of legislative power 1. Rehnquist says there are 3 purposes of the nondelegation doctrine: a. Congress, as the body most responsive to public will, is the branch of government in charge of making social policy choices 5 b. To the extent Congress delegates its legislative authority, Congress will provide an intelligible principle to guide the delegate in exercising the delegated discretion c. Courts reviewing the delegate’s exercise of discretion will be able to do so based on ascertainable standards h. Rule: Congress may delegate authority to set sentencing guidelines to a judicial commission, provided that it gives an intelligible principle to guide the commission and does not aggrandize the judicial branch at the expense of another branch i. Mistretta v US: Congress enacted the Sentencing Reform Act to promulgate guidelines. P claimed unconstitutional because it violated the nondelegation doctrine. i. Rule: (1) When Congress confers decision making authority to agencies, it must set forth in a legislative act an intelligible principle to which the person or body authorized to act is directed to conform. (2) Under § 109 of the Clean Air Act, the EPA Administrator may not consider implementation costs in setting national ambient air quality standards i. Whitman v American Trucking Assns., Inc.: 1. Scalia: Agency cannot cure an intelligible principle by itself a. Because there would still be violation of separation of powers and trusting the agency to cure that flaw is adverse to the very concept of intelligible principle in a statute b. Intelligible principle comes from the statute itself-statue is an act of congress, so it preserves Congress’s legislative power 2. Intelligible principal argument can only be brought against Congress and not the agency 3. Steven’s Concurrence: Characterization of governmental power should depend on nature of the power, not identity of the person exercising it – if Congress makes the rule its “legislative power” and should same characterization when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress a. “it seems clear than an executive agency’s exercise of rulemaking authority pursuant to a valid delegation from Congress is ‘legislative.’ As long as the delegation provides a sufficiently intelligible principle, there is nothing inherently unconstitutional about it 3. Factors to look at to determine if Delegation to another will be allowed: a. Allowed i. The amount of discretion the one given the delegation power will have ii. When there is an intelligible principle (parameters of what the person delegated to do that action can do in implementing the statue) iii. Technical jobs are for agencies to do iv. Has what been delegated rely on future facts? 6 i. Overseer or Decider - what are the limitations of presidential power? Clinton wanted the FDA to regulate Tobacco products in such a way that it would have eliminated the Tobacco industry. Brown v. Wiliamson Corp. decided that the FDCA did not give the FDA authority to regulate tobacco products in this manner. 4. Appointment and Removal Powers a. Appointment Power i. Buckley v Valeo: Congress passed an amendment to the FEC that allowed for enforcement of certain restrictions. The panel created for this enforcement included 2 members picked by POTUS, 2 by the Head of Senate, and 2 by the Speaker of the House 1. The mere presence of agents of Congress on an entity with executive powers offends the constitution. Actions violate Art II § 2 ii. Powers of Principle Officers 1. Rulemaking 2. Policymaking 3. Advisory opinion 4. Adjudicate/Enforcement iii. Powers of Inferior Officers 1. Record Keeping 2. Disclosure 3. Investigative iv. Ability to tell the difference between Principle or Inferior Officers 1. Principle Officer a. Have to have a department below b. An officer who has judicial discretion 2. Inferior Officer a. Has to have someone above them v. Ineligibility Clause – point is preventing members of Congress from creating executive positions for themselves or voting or voting to raise the pay of an executive position they expect to occupy vi. Incapability Clause – disallows filing important executive branch positions from the ranks of the legislature b. Removal Power i. The constitution is silent as to the removal power ii. Myers v US: Myers was the postmaster for Portland, OR. Myers was fired by the Postmaster General on orders of POTUS. 1. The power to remove inferior executive officers is an incident of the power to appoint them and by nature is an executive power. Congress may prescribe incidental regulations controlling and restricting the exercise of the power of removal for inferior officers. 