Administrative Law Outline
1) Intro
a) Agency=authority of the US
i) can be 1 person, can exist within larger agency
ii) Cts decide what entities are agencies
iii) Cong has authority to create agencies under the necessary and proper clause.
iv) Creates agencies with an organic statute
v) APA regulates operations of many federal agencies (5 U.S.C.)
b) Agency structure
i) single-headed usually executive (head removable by pres); multi-member agency usually independent (head removable with cause)—accountability
c) Londoner v. City and County of Denver (1908)
2) Scope of Judicial Review
a) Review of the Facts
i) Substantial Evidence Test for Formal Proceedings
(1) 5 U.S.C. § 706(2)(E)—review of facts in formal proceedings: “The reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (e) unsupported by substantial evidence in a case subject to §§ 556 & 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute . . . . Im making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”
(2) Universal Camera v. NLRB (1951)—formal finding must be based on substantial evidence—now must look at record as a whole (including findings by ALJ, even if not adopted by Bd)
(3) Kimm v. Dept of Treasury (Fed Cir 1995)—Kimm is ATF officer who droke kid to school in gov vehicle in violation of code. ALJ rules for Kimm, Agency rules against. Fed Cir revs and rules for Kimm—sig, lots of deference to ALJ, and Bd needs to explain why it rejects ALJ’s finding
(4) Laro v. NLRB (DC Ct Ap 1995)— union cleaning case where Laro takes over and fires union e’ees. ALJ finding adopted by Bd. Sig: when they adopt it the BoP stacks up. Ct ensures that Bd’s reasons are reasonable though.
ii) Applying the Substantial Evidence Test to Findings of Fact in Informal Proceedings
(1) Assn of Data Processing Service Org v. Fed Reserve (DC Cir 1984)—Subst ev=A&C, organic statute must be explicit to change SoR from APA. Standard for formal/informal procedures is “reasonableness.”
(2) Allentown (US 1998)—NLRB rule, that e’or must have good faith reasonable doubt about e’ees’ support of union before polling, is upheld on A&C standard, but their finding that the e’or lacked gf reasonable doubt is reversed on SubstEv, but Scalia says they are the same standard (reasonable jury) in dicta.
(3) Zurko (US 1999)—Fed Cir must apply APA’s Subs Ev SoR, b/c their precedent of using “clearly erroneous” was not unambiguously recognized in law. But they may use their expertise in scrutinizing the record for substantial evidence.
b) Review of the Law
i) APA— § 706(2)(C)—Cts overturn agency action “in excess of statutory jdxn, authority, or limitations, or short of statutory right.” (no SoR)
ii) Pre-Chevron
(1) Gray v. Powell (US 1941)—(5 yrs pre-APA) Coal price stabilization Act, RR trying to get exemption. Ct defers to DOI’s interp of “producer,” affirms interp of “sold” after de novo-like review.
(2) NLRB v. Hearst Publications (US 1944)—newspaper won’t bargain with newsboys’ union—Did Cong intend “e’ee” to be defined by CL (would make newsboys be indep K’ors) or by agency? Did agency correctly determine that newsboys are e’ees. Ct does de novo on Q1—purely legal question of whether CL defines e’ees. Says CL is unclear, so no. Q2 defer to agency’s expertise in its determination of factual issue.
(3) O’Leary (US 1951)—(APA now passed) Ct resolves the legal question—don’t apply CL def of scope of employment, all reasonable rescue attempts are in scope. What is reasonable is a question of fact, leave this to agency (they say it was).
(4) RULE FROM GRAY, HEARST AND O’LEARY: When the issue is one of pure interpretation, the courts are at least as well situated as are the agencies to determine the correct meaning of statutory terms, so agencies get no deference. When however, the issue is one of law application, and one must determine whether an ambiguous statute should be extended to cover a specific fact pattern, then the twin considerations of the twin considerations of agency expertise and probably congressional intent justify giving agency decisions of a level of deference comparable to the level afforded to agency factfinding.
(5) Packard Motor Car (US 1947)—Ct determines that foremen are employees and can unionize as a matter of law. Inconsistent with Hearst—they don’t defer b/c this time they say it’s a question of law. SIG: the law-fact distinction is untenable.
(6) Skidmore v. Swift (US 1944)
(a) Whether on call firefighters get overtime.
(b) When agency doesn’t have authority to administer statute, but offers opinion, you defer to the opinion to the extent that it is thorough, has valid reasoning, and is consistent…
iii) The Chevron Doctrine
(1) Chevron (US 1984)
(a) Is agency def of pollution “source” valid?
