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Question 1

Youngstown Sheet & Tube Co. v. Sawyer (1952)
(steel seizure)
(unconstitutional)
(Youngstown categories)

Answer 1

6-justice majority, 6 options, all agreed that Sec.’s seizure power must come from grant of power from President in Constitution or constitutionally enacted statute
• Black: president needs explicit, not inherent, authority to order seizure
• Clark, Burton: in emergency, Prez might have seizure power under Art. II; but Congress had anticipated emergency and enacted statutes, none of which gave Prez power
• Jackson: 3 situations:
o (1) Prez acts, Congress approves, or Prez has all power à president has power
o (2) Prez acts, Congress is silent à guess reasons for silence and what Congress would have said
o (3) president acts, Congress disapproves à most dubious of president’s power
• Vinson, Reed, Minton (dissent): failure of legislative action not probative on executive

Question 2

Marbury v. Madison (1803)
(delivering commissions)
(unconstitutional)
(political vs. legal acts)

Answer 2

Had a right to the commission (position created by Congress); law affords a remedy (presidential discretion only politically reviewable, but here individual rights depend on the performance, so there is a legal act); but SCOTUS doesn’t have jurisdiction
• Allows judiciary to order executive through mandamus BUT
• Distinguish between political vs. legal acts à hard if not impossible to get judicial review of political actions (exercise of discretion), but even some discretionary acts are susceptible to judicial review

Question 3

SEC v. Chenery Corp. [Chenery I] (1943):
(stock sales during merger)
(unconstitutional)
(contemporaneous explanation; vacate & remand)

Answer 3

Pre-APA review of discretionary actions. First, SEC said reorg would violate common law fiduciary duty, but majority disagreed; then, SEC said past legal precedent supported ruling, which was the only reason they gave.
• Agency action must be judged on reason given. Court won’t intrude on weighing reasons for action that agency hasn’t explored
• Standard remedy for agency’s failure to explain is vacate & remand. Just saying agency didn’t act with force of law when it acted; may still have legitimate basis, so gets to try again

Question 4

Art. I § 1 (Vesting Clause)

Answer 4

“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

• Root of 150 years of strong anti-delegation rhetoric but weakly applied

Question 5

Marshall Field & Co v. Clark (1892)
(Tariff Act)
(constitutional)
(factual determination vs. legal consequence)

Answer 5

Upheld Tariff Act (suspending favorable tariff treatments for nations without reciprocal treatments) because it allowed Prez to make factual determinations about countries, which Congress put into effect
• Vesting clause à presidential action not effective without tacit congressional approval
• Findings of contingent facts

Question 6

J.W. Hampton Jr. & Co. v. US (1928)
(another Tariff Act)
(constitutional)
(intelligible principle)

Answer 6

Most widely quoted formulation of old nondelegation doctrine. Tariff Act set some precise duties but left some up to president with a 30-day period for Congress to act to avoid effect. Congress didn’t have to prescribe all details
• **Intelligible principle à “If Congress shall lay down by legislative act an intelligible principle to which the person or body” authorized to set details is directed to conform, permissible delegation

Question 7

Panama Refining Co. v. Ryan (1935)
(oil products from reserves)
(unconstitutional)
(begins anti-delegation)

Answer 7

“Hot oil” provision authorized Prez to remove some things from interstate commerce. Struck down because Congress had not set any “policy, has established no standard, has laid down no rule” for exercise of power
• No guidance at all

Question 8

A.L.A. Schechter Poultry Corp. v. US (1935)
(poultry industry codes)
(unconstitutional)
(begins anti-delegation)

Answer 8

4 months later, struck down bill that gave Prez authority to approve industry codes re: fair competition submitted by trade groups because insufficient criteria
• No procedural safeguards
• Frequently discussed as private, rather than executive delegation (whether Congress can transfer Art. I power to private people)
• Since Schechter, Congress has not invalidated a single statute on the basis of excessive delegation.

Question 9

Yakus v. US (1944)
(post-war price control)
(constitutional)
(back to intelligible principle)

Answer 9

Post-war price controls. Distinguished from Schechter because of narrower purpose, that basis was “sufficiently definite and precise” to allowed determination of whether Prez followed
• Back to “intelligible principle”; even a very general intelligible principle is constitutionally sufficient

Question 10

Whitman v. American Trucking Ass’ns, Inc. (2001)
(EPA NAAQS)
(constitutional)
(no constitutional avoidance; within bounds of permissible delegation)

[modern non delegation]

Answer 10

2 questions were (1) where CAA delegates legislative power to EPA and (2) whether EPA can consider implementation costs. Court reached second question first (constitutional avoidance unavailable here) and said cannot consider cost; then found permissible delegation
• “Well within the outer limits of our nondelegation precedents…Even in sweeping regulatory schemes we have never demanded that statutes provide a ‘determinate criterion’ for saying ‘how much of the regulated harm’ is too much.”
• Scalia also considered the power exercised executive power, because it was permissibly delegated