9 iii. Humphrey’s Executor v US: FDR wanted to dismiss a member of the FTC – a quasi- legislative agency, namely for his lack of support of FDRS new Deal policies. FDR requested his resignation multiple times and eventually fired him. Nonetheless, the employee kept coming to work despite his dismissal because an FTC employment Act specially stated that POTUS could not fire a member for any reason other than ‘inefficiency, neglect of duty, or malfeasance in office’ 1. Exceptions: if the function that the officer is serving is not executive in nature (if they do purely legislative or adjudicatory functons) iv. Bowsher v Synar: Congress enacted the Balanced Budget and Emergency Deficit Control Act and placed responsibility in hands of Comptroller General to control and help fix Federal deficit 1. Constitution does not permit Congress to execute the laws 2. Congress may not directly participate in the removal of an Executive Branch officer, except through the Constitutional processes (impeachment and conviction) 3. To permit execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws c. Appointment and Removal Reconsidered: The Independent Counsel and the Accounting Board i. Morrison v Olson: COME BACK TO THIS SECTION ii. Why is the issue of principle or inferior important? 1. Principle – Inferior, but also the Function (Leg  Exec  Jud) 2. Humphrey’s refers to the Function aspect. 3. Focus on what the technical statement in the constitution says about the hierarchy on Principle vs Inferior. 4. In Morrison they said the Special Division is a court, which is what Congress can do (POTUS, Heads of Dept, Courts) iii. Whether POTUS operate with this agency and this removal power, can POTUS perform his duty to operate? 1. With Humphry they said it was tough, but they have to create it ‘for cause’ but it doesn’t last. The main question is if its inhibiting POTUS’s ability to function d. Seila Law v CFPB (2020) i. Independent Agency so that it lives outside the political world, and part of the Federal Reserve system which is already independent. Financial divisions tend to be independent. ii. What protects them? For cause removal! Yes, there is a reason for it to be independent. The tenure is limited (5 years). Solid iii. Commissions tend to be multiple person (like the SEC) iv. What is the constitutional argument that says that IA should be run by a single person? 10 D. Adjudication 1. Single Director vs a Commission. It’s about shielding! a. This person has a lot of power acting alone. They DO make policy, they CAN bring actions to ppl, they DO create leg. So they are a principle officer. b. SO can there be a principle officer that overlooks the IA? i. Referring to Humphry’s, it’s a multi-person commission. Looking at precedent. 1. Agency Authority to Adjudicate a. Historically adjudication within the agency was limited to fact finding and you had to take the action through Art III courts 2. But is this an Art III issue? Public v Private a. If public, okay of its an agency b. If its private, then Art III Courts c. Commodity Futures Trading v Schor: i. Factors to examine: 1. Extent to which the essential attributes of judicial power are reserved to Art III courts 2. Extent to which the non-Art III forum exercise the range of jurisdiction and powers normally vested only in Art III courts 3. The origins and importance of the right to be adjudicated 4. The concerns that drove Congress to depart from the requirements of Art III 3. Due Process Hearing Rights a. Goldberg v Kelly: agency cannot remove benefits (welfare) without giving a hearing because those benefits are a protected right b. Matthews v Eldridge: Process isn’t due to everyone who has been deprived of something. Depends on whether the entitlement is constitutionally protected c. Board of Regents v Roth: teacher who was upset he wasn’t brought back after his yearlong contract finished i. He has neither a liberty nor a property interest in it. No process due to him then PART 2 – AGENCY FUNCTIONS Chapter 4 – Choice of Policy Making Instruments A. Legal Constraints on Choice of Policymaking Instruments 1. Agency Functions  Policy Formulations  Policymaking Instruments  Legal Constraints on Choice of Policy Making Models  Due Process Constraints 11 b. In an ADJ setting, the board could have decided the issue of whether a list of employees must be furnished to the union and ruled that Excelsior furnished this type of list. But they declined to enforce the requirement retroactively on the parties in Excelsior case and instead purported to hold the “rule” would apply only in elections after Excelsior decision. c. But they still had to provide the list over because the order was valid 6. NLRB v Bell Aerospace: NLRB changed longstanding policy about whether managerial employees can unionize. Now NLRB allows them to unionize. Bell is arguing that you can’t change this policy, unless you go through RM a. As long as the agency follows the directives within the APA, the agency can choose to make policy through RM or ADJ. It is within their discretion to decide 7. NLRB is a good example that does rulemaking AND rulemaking via adjudication – they do both! 8. Agency choice first what