(b) (1) Has Cong spoken? If so, that’s the law. If the statute is silent or ambiguous on the specific question, then as long as the agency’s definition is reasonable, you defer. In resolving step one, you use traditional tools of statutory construction (FN 9).
(c) Ct looked to the statute as a whole (not just the section in question), the legislative intent, and the administrative history.
(d) Here, the term was ambiguous and the EPA’s bubble concept was reasonable so it’s upheld.
(e) At time it was not thought to change things, but DC Cir applied the strong interp…
(2) INS v. Cardoza-Fonseca (US 1987)—two standards for when AG is required to, or has discretion to w/hold deportation of alien. BIA used stricter standard for discretionary §, and said that the two standards were the same—S. Ct. reversed. Majority (Stevens from Chevron) engages in § construction, but Scalia’s concurrence says that this approach misinterprets Chevron: the § language is clear, so that governs, no need to look at anything else—and doesn’t like implication that if Ct can infer meaning in an ambig statute, that would trump an agency’s reasonable interpretation.
(a) SIG: Ct didn’t adopt hard interp of Chevron
(3) United Food (US 1987)—S. Ct. declines to review agency dismissal of an action. Majority relies on Cardoza-Fonseca’s statutory construction to find that the § is ambig; but Scalia (+4) concur that the Ct is not deciding authoritatively, but is deferring, that they are not using trad tools…
(a) SIG: after this, hard Chevron interp adopted. Ppl believe Scalia when he says that Cardoza-Fonseca did NOT remove purely legal questions from the Chevron two-step.
iv) The Applicability of Chevron
(1) Is Chevron the standard (who knows!?):
(2) Agency Interp of its own Regulations
(a) Seminole Rock (1945) and Auer (1997)—an agency interpretation of its own regulation is controlling unless it is plainly erroneous or inconsistent with regulation. Maybe greater than Chevron deference for agency interp of ambig statutory terms (but either interp is reasonable or not!).
(3) Constitutional Matters
(a) NO DEFERENCE
(4) Ct Opinions
(a) even if agency is entitled to deference in its interp of the statute or regulation that is at issue in the decision, the Cts do not defer to the agency’s interp of that opinion
(5) Legal Instruments (Ks, deeds, etc)
(a) No Chevron deference, but mixed results
(6) State Agencies
(a) even if interpreting federal law, they don’t get Chevron deference
(7) Agency Interpretations of statutes which it DOESN’T administer
(a) Chevron is only for “an agency’s construction of the statute which it administers”—generally means the substantive provisions of the agency’s organic statute.
(b) Wagner Seed—EPA can order clean up. Amendment allows companies to recoup, but agency interprets this to only apply to orders issues after § is passed. DC Cir applies Chevron deference, even though this is not the statute that the EPA “administers”
(c) Rapaport v. US Dept of Treasury (DC Cir 1995)—When agency shares responsibility for administering a statute with other agencies, the Ct reviews agency determinations/interpretations de novo b/c don’t want agencies filling in the gaps in an inconsistent manner.
(d) There is a Circuit split!
(8) Procedural Provisions
(a) If there is ambiguity as to whether an agency must conduct formal/informal rulemaking or adjudication, the DC Cir defers to an agency’s reasonable interpretation. The S.Ct. has not spoken directly on this though. Maybe it’s just for substantive law.
(b) Chemical Wasteland Mngmt—DC Cir applies Chevron to agency’s resolution of ambiguity
(c) Lynchberg College—O’Connor applied Chevron deference to agency resolution of procedural ambiguity, but she was not joined by other justices—they reserved the question.
(9) Criminal Statutes
(a) Cts do not defer to DOJ interps of federal criminal statutes. Rather, rule of lenity means that cts defer to interpretations of criminal Δ, rather than agency.
(10) Opinion and Ruling Letters (and beyond!)
(a) Christiansen (US 2000)—County wants to force sheriffs to take comp time, rather than pay overtime. DoL writes opinion letter that you need their prior consent to do this, but county ignores. S.Ct. says that county action is fine. (1) Opinion letters do not carry legal force so receive Skidmore, rather than Chevron deference (and here it’s not persuasive). (2) Statute is clear, so agency couldn’t interpret it this way anyway. [Souter Concur--§ unclear, would be valid interp if formal procedure] [Scalia Concur—Skidmore is dead; fails Chevron test b/c unreasonable interp] [Breyer Concur—would uphold agency on Skidmore]
(b) Mead (US 2001)—No Chevron def to interpretive rules.