• Stevens, Souter: concur in part, but would call the power legislative and still approve (Scalia says power is executive because of the delegation; but call it what it is)
• Thomas: (hints at non-delegation revival) concurring, noting that there are some cases where, even with intelligible principle, significance of delegated decision is so great as to make delegation impermissible

Question 11

Industrial Union Dept. v. API [The Benzene Case] (1980)
(carcinogens in workplace)
(unconstitutional interpretation)
(constitutional avoidance à don’t assume congressional intent to delegate impermissibly)

Answer 11

OSHA allows Sec. of Labor to regulate occupational exposure to benzene; question of whether showing benzene to be carcinogen is sufficient basis for allowing most stringent regulation (“reasonably necessary” vs. “adequately assures”). Court holds that statute is ambiguous, Congress couldn’t possibly have intended to delegate so much power, so less restrictive standard applies
• Applying constitutional avoidance: “in the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Sec. the unprecedent power over American industry” that gov’t argues, because that would be a “sweeping delegation” (cites Schechter)

Question 12

Gundy v. US (2019)
(SORNA applicability)
(constitutional)
(majority restates Whitman; other opinions show divide)

Answer 12

Whether AG gets to decide when to apply SORNA registry requirements apply to past offenders, or whether this is impermissible delegation to AG. Court holds that there was an intelligible principle for implementation/enforcement
• Alito, concurring: hints at willingness to reconsider 84 years of precedent (but in context of 8-member Court, concurs). “Would be freakish to single out the provision…for special treatment,” and this fits with precedent
• Gorsuch, Roberts, Thomas, dissenting: again hints at non-delegation revival; we’ve undermined democracy for decades, we need to stop excessive delegation. “We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.” Single executive branch infringing liberty of individuals

Question 13

• Non-delegation arguments after Whitman:

Answer 13

o Argue lack of intelligible principle
o Argue that canon of constitutional avoidance is present
o Rely on APA (not unconstitutional, but violates APA)
o Look at over-delegation of legislative power
o Look at delegation to private parties (Schechter)
o Change underlying statute

Question 14

Nixon v. Administrator of General Services (1977)
(Nixon’s presidential papers)
(constitutional)
(Nixon balancing test)

Answer 14

Nixon made a deal on resignation that all his records would be destroyed; Congress promptly enacted a statute to prohibit that; screening with another executive official to return private and set terms for eventual public access to the rest. Nixon argued this violated separation of powers (legislative intruding on executive to determine what to do with executive docs)
• Test: “in determining whether this Act disrupts the proper balance, look to the extent to which it prevents the executive branch from performing its assigned constitutional functions.” Here, no problem à everyone viewing docs is executive, Nixon was rights to private materials
• Why wasn’t this applied in Whitman? Argument that Congress has undermined executive by burdening its ability to discard records; doing things to hobble other branch is the trigger for balancing test.

Question 15

INS v. Chadha (1983)
(vetoing AG’s order suspending deportation)
(unconstitutional)
(no exercise of legislative power by one house)

Answer 15

Law allowed AG to suspend deportation, but then resolution by either house could veto AG’s decision.
• Majority (Burger): acted to alter someone’s legal status without bicameralism/presentment à House cannot act alone (few exceptions)
• Powell, concurring: should decide more narrowly (could say Congress deciding based on statute is judicial power, which only Art. III court may exercise)
• White, dissenting: Congress delegates power to agencies, why not to part of itself? But this doesn’t get support

Question 16

Hayburn’s Case (1792)
(veterans’ benefits)
(unconstitutional)
(no admin review of court decisions)

Answer 16

Statute that gave courts ability to rule on veterans’ benefit issues but subjected court decisions to review by Secretary (admin review of judicial decisions). Held unconstitutional
• Judicial power belongs only to Art. III courts; not subject to review by another branch
• Outcome could be reviewed, but must be final and binding on parties; cannot be provisional judicial judgment subject to executive repudiation

Question 17

Crowell v. Benson (1932)
(Longshoremen’s Comp to EEOC Art. I court)
(constitutional)
(private vs. public rights)

Answer 17

Act allowed EEOC to adjudicate claims under Longshoreman’s Act, statute created Art. I courts for these claims
• Public rights (individual vs. gov’t) can go to Art. I courts; private rights can only go to Art. III courts
• Upheld theory that agency decisions can be subject to review by Art. III courts

Question 18

Northern Pipeline Const. Co. v. Marathon Pipe Line Co. (1982)
(Ch. 11 judges, civil cases)
(unconstitutional)
(only Art. III courts get private rights; 2-prong test)

Answer 18

Bankruptcy Act of 1978 gave much more power to bankruptcy courts (all civil proceedings related to Ch. 11 cases including state law); wide variety, everything but criminal. Jurisdiction squabble in a case tangentially related to bankruptcy proceeding. Art. III courts must retain their essential attributes of judicial power. Political independence of judiciary, which bankruptcy judges lack
• Only 3 categories of delegation to non-Art. III courts: (1) territorial courts; (2) court martial/military; (3) administrative adjudications and Congress for “public rights.”
• 2-element test for “public rights”: (1) gov’t has to be party; OR (2) matter has to be kind that would historically have been decided by legislature/executive (“public rights doctrine,” from Murray’s Lessee) (pt. 2 is not sufficient à ex. criminal).
o This is an easy case because gov’t is not a party
• Distinction from Crowell à gov’t was not a party, but it was about federal law, so the findings of the bankruptcy judge were reviewable by a district court judge