falls under that is the restrictions of Due Process, APA and Enabling Act D. Agency Discretion to Make Policy by Manual or Informal Guidance 1. Rule: A federal agency may not promulgate internal rules that limit how benefits are distributed which are not publicized and which are not accomplished by RM procedures according to the APA a. Morton v Ruiz: Ramon Ruiz and wife are Papago Indians and US citizens. They left the reservation to seek jobs 15 miles away. They had not assimilated into the culture and have maintained close ties with the reservation. Ruiz lost his job and applied for assistance benefits from Bureau of Indian Affairs and was not notified that he was ineligible because he does not live “on the reservation” i. Can’t deny coverage through a manual. Why? 1. The new rules was not published = no notice 2. APA § 552(a)(2)(c): requires that administrative staff manuals and other instructions to administrators that affect members of the public be published and that an agency may not rely on non-published materials to adversely affect members of the public ii. When a policy has a direct and substantial effect on individual rights, cannot go through just internal policy. Should have been done in a formal process iii. When dealing with a fundamental individual right, can’t just go through an ad hoc basis by the dispenser of the funds Chapter 5 – Rulemaking A. Formal an Informal Models of RM under the APA 1. RM process tends to attract substantial attention from interest groups regulated parties, elected officials, and the general public a. Informal RM – requires notice & comment (N&C) b. Formal RM – requires on the record 2. Rule: When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires that the agency follow the formal rulemaking procedures set forth in §556- 557 of APA 14 a. US v Allegheny-Ludlum Steep Corp: Goal was to address a perceived shortage of railroad cars the ICC promulgated ‘car service’ rules which generally required that unloaded freight cars be returned in the direction of the owning railroad. The rule was challenged saying that the language of the act requires the ICC to employ formal RM rather than informal i. Court rejected the argument that the rules were procedurally defective. The statute does not say it needs to be on the record 3. Rule: When a statute requires that rules be made on the record after opportunity for an agency hearing, the APA requires the agency to follow the procedures set forth in §556-57. a. US v Florida East Coast Railroad: did not trigger formal RM. To trigger formal RM the court wants to see words pretty close to ‘hearing on the record’ 4. Allegheny-Ludlum and Florida East Coast, says the RM will presumptively be governed by informal 553 model, at least absent clear congressional direction otherwise B. RM Procedure Under APA §553 and Related Statutes 1. Notice a. Informal RM contains 3-basic things: i. The public must be given notice of the proposed RM (federal register) 1. Statement of time, place, manner (§ 553(b), 1, 2 and 3) – page. 959 ii. The public must be given an opportunity to comment orally or in the writing on the proposed rule, and iii. The agency must incorporate in the final rule a ‘concise general statement’ of its ‘basis and purpose’ b. Rule: Section 4 of the APA requires that the notice of a proposed RM in the Federal Register contain either the terms or substance of the proposed rule or a description of the subjects and issues involved i. Chocolate Manufactures Assn. v Block: The final rule must be the logical outgrowth of the proposed rule, or of the notice and comment taken together 1. Why? What could be the point of the comments if the agency didn’t look at them 2. Want the public to be able to anticipate what will come 3. If the final rule ‘substantially departs from the terms or substance of the proposed rule,’ the notice is inadequate c. Rule: A reasonable regulation that fills a gap left by Congress is entitled to deference i. Long Island Care at Home, Ltd. v Coke: 2. Explanation of the Decision: The Concise General Statement a. APA § 553: Require agencies to incorporate into their rules “a concise general statement of their basis and purpose” i. Rule: An agency promulgating a rule through informal notice-and-comment RM is required to provide a concise general statement that identifies the major issues of policy considered by the agency and the rationale for reacting to those issues. 15 1. US v Nova Scotia: need not address every comment or give every detail. Should enable the court in judicial review to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as they did. Should see the logical progression from beg to end 3. Protecting the Integrity of the RM “Record”: Ex Parte Contacts, Political Influence, and Prejudgment a. Exclusivity of the Rulemaking Record i. APA § 557 explicitly prohibits ex-parte contacts in formal ADJ because such contacts undermine the integrity of the agency adjudicative process. 