Justiciability
What are the requirements for injury-in-fact?
The injury-in-fact requirements are (1) concrete; (2) particularized; and (3) actual or imminent
What is the exception to the general rule that the President may remove executive officials "at will"?
Congress may limit the removal power to "for cause" for multi member commissions exercising quasi legislative/judicial functions.
What is formal rulemaking under the APA? What provisions govern?
-Formal rulemaking is the promulgation of new regulations using elaborate trial-like proceedings, similar to formal adjudication.
-Agencies rarely use formal rulemaking — in fact, they are unlikely to use it unless required to do so by their enabling statute, which is uncommon.
-The APA procedural requirements for formal rulemaking are in §§ 556-557 [same requirements on formal adjudication]
When do courts apply arbitrary and capricious review?
Everything OUTSIDE of formal adjudication [i.e., agency rulemaking and factfinding]
AT&T is upset that the FCC is giving favorable treatment to competitors regarding rate regulation and the tariff-filing requirement. AT&T wants to sue the FCC. Would AT&T have standing to sue?
-AT&T could have standing if it could show that it is injured by the agency action and that it is within the zone of interests in the sense that competitors’ interests are relevant to the regulatory scheme governing long distance telephone service. Since AT&T is in direct competition with the other companies, AT&T is probably injured by a loosening of regulatory requirements on its competitors.
-The more tricky question is whether competitors’ interests were relevant when the system of rate regulation was established. It is likely that such interests were relevant so that AT&T would meet the zone of interests test and have standing to challenge the FCC’s treatment of its competitors.
When is exhaustion not required?
(1) The agency procedure would provide an inadequate remedy
(2) Exhaustion would be futile
When can an agency adjudicate a private rights dispute?
When the agency acts as an "adjunct" with meaningful judicial review on questions of law.
+
Jarkesy Test:
(1) Does the claim resemble a traditional common law action?
(2) Are penalties legal?
*"Yes" to both = Article III court w/ a jury required.
If an agency uses formal rulemaking for promulgating a new regulation, is it exempt from the notice-and-comment procedures for informal rulemaking under APA § 553?
No. The requirements of APA § 553 also apply to formal rulemaking. The agency must still publish the notice of proposed rulemaking in the Federal Register, just as with informal rulemaking.
-The difference is that instead of parties submitting only written comments, in formal rulemaking the evidence will be submitted at the announced hearing.
What is the hard look doctrine and how is it applied?
-Courts look at:
(1) Expertise of the agency
(2) Available analytical tools
(3) Regulatory context
-Agencies must:
(1) Acknowledge the policy change
(2) Give reasons for the change
(3) Consider reliance interests
(4) Address contradictory factual findings
(5) Consider alternatives
Congress is concerned about the harmful effects of sugary soft drinks on children. It enacts a statute empowering the Food and Drug Administration “to enact regulations to protect children from the negative health effects of sugary drinks.” Several soft drink manufacturers challenge the statute on the grounds that, as the legislative branch of government, Congress, not an agency, must enact such regulations. Are the soft drink manufacturers correct?
A. Yes, because the consumption of sugary drinks substantially affects interstate commerce.
B. Yes, because the statute doesn’t give enough information about how the regulations should protect children.
C. No, because protecting children’s health is an intelligible principle that guides and limits agency discretion.
D. No, because Congress has power, under the NPC, to delegate its legislative authority to agencies in whatever way it believes is in the best interest of the Nation.
C
A is incorrect b/c the fact that the regulation substantially affects interstate commerce puts it within Congress’s authority under Article I but says nothing about whether Congress may delegate that authority to an agency.
B is incorrect b/c protecting public health is not too broad a category for delegation. [Whitman]
D is incorrect b/c if Congress chooses to delegate some of its legislative authority to agencies to promulgate legislative rules, it must provide an “intelligible principle” in the statute to ensure that agencies do not usurp Congress’s legislative responsibilities.
In Massachusetts v. EPA, the court said that states are entitled to "special solicitude" as sovereigns. In Biden v. Nebraska, this framework seemed to be applied. What does this term seem to mean?
When an instrumentality is state created, it is a "public instrumentality" performing a state's essential public function. Therefore, harm to the public instrumentality = harm to the State, so it can sue on its behalf.
What is the Mathews balancing test? When does it apply?
It applies to due process claims once the individual has identified a property interest.