Question 19

Thomas v. Union Carbide Agricultural Prods. Co. (1985)
(pesticide registration arbitration)
(constitutional)
(public vs. private rights)

Answer 19

Act allowed EPA to rely on test data from registrants for future competitors; competitors had to compensate original registrant, with binding arbitration for any disagreement; arbitrator’s decision reviewable only for fraud/misrepresentation/misconduct. Court held constitutional
• “Congress may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by Art. III judiciary”
• Ignored Northern Pipeline because
o Congress made complex regulatory scheme
o Didn’t threaten independent judiciary
o Limited judicial review satisfied due process

Question 20

CFTC v. Schor (1986)
(agency adjudicating counterclaims from complaints)
(constitutional)
(balancing test, public vs. private only a factor)

Answer 20

CFTC empowered itself to adjudicate counterclaims arising from transactions under its authority for consumer vs. trader. Consumer argued that adjudication of counterclaim against trader by CTFC was permissible. Court resolved a jurisdictional issue and then held that this was permissible; won’t overturn entire congressional scheme. Public vs. private is pragmatic, not talismanic
• More like Crowell, unlike Northern Pipeline’s broad jurisdictional grants; counterclaim jurisdiction is limited to expertise of agency, jurisdiction only with consent of claimant
• Factors: (1) extent to which normal Art. III powers are saved to courts vs. exported to other bodies; (2) origins/importance of right to be adjudicated (public vs. private right); (3) concern that drove Congress to depart from Art. III requirements.

Question 21

Art. II Sec. 2 cl. 2 (Appointments Clause)

Answer 21

“The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

• Distinction between principal vs. inferior officers à controls who gets to appoint/control

Question 22

Buckley v. Valeo (1976)
(FEC appointments)
(unconstitutional)
(defines “officer”)

Answer 22

FEC members have powers of administering and enforcing the FEC Act (contribution limits, etc.). Question of constitutionality because of appointment. Court held unconstitutional because not appointed by Prez subject to Appointments Clause
• “Any appointee exercising significant authority pursuant to the laws of the US is an ‘Officer of the US’ and must, therefore, be appointed in the manner prescribed.”
• Extensive rulemaking and adjudicative powers (notes that Congress is allowed to put its investigative power into other bodies)
• FN for distinction between employees and officers but not raised
• Hypo: Congressional employees? Prez has responsibility “unless herein otherwise provided” and Art. I gives Congress power to appoint own officers; doesn’t preclude Congress from creating statutory provisions that its officers will carry out for it

Question 23

Freytag v. Comm’r of IRS (1991)
(Tax Court CJ appoint judges)
(constitutional)
(Art. I Court not department)

Answer 23

Tax Act authorized Tax Ct. CJ to appoint “special trial judges” to assist judges. Can participate in enumerated category of cases. Questioned CJ’s power to appoint STJs/whether they were officers. Held constitutional
• They were (inferior) officers, but properly appointed by CJ because tax court is a “court of law” per Appointments Clause. Inferior officers can be appointed by a “department head,” Tax Court isn’t a department but is a “court of law” within Appointments Clause.
• Scalia, O’Connor, Kennedy, Souter, dissenting in part: would find Tax Court department; comes down to identity of officer, not the kind of power being exercised (department is broader definition than majority thinks)

Question 24

Lucia v. SEC (2018):
(ALJ appointments)
(unconstitutional)
(defines “officer”)

Answer 24

Question of whether SEC ALJs are “officers” (and therefore improperly appointed because not under Art. III; appointed by SEC “staffers”). Held unconstitutional à they were officers and not properly appointed
• Officer is someone whose work is “continuing and permanent” and exercises “significant authority pursuant to the laws of the US.” à Extent and permanence of work. Freytag decides this case
• Thomas, Gorsuch, concurring: Freytag only defines what is sufficient to make someone an officer, does not define what is necessary (would resolve on original public meaning, including people who only exercise ministerial duties)

Question 25

Art. II Sec. 3 cl. 5 | Take Care Clause

Answer 25

“…[Prez] shall take care that the laws be faithfully executed…” • Gives the Prez responsibility for and authority over the actions of Officers • How far can this direction go? Different opinions from early AGs

Question 26

Wirt, AG opinion (1823) | LESS intervention

Answer 26

Monroe sought advice on revising Treasury Department’s settlement of account of a former military officer. Wirt said Prez was powerless to review à Congress assigned the role, President can only ensure faithful execution • President cannot intervene to correct improper subordinate analysis/change discretion

Question 27

Taney, AG opinion (1831) | (MORE intervention)