(i) Customs “ruling letter” is an interpretive rule and so gets Skidmore deference. Whether Chevron deference is afforded depends on an explicit or implicit delegation of authority, and agency making rule in exercise of that authority, so more procedure that Cong delegated is greater indicia of delegation.
v) Interpretation of Regulations
(1) Seminole Rock (US 1945)—Ct defers to an agency interpretation of an ambig term in its own regulation, even though that interp was not the product of N&C rulemaking. (Aff’d in Auer)
(2) Arizona Grocery (US 1932)—agencies are bound by their own rules, and must interpret them in a plausible way.
(3) So, Admin interpretation of its own regulation is binding on the Ct (Seminole Rock) and the agency (AZ Grocery)
(4) Gonzales v. OR (US 2006)—OR law allows Drs to prescribe drugs to terminally ill patients for suicide. AG issues interp rule saying that suicide is not a “legit purpose” as req’d my DOJ reg of CSA, and that AG will revoke registration of Drs who prescribe drugs for suicide under public interest discretion. Ct says (1) no Auer deference b/c reg parrots statute, so question is re meaning of statute. (2) No Chevron deference of term “legit purpose” because he only has power to control by scheduling and only with N&C, and (3) No Chevron def of interp of “public interest” b/c he’s really criminalizing act, rather than just upholding pub interest, and he shares power with Secretary. Not persuasive interp under Skidmore deference.
vi) Chevron Step 1: Clarity Required to Avoid Deference
(1) Dole v. US Steelworkers (US 1990)—OMB wanted less warnings on chemical under paperwork reduction act. Ct says OMB’s interp of a statute was outside of it’s authority b/c § (“informational request”) is clear and does not include warnings. Looks at these factors to discern clarity of §: (1) statutory language; (2) canons of construction (here, surrounding words); (3) leg intent (policy); (4) leg history.
(2) Pauley v. Bethenergy Mines (US 1991)—§ prohibits DOL from making reqs for Black Lung benefits more stringent—does that mean by looking at eligibility overall, or at criteria individually? Ct defers b/c of this ambiguity and because the medical stuff is so complex.
(3) Brown & Williamson Tobacco (US 2000)—FDA interprets tobacco to be a drug b/c addictive qualities, so it can regulate it. Ct says term in ambiguous, but FDA interp on Chevron step 2 b/c if it’s unsafe it must be prohibited, and other §s imply tobacco is legal. SIG: for important issues, might be harder to show implied delegation, and look at body of legislation as a cohesive whole.
vii) Subservient statute/Jdxn?
(1) MCI v. AT&T (US 1994)--§ 203(a) requires communications common carriers to file tariffs w/ FCC and § 203(b) authorizes FCC to modify any requirement of § 203. Issue is whether FCC’s decision to make tariff filing option for all non-dominant long-distance carriers is a valid exercise of its modification authority. “Modify” is not unclear—it means less change than “change” which means you can’t make basic and fundamental changes in legislative scheme.
viii) De minimis
(1) Public Citizen (DC Cir 1987)—Act says that color additive may only be used after FDA finds it is not found to induce cancer. FDA found de minimis exception, but Ct says the clause explicitly lacks that exception.
ix) Retroactive regulations
(1) Bowen v. Gtown U Hospital (US 1988)—Clear Statement rule, by which Cts read any ambiguity in a statute/regulation against its retroactive application, supersedes Chevron deference.
x) 1st Amendment/Doctrine of Constitutional Doubt
(1) DeBartolo v. Florida Gulf Coast Building (US 1988)—illegal picketing raises 1st am challenge. whenever there is a serious constitutional challenge, the Ct resolves any ambiguity by in favor of the interpretation that avoids the constitutional issue, rather than deferring and resolving whether that interpretation is constitutional.
c) Review of Policy
i) Standard of Review of policy is in 706(2)(a)—A&C, abuse of discretion or otherwise not in accordance with law.
ii) The Hard Look Doctrine
(1) Policy determinations may be the result of:
(a) interpreting an ambiguity in an express delegation (e.g. setting the exact number in a range)
(b) combining policy and law (e.g. “park service shall build a tall fence”—agency’s power to decide how tall is implicitly delegated, and setting the height is a question of policy)
(c) deciding whether or not to act (e.g. agency determination on how to allocate its resources is a policy question. Note that it is very difficult to challenge agency inaction, but when you do it’s under the ‘policy’ standard)