(1) Private interest affected by the government action
(2) Risk of erroneous deprivation + the probable value of additional safeguards
(3) Government's interest [including fiscal and administrative burdens]
*If (1) and (2) outweigh (3) = additional process required
What is the substantial evidence test?
-APA § 706(2)(E) says that the substantial evidence test applies to agency decisions “subject to sections 556 and 557” of the APA — that is, to formal adjudication and formal rulemaking.
-The court reviews the agency’s WHOLE hearing record and decision and determines whether the result is supported by “substantial evidence” in the record. If so, the court should defer to the agency’s decision, even if it disagrees with the result on the merits.
What is the process for agency interpretation of its own statute?
Auer deference. There must be a:
(1) Genuine ambiguity
THEN
(2) an authoritative agency position;
(3) a fair + considered judgment;
(4) a reasonable interpretation; and
(5) the agency must have used its substantive expertise
There is a Department of Housing and Urban Development (HUD) rule requiring certain apartment buildings to meet fire safety standards. HUD brings an adjudication against Acme Apartments, alleging that some of Acme’s apartments lack proper emergency escape routes. The adjudication is held before an administrative law judge (ALJ), who rules against Acme and imposes a $10,000 penalty. Under applicable agency rules, Acme may appeal to the Secretary of HUD. If no appeal is brought, then the ALJ’s decision becomes final. Acme does not appeal to the Secretary. Instead, after the ALJ’s decision becomes final, Acme challenges the determination in court, alleging that the action is arbitrary and capricious. HUD responds that the challenge should not be heard because Acme has failed to exhaust its administrative remedies. Is HUD correct?
A. Yes, because parties must pursue a decision from the head of the agency before challenging agency action in court.
B. Yes, because the agency rule gave Acme the ability to seek a determination from the Secretary, and appeals provided by agency rule must be exhausted.
C. No, because the agency rule did not require Acme to pursue an appeal to the Secretary; the rule merely gave that option.
D. No, because it is up to the court to decide in each case whether exhaustion should be required as a matter of sound judicial discretion.
C
The APA creates a strong presumption of judicial review. What are the two exceptions to this?
(1) Statutory preclusion--can be explicit or implied. Implicit preclusion = reading into Congress's absence of express authorization to conclude that something is not authorized.
(2) "No Law to Apply" Test: when a statute provides no judicially manageable standards.
Under the "risk of error" in (2) of the Mathews balancing test, what do courts look at?
Easily determined, objective factors like age, education levels, or years of employment for low-risk scenarios under this factor.
Decisions based on accusations of wrongdoing (a credibility issue), sincerity, or ability are more subjective and therefore more prone to mistakes.
What are the procedural requirements for informal rulemaking?
APA § 553:
NOTICE — Publication of the proposed rule in the Federal Register
OPPORTUNITY TO COMMENT — A period (usually three months or more) for the public to submit written comments about the proposed rule; the agency can also hold public hearings if it chooses or if required by its enabling statute
PUBLICATION of the decision with a concise general statement of the basis and purpose of the rules, responses to comments, and so on
What is the major questions doctrine?
-Courts use when question presents an issue of vast political/economic significance
-To determine whether a MQ exists, courts look at:
(1) economic significance;
(2) agency consistency/history;
(3) congressional action/inaction;
(4) statutory "fit"
The Endangered Species Act requires the Secretary of the Interior to designate an endangered species’ critical habitat, a designation that limits the ability to develop the land in that habitat. The Act also says that the Secretary must consider economic impact in making such a designation and “may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area.”
Developer owns land that has been designated as critical habitat for a species of frog. He petitions the Secretary to exclude his land from the critical habitat. The Secretary refuses, citing the importance of preserving the species. Developer seeks judicial review of the Secretary’s not to exclude his land, claiming that the Secretary’s given reason does not address whether Developer’s land has to be among the lands designated as a critical habitat. Is judicial review available?
A. Yes, because under the APA judicial review is presumptively available, and the Endangered Species Act does not commit the matter to agency discretion.
B. Yes, because the Secretary’s actions are arbitrary and capricious.
C. No, because excluding an area from critical habitat is committed to the discretion of the Secretary.
D. No, because judicial review would violate the separation of powers and interfere with the Executive Branch’s authority to take care that the laws be faithfully executed.
A
This fact pattern is drawn from Weyerhaeuser Co. v. Fish and Wildlife Service. There, the Supreme Court held that judicial review was available to assess the legality of the Secretary’s decision.