Answer 27

Whether Prez could direct prosecutor to discontinue a prosecution he believed to be legally improper. Taney said Prez could do this à “must be derived from the general supervisory powers which belong to his office.” • Reviewing officers’ discretion is necessary to ensuring faithful execution; right and responsibility to ensure that he thinks law is being followed faithfully

Question 28

Myers v. US (1926) (postmaster) (constitutional) (Prez can remove inferior officers by himself)

Answer 28

Myers was forced to resign; statute says postmasters “may be removed by the Prez by and with the advice/consent of Senate and shall hold their offices for 4 years unless sooner removed or suspended according to law.” Senate didn’t consent to removal, so if statute is valid, improperly removed. Court held Prez has power to remove inferior officers without a/c of Senate (statute unconstitutional, removal stands) • Prez better informed than Senate about reasons for removal (knows his work) • Unitary executive theory: single Prez, fortified as much as possible about Congress; must be able to control all execution or debilitated in a way Framers didn’t intend (// Taney) • Might be some duties so peculiarly/specifically committed to discretion of particular officer (quasi-judicial)…Nager doesn’t know what this means but it’s interesting • “The power to remove inferior officers, like that power to remove superior officers, is an incident of the power to appoint them, and is in its nature an executive power.”

Question 29

Humphrey’s Executor v. US (1935) (FTC Comm’r) (unconstitutional) (Prez does not have all power to remove quasi-legislative/quasi-judicial officers)

Answer 29

Significant 9 years (Great Depression, New Deal, court packing threat). Hoover appointed to FTC for 7 years, Roosevelt asked to resign 2 years later, then removed him. FTCA says comm’r may be removed “for inefficiency, neglect of duty, or malfeasance in office.” Court held statute limited Prez’s removal power and was constitutional • Myers was about purely executive officers; this is a quasi-legislative/quasi-judicial position, so it is constitutional to limit Prez removal power à character of office is key • FTC is a “separate body of experts,” has its own power (except in its selection), intention was to limit removal o “Headless fourth branch” – agencies that are part of the gov’t that the Prez doesn’t control (people who aren’t exercising any executive power so Prez can’t remove”

Question 30

Wiener v. US (1958) (War Claims Comm’r) (unconstitutional) (Prez vs. independent comm’r)

Answer 30

War Crimes Comm’r removed 6 months before expiration of commission, but statute did not mention removal. Court held unconstitutional because intrinsic judicial nature of role. • Congress made Comm’n independent, which precludes Prez from influencing particular claims, must also mean Congress didn’t want Prez to have removal power (cites Humphrey’s Executor) • Functional approach in deciding whether agency is “independent”

Question 31

Bowsher v. Synar (1986) (Comptroller General removal and power) (unconstitutional) (Congress can’t have removal power of executive officers)

Answer 31

Gramm-Rudman-Hollings Act eliminating deficit required Comptroller General to send recommendations to Prez, who then had to issue sequestration order. CG was removable by Congress independently or Prez for specified reasons. Congressman Synar argued that this was unconstitutional for (1) non-delegation; (2) separation of powers, argument that CG was Executive by subject to removal by Congress, not Prez; (3) separation of powers, argument that CG was issuing orders to Prez • “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Effectively a legislative veto, can’t reserve that kind of power over executive • Cannot give independent discretion to CG, removed from Prez. To the majority, doesn’t matter that duties are discretionary vs. ministerial, because still engaged in execution • Stevens, Marshall, concurring: legislative officer exercising some legislative and some executive power (like other independent agencies) à “chameleon-like quality.” Cannot delegate legislative power to someone who can avoid separation of powers and checks by Executive. Cannot delegate power and retain independent control.

Question 32

Morrison v. Olson (1988) (IC after EPA Superfund/Reagan debacle) (constitutional) (inferior officer test; new test for removal limitations)

Answer 32

Challenge to independent counsel (post-Watergate version). Controversy over EPA’s administration of Superfund; claim that executive docs were subpoenaed by House committees, Superfund Administrator ultimately convicted of perjury. Morrison appointed as IC, and Olson challenged constitutionality of her appointment (she had “full power and independent authority to exercise all investigative and prosecutorial functions and powers” of DOJ). AG had no control over IC (only removal is impeachment, conviction, or “good cause, physical disability, mental incapacity”/other impairment of performance). Limited accountability to Congress. • Appointments Clause: constitutional because IC is an inferior officer, so no appointment problem. Four factors for inferior officers (test #1; see also Edmond for test #2) o (1) subject to removal by higher executive officials (at least in some way by AG) o (2) performs only certain, limited duties (no policymaking, no administrative) o (3) limited in jurisdiction (AG has to ask DC Cir to give her jurisdiction) o (4) temporary appointment (single task, commission ends) • Art. III: Congress can give appointment power to judiciary, so no issue here; not unlimited discretion, related to factual circumstances for seeking IC’s commission. Jud • Removal limitations: leaves removal in the hands of the executive (// Humphrey’s, Wiener, unlike Myers, Bowsher), no aggrandizement. Doesn’t matter whether power is “purely executive” but how much it restrains the Prez (here, not that much – limited jurisdiction, tenure, little restriction on “faithfully execute”) • Scalia, dissenting: (this dissent changed the debate; WashPo called for sunsetting the Act, Court adopts language in Free Enterprise). Interferes with presidential discretion, irrelevant how much à weakens presidency. Not an “inferior officer” because no supervisor to influence discretion. “Open invitation for Congress to experiment” o Principal officer: someone independent of another elected official