1. Primary rationale is that it is more fair and ensures transparency ii. HBO v FCC: Communications which are received prior to issuance of a formal notice of RM do not have to be put in a public file. Unless that info contained in such communication forms the basis for agency action, then that info must be disclosed to the public in some form. 1. Once the comment period has ended and now shifted into the final proposed rule, any agency official or employee who is or may reasonably expected to be involved in decision process of proceeding should refuse to talk to any outside people about anything until final decision is out. 2. If the ex parte communication does occur, any written document or a summary of oral communication must be placed in the public file established for each Rm docket immediately after the communications is received iii. Every court since HBO has rejected the idea of banning ex parte contacts during the pendency of a RM absent a statutory req to do so 4. Political Influence on Administrative Policy a. Sierra Club v Costle: the EPA revised the performance standards governing emissions control of new coal-burning power plants. The environmental groups sought judicial review claiming that the EPA should not have engaged in post-comment period irregularities. 7 of the 9 meetings were in the Federal Docket. i. After comment period ends it is not required that the convo ends unless the statue says so ii. So long as individual Congressmen do not frustrate the intent of Congressmen do not frustrate the intent of Congress as a whole it is okay to represent their constituents vigorously. Even after the comment period b. Mining Useful info from HBO v FCC & Sierra Club v Costle i. We learned about ‘ex parte communications’ that is applied in agency setting 1. What is ex parte communications? it’s an impermissible communication between agency and some regulated party. Its impropriety conversation ii. Fundamental fairness = we want equal access iii. APA formally address ex parte in formal process 16 interpretative. Whether the agency is creating new law or merely restating, clarifying, or explaining existing statutory norms i. Dominant test for differentiating between interpretative and legislative is the legal effects test 1. Legislative rules are defined as those directly altering the legal rights of the public 2. Interpretations and policy statements are defined as merely describing how the agency intends to act in the future in interpreting and applying existing norms. ii. This is APA § 553 – by giving the employees the checklist of marking off 8ft instead of 6ft iii. General statement of policy: 1. Statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power 2. Rules that are consistent with the statue or regulation but are not derived from it are not interpretive because they are an arbitrary choice among methods of implementation – aka this is a RULE d. Lincoln v Vigil: Indian Health Services closing clinics. Issue of should they go through N&C because it feels like a rule and impacts the community. i. This is a categorial exception under 553. It’s a policy development that was hosted on agency by funding issues and the agency is handling it. Sometimes Congress can decide an agency decision is committed to discretion based on the agency. PART 3 – CHALLENGING AGENCIES IN COURT Chapter 2 – Judicial review of Administrative Decisions A. Standards of Review under the APA 1. APA 701 – 706 a. APA 701 – Applications; Definitions i. Judicial review is available EXCEPT 1. (a)(1) where the statute prohibits it; or 2. (a)(2) – agency discretion by law b. APA 702 – Right of Review i. It’s like standing in con law ii. An action seeking injunctive relief, should not be dismissed because it’s against the US (sovereign immunity does not apply) c. APA 704 – Actions Reviewable i. Ripeness can’t bring it too early (APA of ripeness) ii. Exhaustion of administrative remedies d. APA 706 – Scope of review (standard of review) – it’s what they will review 19 i. (2)(A) – arbitrary, capricious, abuse of discretion and contrary to law (the usual review standard) ii. 2(E) – substantial evidence standard which applies in formal agency actions (it makes sense because they have a formal transcript, and there is substantial evidence that the court of law can review and see if its supported by 556 and 557) iii. 2(F) – fresh new review (de novo) 2. Standards of Review a. Rule: When reviewing an agency decision, the APA requires courts to consider: (1) whether the agency acted within the scope of its authority, (2) whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, and (3) whether the agency’s action met the necessary procedural requirements i. Citizens to Preserve Overton Park v Volpe: P wanted no road through park, unless no feasible and prudent alternative. 