B is wrong because the arbitrary-and-capricious standard is a standard for determining whether agency action is legal—not whether there will be judicial review. Whether there is judicial review is determined by asking whether there is law for a court to apply, or whether the decision in question is committed to agency discretion as a matter of law. In Weyerhaeuser, the Court held that the statute did contain such a standard because it required the Secretary to consider economic impact and the relative benefits of including or excluding the particular land from the critical habitat.
C is wrong because, although the Secretary does have discretion in deciding whether to exclude the land in question, that discretion is limited by the terms of the statute, which require the Secretary to consider economic impact and the relative benefits of including and excluding the land.
D is wrong because judicial review under the APA to determine the legality of such agency action does not violate the separation of powers.
Under the "no law to apply" test, there is a strong presumption against reviewing non-enforcement of agency action. What are the 3 ways that this presumption can be rebutted?
(1) Statutory guidelines for enforcement
(2) Clear legal error [e.g., a mistaken view of jurisdiction]
(2) Categorical non-enforcement policies [ones that look like rules]
How is a property interest identified?
To have a property interest in a benefit, a person must have a legitimate claim of entitlement to it.
This claim of entitlement must come from an independent source such as state law, or through custom or practice.
KEY = there must be a legal constraint on the government's discretion
How do we determine whether a rule is interpretive or a policy statement?
INTERPRETIVE:
-American Mining factors:
(1) Is there adequate legislative basis for enforcement without the rule?
(2) Did the agency invoke its general legislative authority?
(3) Does the rule effectively amend a prior legislative rule?
-If rule is clarifying existing obligations = interpretive. If rule is creating new obligations = legislative.
POLICY STATEMENT:
-Test:
(1) Does PS impose present rights and obligations?
(2) Does PS leave agency free to exercise discretion?
*If (1) No and (2) Yes = policy statement
What is the judicial review process of an agency's interpretation of a congressional statute?
-Loper Bright framework
-Q: Did Congress clearly delegate its interpretive authority?
If yes = A&C review
If no = Court does independent interpretation + Skidmore factors
(1) Expertise of agency
(2) Thoroughness of its conclusion
(3) Validity of its reasoning
(4) Consistency with earlier and prior pronouncements
Federal Aviation Administration issues what it calls a rule of procedure without notice and comment. According to the rule, airlines that fail to give passengers the required safety warning will receive a $5,000 fine for the first offense, with the penalty doubling for each successive offense. The relevant statute permits the FAA to make rules to promote safety in air travel, and empowers the agency to issue fines of up to $500,000 on airlines that violate such rules.
After a hearing, the FAA imposes a $20,000 fine on the Grace Ferguson Airline after finding the airline to have failed for the third time to issue the required warning. The airline protests that the fine is excessive in this case, pointing to various extenuating circumstances. The FAA responds that the rule does not provide for any consideration of extenuating circumstances. The airline challenges the fine in court, alleging that the rule should have been issued, if at all, after notice and comment. Will the airline’s challenge succeed?
A. Yes, because interpretative rules or rules of agency organization, practice, or procedure may not be applied in adjudications.
B. Yes, because the rule has been applied by the agency in a way that leaves very little room for discretion.
C. No, because the rule does not govern regulated parties’ primary conduct.
D. No, because the rule lacks legal effect.
B
Interpretative rules and statements of agency organization, procedure, or practice are exempt from notice and comment. The question in this case is whether the rule should be considered to be in one of those exempt categories or whether instead it should be considered a “legislative rule,” which would mean that notice and comment were required. The test for distinguishing different types of rules has not been well established.
In this case, it is likely (though not certain) that the rule would be considered “legislative.” The agency has shown a desire to treat the rule as definitively establishing the schedule of fines, rather than merely setting presumptive guidelines that would be applied in individual cases according to agency discretion. Therefore, this rule seems to have the full effect of a legislative rule, despite the agency’s attempt to label it otherwise. It is possible that a court would apply the “legal-effects” test, rather than asking about the rule’s effect on the agency. If the court applied the legal-effects test, the case would be a bit closer. The agency might try to argue that the rule lacks legal effect because the regulated party is free to argue that the agency should deviate from the rule in particular cases, making Choice D a plausible response. The agency’s behavior in this case, however, seems to demonstrate that it will not even consider such an argument. Thus, even if the agency were successful in arguing that the rule lacked legal effect, the airline’s fine would still be vacated because the FAA applied the rule as if it did have legal effect.