Question 33

Seila Law LLC v. Consumer Protection Bureau (2020) (unconstitutional) (distinguishes Humphreys and Morrison)

Answer 33

• Congress established the CFPB -- independent regulatory agency tasked with ensuring consumer debt products are safe and transparent. Powers are rulemaking, enforcement, and adjudicative. • CFPB lead by single director; 5 year term; President may remove from office only for "inefficiency, neglect of duty, or malfeasance in office" • Decision: Violation of removal power (separation of powers) • This is different than Humphreys because this is not like the FTC in that case o The single director is not a "body of experts" o Cannot be considered "non-partisan" in the same sense as a group of officials drawn from both sides of the aisle • Logic of Morrison does not apply o Director is not an inferior officer o While the IC in Morrison had prosecutorial power, it was limited to certain government actors – here it affects millions of private citizens • After this case***: o President can remove principal officers at will o Not clear on inferior officers

Question 34

``` Free Enterprise Fund v. PCAOB (2010) (Sarbanes-Oxley Oversight Board) (unconstitutional) (double layers of protection) Free Enterprise Fund v. PCAOB (2010) (Sarbanes-Oxley Oversight Board) (unconstitutional) (double layers of protection) ```

Answer 34

PCAOB is 5 members with staggered 5-year terms, overseen and removable by SEC; a private non-profit, members neither “officers nor employees” by statute. But SEC Comm’rs are also insulated from presidential removal (double protections from presidential removal). Court held double protection unconstitutional • Removable only for good cause, and Prez can’t decide whether good cause exists; diffuses electoral accountability, subverts faithful execution. o Applies Edmond/Scalia test • SEC is a department and SEC Comm’rs are department heads; Scalia’s Freytag dissent

Question 35

Bd. of Regents of State Colleges v. Roth (1972) (untenured poli sci prof) (constitutional) (no balancing test for application à look to nature of interest)

Answer 35

Roth was hired for 1 year, informed he wouldn’t be rehired at the end. No reason, no opportunity to challenge. He argued that this infringed on his DP rights because (1) not rehiring was punitive to statements criticizing university and (2) failed to give him DP. Court held no protected DP interest. • District court used a balancing test but wrong; “to determine whether DP apply, we must look not to weight but to the nature of the interest at stake.” No wooden distinction, but still some boundaries o Liberty à contract denial not based on a charge, not impugning his good name. Might be circumstances that implicate liberty but not here (finding liberty interest in Constitution). Reputation as interest. o Property à “must have a legitimate claim of entitlement to” something to have property interest. Created & defined by existing rules/understandings from sources like state law (ex. Goldberg v. Kelly, state welfare recipients were entitled). Here, no property right. (Leaves definition of property rights to other bodies of gov’t)

Question 36

Perry v. Sindermann (1972) (teacher de facto contract?) (remand) (nature of interest)

Answer 36

Decided same day as Roth. Remanded to determine whether he did have a de facto contract such that he had a legitimate claim of entitlement (could be state law)

Question 37

Londoner v. Denver (1908) (street paving tax) (unconstitutional) (small number, big effect) -maybe not really covered??

Answer 37

Local board had to determine taxation for paving a street • “A relatively small number of persons…all exceptionally affected, in each case upon individual grounds” à had right to a hearing

Question 38

Bi-Metallic v. State Bd. of Equalization (1915) (increased tax prices for whole city) (constitutional) (applies to more than a few people)

Answer 38

State Board increased valuation of all taxable property in Denver by 40%, with no right to a hearing; suit to enjoin. o “When a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption.” o Electoral power over rulemakers, so there is a remedy available, just not through this injunction

Question 39

Goldberg v. Kelly (1970) (welfare denial) (unconstitutional) (balancing test & what rights are due)

Answer 39

NY residents receiving aid under federally funded plan; state administrators terminated without prior notice or hearing rights. Gov’t argued they were entitled to process pre-deprivation, citizens argued they were still eligible but were unable to defend until after right was taken away. Court held this violated DPC. All parties agreed benefits were property, so court focused on interest-balancing • Was process due? Individual benefits were subsistence, essential for life; gov’t benefits were cost/efficiency. Individual interest > gov’t interest in welfare context. • What process was due? Didn’t need to be quasi-judicial trial, interests in efficiency. “Fundamental guarantee is to be heard, at a meaningful time and in a meaningful place à timely and adequate notice detailed reasons and effective opportunity to defend by confronting any adverse witnesses and presenting own witnesses and evidence orally.”

Question 40

Mathews v. Eldridge (1976) (disability denial) (constitutional) (factors in balancing private vs. gov’t interest) Modern test

Answer 40