1. Issues in the case: a. Law to apply – 701(a)(2) i. Look at whether the agency was able to totally use its own discretion ii. Courts will rarely find that there was no law to apply b. Standard of review – 706(2)(a) & 706(2)(e) i. 706(2)(e) – substantial evidence – only applies to either formal RM or formal ADJ ii. 706(2)(a) – is the standard of review for informal U iii. Substantial Evidence test – aggressive review linked to formal agency action. Its linked to 556/557 which are formal activities iv. How do you know when its informal RM v informal ADJ? If its an individualized style of decision, its ADJ. v. General review is arbitrary and capricious standard c. Level of Review – hard look doctrine i. Searching and careful ii. Not necessarily deferential iii. The court will not just rubber stamp the decision d. Not enough of a record i. Don’t want agencies to engage in post hoc rationalizations ii. Now agencies will want to memorialize everything to cover their basis 2. What are the choices here for judicial review standard? a. Substantial evidence test – aggressive review. linked to formal agency action. Its linked to 556/557 which are for formal activities. 20 i. How do you know when its informal RM or informal ADJ? If its an individualized style of decision, its ADJ. They are very elastic. Also look at the result of the action – to be RM, the result has to be a rule. b. General review is arbitrary and capricious standard ii. Review of informal agency action must be based on the administrative record below, even though no formal evidentiary record exists. Documents that were not part of the administrative record cannot serve as a justification for agency action, even if the agency knew of and relied upon the documents. B. Arbitrary & Capricious review of Questions of Fact or Policy 1. The Evolving Understanding: From “No Reasonable Ground” to “Hard Look” Review a. “Hard Look” is agency gave hard look at the evidence, and that the courts will look at a hard look at the evidence they submit for their decision making b. Need to check that the agency took a hard look while reviewing along with the standard i. It is used in 2 ways c. Rule: When an agency rescinds a regulation, it must explain the evidence underlying its decision, and offer a rational connection between the facts found and the choice made i. Motor Vehicle Manu. Ass. v State Farm: issue of un-RM and it should not undergo any judicial review. but why? 1. You took an action, and that action makes it judicial reviewable. They presumed standard of review and process the agency must go through is the same as when they created it. If you went through N&C before, you must go through it again. d. Rule: An agency decision is arbitrary and capricious if it rests on a pretextual basis i. Dept of Commerce v New York: allocating funds for congressional district. To make sure under rep ppl are able to vote. Here, judicial review must be robust. The A&C standard allows them to make a hard look C. Judicial Review of Questions of Law 1. Question of Law v Questions of Fact a. Questions of Fact are for the agency to decide and adjudicate b. Questions of Law are for the Art III courts to decide c. When it is mixed questions of law and questions of fact, will really look at how much deference is being given to the agency 2. The Early Years a. Rule: When reviewing an agency decision involving a mixed question of law and fact, courts review (1) the facts found by the agency to determine whether the agency’s conclusion has “warrant in the record” and (2) the agency’s explanation of its decision to determine whether the decision has a reasonable basis in law 21 iii. Determine if Chevron or Skidmore 1. Does it have force and effect of law? 2. Is it a substantial change 3. Is it unfairly hoisted onto the regulated community iv. Step Zero is before reading the law – that is the Mead case 1. Mead said that even if an agency’s interpretation of a statute is not entitled to deference under Chevron, it may still be entitled to deference under Skidmore according to the persuasiveness of the interpretation v. If Chevron does not apply, its Skidmore respect vi. An agency’s interpretation of the statute it administers is entitled to Chevron deference only when the agency’s interpretation has the binding force of law. Agency actions that lack the force of law, such as opinion letters, policy statements, and enforcement guidelines, are not entitled to Chevron deference. United States v. Mead vii. Chevron Deference 1. Formal agency – 556/557 2. Notice & comment RM viii. Skidmore Respect 1. Informal ADJ – and Ruling Letters 2. Guidance’s/memos 3. In Skidmore they reviewed an “interpretive bulletin” d. Deference to Regulatory Reading i. Strengthens Chevron ii. Should Chevron doctrine kick in? iii. The implicit gap is that Congress intended to give policy making/decision into the hands of the expert iv. Auer is when agency determines the reading of the regulation 1. Auer Doctrine 4 Kagan Criteria: