The APA
APA 553
Rule Making.
How long do you have to give between publication and a rule's effective date per 553(d)?
30 days
What is "ossification" as related to rulemaking?
Term for fossilized. As though rules become immutable due to the length of time and complexity of attempting to alter them through formal rulemaking processes.
Step Zero
Step 0 – Really two parts: First: Has Congress has given the agency the power to state proposition w/ the force and effect of law? Second: Has the agency actually done so?
Case resolved at Step One
Brown & Williamson
APA 554
Adjudications
Per 553(3)(A), when do the notice and hearing requirements of formal ruling not apply?
To interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.
OR
When the agency for good cause finds that notice and public procedure are inpracticable, unnecessary, or contrary to the public interest.
Where do rules first get published per APA 552?
Federal Register
If you fail in Step 0, then what?
Go to Skidmore: Agency rulings / interpretations / opinions are not controlling, but can provide guidance with their weight dependent on: Thoroughness, Validity of Reasoning, Consistency with earlier and later pronouncements (including lack of flip flops), and “all factors that allow it to persuade. (Scalia thinks this step is unneeded, as Chevron replaced Skidmore)
Chevron Step Two
Step 2 - If not, go with the agency, given greater expertise and accountability, if their decision is based on a permissible construction of the statute.
553(c)
Notice and Comment (triggers formal rulemaking)
702
Waives sovereign immunity, but also says no money damages (so injunctive relief).
In 706(e), Scope of Review, what does "unsupported by substantial evidence" mean?
“More than a scintilla” “Evidence on which a reasonable person would base a conclusion” not really a preponderance.
Briefs/litigation positions don’t get Chevron deference. If many agencies interpret, none get deference. No Chevron Deference for agency acting as a prosecutor.
Step Two Case
Entergy v. Riverkeeper – based on statute saying “best technology available,” Riverkeeper said choice of almost as efficient, but much, much cheaper standard was no good, since “best” is a term of art
556(e)
The court record must be the exclusive record for the decision. This is to quell concerns about ex parte contacts swaying agency decisions.
703
Creates residual authority to review in the courts
Universal Camera Corp. v. NLRB
United States Supreme Court case which held that a court will defer to a federal agency's findings of fact if supported by "substantial evidence on the record considered as a whole.
Chevron Step One
Did Congress address “the precise question” at issue (court enforcing what it sees as Congress’s decision.) Issues are “how clear is clear” and what tools do we use to determine that?
Once adjudicated under Chevron, can an agency re-interpret its own rules?
If the agency wins under Chevron, they can change the interpretation. If the agency wins under Skidmore (step zero), it would need to persuade the court that the new interpretation is actually better, since the court still technically has authority on the interpretation.
704
Limits review of actions made reviewable by statute or FINAL agency action for which there is no other remedy in court.
706 - this is a tough one
Per 706, Scope of Review, a court shall hold unlawful agency actions found to be:
(A) arbitrary and capricious, abuse of discretion, or not in accordance with law
(B) Contrary to Constitutional right, power, privilege immunity
(C) in excess of statutory JX, auth, limits, or short of statutory right
(D) without observance of procedure required by law
(E) Unsupported by substantial evidence in a §556 or §557 case or otherwise otherwise on the record case
(F) Unwarranted by the facts to the extent facts get de novo review in reviewing court.
Overton Park v. Volpe
Statute required the Secretary to demonstrate that there was no "reasonable and prudent" alternative to using federal funds to build the highway through public lands. Holding: While the Secretary was not required to make formal findings, the Secretary's sole reliance on litigation affidavits was inadequate.
J. Stevens' footnote to Step One.
Stevens says you use “traditional tools of statutory interpretation” to determine whether Congress has spoken to the precise issue or not.
What the heck is the actual point of Chevron?
Chevron sets forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference", to the point that the Court itself has used the phrase "Chevron deference" in more recent cases. The fundamental test applied by the court, when appropriate, is deferential: "whether the agency's answer is based on a permissible construction of the statute", so long as Congress has not spoken directly to the precise issue at question.