Eldridge got disability benefits, but then dispute about continued entitlement. Process allowed him to submit additional info in a written response before notifying him of final decision to deny him benefits. Court held process was proper • Three factors in process balancing: (1) nature of private interest affected by gov’t action; (2) risk of erroneous deprivation through procedures used and probable value, if any, of additional safeguards; (3) gov’t interest, including function involved and fiscal/admin burdens • Application: (1) here, could get retroactive benefits, so only interest in uninterrupted benefits (small); (2) burden of adding pre-termination procedure would be substantial, would take money away from benefits (high); (3) erroneous deprivation low à good faith deference to administrative officials; here, regularly got written records from doctors, etc. (low) • “All that is necessary is that the procedures be tailored in light of the decision to be made, the capacities and circumstances of those who are to be heard.” This comports with DP

Question 41

Cleveland Bd. of Educ. v. Loudermill (1985) (gov’t security guards fired) (unconstitutional) (DPC, not statute, defines process required)

Answer 41

Security guard stated he’d never been convicted of a felony, but 11 months later employer discovered he had. Dismissed for lying on employment app, not allowed to appeal charge, but he was a civil servant, could be terminated only on showing of cause. Gov’t argued that all the process guaranteed by statute had been satisfied. (related case of someone fired for failing eye exam) • Court held that “property cannot be defined by procedures provided for its deprivation…The right to due process is not conferred by legislative grace, but by constitutional guarantee.” Then analyzed what process is due • Must use balancing test laid out in Eldridge. “The essential requirements of due process are notice and an opportunity to respond.” (1) oral/written notice of charges, (2) explanation of employer’s evidence, and (3) opportunity to present own side. • Rehnquist, dissenting: this was a gov’t entitlement, not a property right (so no DP applies)

Question 42

North American Cold Storage Co. v. Chicago (1908) | constitutional

Answer 42

Seizing spoiled meat from warehouse. Unanimously holds no pre-deprivation process required

Question 43

Federal Deposit Ins. Corp. v. Mallen (U.S. 1988) | constitutional

Answer 43

FDIC authorized to suspend summarily officer of insured bank who has been indicted for felony involving dishonestly or breach of trust; hearing need not be given until 30 days after suspension, may not be concluded 60 • No violation of due process; “important govt. interest + assurance deprivation is not baseless = justifies postponing oppt. to be heard • Faith in bankers impt. to entire economy (could cause run on banks)

Question 44

Gilbert v. Homar (1997) | constitutional

Answer 44

Suspension without pay of university police officer who was arrested and charged with felony. • Cuts back on Loudermill. Court distinguished (severity, effect on employee à merely a suspension, didn’t have to be without pay); and he was charged, so employer wasn’t deciding whether there was sufficient evidence

Question 45

Wong Yang Sun v. McGrath (1950) (deportation to China) (violates APA) (pre-APA abuses; relationship to DPC)

Answer 45

Deportation of Chinese national conducted before immigrant inspector who was also involved in investigation leading to prosecution (combining prosecutory and adjudicative functions in same case). Question of whether APA applied. Court held APA applied and hearing requirements must be met • Even though organic statute doesn’t say formal adjudication required, would be unconstitutional without formal adjudication, so applies constitutional avoidance (“otherwise compelled by law,” compelled by DPC) • Purpose of APA: (1) greater uniformity of procedure & practice among diverse agencies; (2) to “curtail and change practice of embodying in one person the duties of prosecutor and judge.” o Here, didn’t meet purposes of the APA because combined roles

Question 46

NLRB v. Wyman-Gordon Co. (1969) (employer duties to unions) (meets APA) (structure of APA)

Answer 46

NLRB tried to compel an employer to provide union organizers with roster; order was unreasoned, recited earlier decision in another case (Excelsior Underwear; announced the rule but didn’t apply it to Excelsior, said it was prospective). W-G claimed that NLRB was applying a rule that it had not adopted through rulemaking. Court held Excelsior had made a rule, not an adjudication, but still affirmed the application to W-G • Definition of a rule: “agency statement of general applicability and future effect describing agency law.” o Distinction is not the announcement of law, but whether applied immediately (adjudication) or prospectively only (rule) • Board could decide to use rulemaking or adjudication to announce agency position. o Chose not to remand because agency would just do the same thing; futile exercise • Harlan, Douglas, dissenting: NLRB violated APA twice (promulgating rule without complying with APA; then summarily applying to W-G). 6 votes say invalid rule, but 7 votes say valid order. o Invalid to apply to WG (Chenery I à evaluate NLRB’s action on basis it gave, which was invalidly following Excelsior)

Question 47

Vermont Yankee Nuclear Power Corp. v. NRDC, Inc. (1978) (nuclear plant rulemaking) (meets APA) (relationship to DPC/organic law)

Answer 47

Nuclear rulemaking re: environmental effect. Agency approved procedures it used at hearing (no discovery/cross, but docs available, all participants had opportunity to present position with counsel, written & oral statements received/incorporated to record, public transcript, 30 days to supplement). NRDC objected to outcome and procedure. Court held courts cannot add additional procedures not required by APA/organic law • On the DC Cir., Judge Skelly Wright was requiring more procedure than the APA in rulemaking proceedings (cross-exam, discovery). • “Absent constitutional constraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.” o Reasons: (1) don’t want to force agencies into formal process; (2) have to rely on what was before agency at time of decision, no Monday morning quarterbacking; (3) adequate judicial review o “Constitutional constraints/extremely compelling circumstances” à Londoner