a. Criteria 1 – Is there any ambiguity here? b. Criteria 2 – if yes, then determine if the agencies interpretation is out? c. Criteria 3 – Was agency view for litigation to win, or is this them exercising their regular duties? d. Criteria 4 – was this an agency’s expertise? v. Kisor – Vets who come back with a disability, such as PTSD. He got denied first. Then they added PTSD into their offering’s years later. He is asking for back benefits. Ad law issue is meaning of the word “relevant” in the regulation 5. Wrap up a. Substantial Evidence v A&C standards b. Court applied the hard look doctrine with A&C under the Chevron doctrine 24 c. When reading a statute, you are assessing what the rule of law is and courts do not need the help of agencies to clarify that D. Judicial Review of Questions of Fact or Policy Under the Substantial Evidence Test 1. Formal Adjudication a. Rule: A court should defer to a federal agency’s findings of fact if they are supported by “substantial evidence on the record considered as a whole” i. Universal Camera v NLRF: wants to unionize maintenance employees. Company is against it. Mr. Chairmen testified; Supervisor calls him a liar. Check Mr. Chairman’s file to see if he is a communist, Chairman calls a superior a drunk. Direct oversee of Chairman says to drunk guy Chairman is resigning. Chairmen gets fired. Chairman goes to NLRB claiming retaliatory firing. 1. Whole record – have to consider evidence that is for both side. Not just what backs the decision that was made below 2. The whole record must be given equal weight 3. When an agency changes its mind through the appeals look at everything with fresh eyes 4. The evidence is about veracity not relying on agencies expertise b. Rule: Supporting data is not necessarily required for a vocational expert to provide substantial evidence of other available jobs that justify denial of disability benefits i. Biestek v Berryhill: without supporting documentation there is the issue of undermining the evidence that it is not substantial evidence 2. 2-Standards of Review provided by the APA a. A&C Standard – Questions of Law i. Relaxed standard – they need to be acting arbitrarily and captiously to overturn – low bar ii. Not as deferential standard iii. Applies to informal RM and to hard look doctrine iv. Generally applicable review standard 1. On exam – if agency activity where its not formal RM or ADJ, and its neither policy making vehicle? Then use the generally applicable review standard of A&C v. When do you do A&C? You are challenging the agency, and the burden is on the challenger b. Substantial Evidence Review Standard – Questions of Facts i. Need to provide some substantial evidence on what the agencies decision is being discussed – its more rigorous standard ii. Not as a high hurdle of the agency iii. Applies to formal RM – 556/557 iv. Also, for when the statute says so – maybe in a hybrid setting 25 v. Applies to fact within the formal ADJ vi. When does this happen? Agencies decision must be backed on substantial evidence. So the burden is on the agency Chapter 3 – Availability of Judicial Review A. Standards of Review under the APA 1. Doctrines governing the availability serve 4 distinct functions: a. The particular court in which review is sought must be one that has legal authority to resolve the controversy b. The complaint must allege the violation of a particular legally enforceable duty by the defendant c. The particular complaint must be an appropriate person to present and prosecute such a claim d. Violation alleged must be one that the court has the practical ability to redress by some appropriate order 2. Jurisdiction a. The trend has been in favor appellate review, even for informal administrative actions in the interests of judicial economy 3. Reviewability a. The Supreme Court has read the APA as embodying a basic presumption of judicial review i. Applies only when agency action is the subject of the petition b. Presumption of review is rebuttable c. APA’s provisions relating to judicial review apply except to the extent that i. Statutes preclude judicial review; or ii. Agency action is committed to agency discretion by law 1. Prosecutorial Discretion a. Generally, the decision not to investigate or bring charges is traditionally considered immune from judicial rule b. Heckler v Chaney: People on death row petitioned FDA contending that the states use of the lethal injunction drug violated provisions of the FDA. Alleged that FDA should investigate and enforce their provisions. FDA declined in an opinion letter i. Court found that it was agency inaction and prosecutorial discretion, so it gave it more discretion ii. Agency Inaction will generally get more deference because: 1. Unlikely to impact 2. Allocation of resources are generally discretionary 3. Less focus in the process for judicial review and because of that there is no 4. Record to review 4. Standing 26