Question 48

US v. Florida East Coast Ry. (1973) (railroad per diem rates) (meets APA) (“hearing” in statute doesn’t mean formal rulemaking)

Answer 48

2 RR companies sought to set aside per diem rates from ICC rulemaking (intended to get more freight-car workers). RRs objected at informal conference with agency, under impression formal hearings would follow. But ICC published tentative decision, allowed 60 days for written statements, and gave final rule without hearing (paper record only). Court held that “hearing” language of organic statute doesn’t require APA hearing/formal process (“hearing” is not a term of art). • Statute written before APA, congress itself prescribed procedure, didn’t include oral exam/cross-ex/oral arg. • Even within 553(c), agency can proceed on paper record if no party is “prejudiced thereby.” (Need (1) specific statutory mandate of formality and (2) prejudice to party). Cites Bi-Metallic, applies broadly

Question 49

Seacoast Anti-Pollution League v. Costle (1st Cir. 1978) (discharging heated water into estuary) (violates APA) (need not say “on the record” à public hearing is trigger for formality)

Answer 49

EPA allowed PSCO to discharge heated water (permit + exemption). In non-adjudicatory hearing before ALJ, recommended permit; regional administrator reversed; newly-appointed administrator appointed 6 in-house advisors for technical review panel. Panel granted permit. Administrator said hearing if both parties asked; P asked, but administrator denied hearing and announced final decision granting permit. Question of whether formal process was required. 1st Cir. held formal adjudication was required • Don’t need the precise words “on the record”; SCOTUS rejected in Florida East Coast. Instead, “turns on the substantive nature of the hearing Congress intended to provide.” o Administrator must make specific factual findings à adjudication o Plaintiff was there to protect the public (constitutional avoidance à wouldn’t have intended without public hearing) • Purpose of informal hearing = excluding gov’t functions that would not have been regarded as adjudicative, but just business programs (ex. loan programs)

Question 50

Seacoast Anti-Pollution League v. Costle (1st Cir. 1978) (discharging heated water into estuary) (violates APA) (because formal adjudication, improper to include info not properly in record)

Answer 50

(As above, held that formal process was required) • Distinctions from rulemaking hearings: rulemaking carries presumption of informality (witnesses are not only source of evidence; bringing new info, but agency’s decision doesn’t have to rest on input). So less importance on absence of “on the record” in adjudicatory. • Supplement submitted by single party: Administrator couldn’t rely on because not part of official record, and this was a formal proceeding. Also error not to hold hearing receiving responses to request for information, so supplement was not properly part of record. • Participation of technical review panel board: their participation was proper, especially where highly technical, but cannot add things to Report that aren’t in record • Remand because Report contained info not properly in record (supplement and review panel report)

Question 51

Citizens Awareness Network Inc. v. United States (1st Cir. 2004) ("formal" refers to hearings that need to be conducted pursuant to 5 USC 555-557) [concurrence]

Answer 51

For an on-the record adjudication required by 554, the procedures can be reduced to 10 points o Agency must give notice of legal authority and matter of fact and law asserted (554b) o The oral evidentiary hearing must be presided over by an officer who can be disqualified for bias (556b) o Presiding officers cannot have ex parte communications (554d, 557d(1)) o Parties are entitled to be represented by attorneys (555b) o The proponent of an order has the burden of proof (556d) o A party is entitled to present oral or documentary evidence (556d) o A party is entitled “to conduct such cross-examination as may be required for a full and true disclosure of the facts” (556d) o Orders can be issued only on consideration of the record of the hearing (556d) o The transcript of testimony and exhibits is the exclusive record for decision and shall be made available to parties (556e) o The decision must include “findings and conclusions, and the reasons for basis therefor, on all the material issues of fact, law, or discretion presented on the record” (557(c )(3)(A))

Question 52

Withrow v. Larkin (1975) (pulling medical license granted thru reciprocity) (meets APA) (commingling of roles under DPC)

Answer 52

State licensing board investigating and decertifying medical license granted through reciprocity because Wisconsin practice was performing abortions. Sought to enjoin proceedings after investigation determined “conduct unbecoming,” etc. Question of whether combination of investigative/adjudicatory functions in board violated separation. Court held different degrees of separation, and this degree was permissible • No single answer to commingling because so much variety in agencies • Cases do not stand for proposition that DPC bars all who participate in investigation from adjudication (opposite of Wong Yang Sun)

Question 53

Tumey v. Ohio (1927) (mayor enforcing liquor law) (unconstitutional) (mayor can’t get paid for prosecuting)

Answer 53

Village mayor had power to try individuals accused of violating law prohibiting possession of alcohol. Mayor also got paid for performing his adjudicatory duties • Violated principle of separation à direct pecuniary interest in prosecution

Question 54

Caperton v. Massey (2009) (WV Supreme Court sucks) (unconstitutional) (paid for elections, have to recuse)

Answer 54

WV trial court issued $50m verdict against coal company. CEO of company paid huge amounts of money to support election of Benjamin to WV Sup. Ct. Benjamin refused to recuse himself and Sup. Ct. voted 3:2 to reverse verdict. • DPC is an objective standard that doesn’t require proof of actual bias: “under a realistic appraisal of psychological tendencies and human weakness, does the interest pose such a risk of actual bias or pre-judgment that the practice must be forbidden if DP is to be adequately implemented?” • Here, political influence, serious risk of actual bias, size of contribution compared to rest of campaign/total amount spent in election. Temporal relationship, size of payments, pendency of case are all critical factors

Question 55

Professional Air Traffic Controllers Organization v. Federal Labor Relations Board (DC Cir. 1982) (common sense for ex parte) (violates APA) – but no harm

Answer 55

(1) After PATCO complaint filed, FLRA General Counsel discussed with FLA board a memo about what disciplinary options were available against PATCO (2) Sec. of Transportation phoned member of board. He stated no meaningful efforts to resolve issue had been made and he would appreciate “expeditious handling of the case" (3) Executive council member of the AFL-CIO had dinner with board member said PATCO not punished severely enough • Congress wanted common sense application of ex parte communication ban; goal is to keep decisions open and provide all parties full notice of communications • Here, yes, violation of APA, but not harmful enough to remand o (1) Purpose of meeting was to discuss budget; contact was inadvertent and no arguments were made o (2) The Transportation Sec. definitely interested person. But specifically avoided the merits of the case. o (3) Executive spoke about the hearing, member should have stopped it; but no threat made, no gains = no harm

Question 56

Cinderella Finishing School (D.C. Cir. 1970) (flight attendant charms) (violates APA) (already used as example of illegal monopoly)

Answer 56

SAME FTC chairman; this time, made public statements about standards for advertising fairness, citing “becoming an airline’s hostess by attending a charm school,” before bringing complaint against school that advertised in exactly this way. This was impermissible à “may reflect an entrenching of a Comm’r in a position which he has publicly stated, making it difficult, if not impossible, for him to reach a different conclusion in the event he deems it necessary to do so after consideration of the record.” • Would either have to change his mind and look bad, or his decision is pre-determined

Question 57

Portland Audubon (9th Cir. 1993) (timber rights auction) (violates APA) (ex parte communications)

Answer 57

Court rejected argument that White House had special entitlement to confer with decisionmakers such that it could avoid ex parte communication rules: • Held à President + staff may not attempt to influence a decision of any agency committee through ex parte communications • President is considered outside the agency for purposes of ex parte ban • Can’t have behind-the-scenes lobbying by President in quasi-judicial proceeding • This is formal adjudication (557(d)(1)).

Question 58

Nixon v. Administrator of Gen. Servs. (1977) (REVIEW), see supra

Answer 58

Test for evaluating whether an act of Congress improperly interferes with a presidential prerogative: • Whether act prevents Executive Branch from accomplishing its constitutional functions. • If potential for disruption exists, whether impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. • Held: President cannot influence pending cases

Question 59

Pillsbury Co. v. FTC (5th Cir. 1996) (rough congressional questioning during pendency) (violates APA) (agency can’t issue order influenced by congressional force)

Answer 59

At Senate hearings. FTC witnesses subjected to prolong hostile questioning, referred to the pending case more than 100 times, so Chairman disqualified himself from future participation • Common justice requires courts to invalidate an order entered by a quasi-judicial tribunal that was importuned by members of the Senate, however innocent they intended their conduct to be • Agency may not issue adjudicatory order that is influenced by forceful input by Congress • Litigants have right to appearance of impartiality • Seems to give judicial nominees license to decline to comment on cases that might come before the court.

Question 60

US v. Nova Scotia Food Products Corp. (2d Cir. 1977) (smoked whitefish) (violates APA) (must reveal scientific basis to parties; can’t leave important comments unanswered)

Answer 60

In informal rulemaking, proposed FDA regs required time/temperature/salinity requirements be met to avoid botulism; petitioner submitted comments that it would destroy their whitefish, requested species-by-species determination. Agency held not feasible and promulgated the reg. Petitioners argue inadequate record because of failure to disclose fact and inadequate basis statement. Court held serious inadequacies in promulgation (challenging enforcement, not promulgation). • Question is “the manner in which the agency treated the issues tendered.” Agency procedure was invalid because (1) failed to disclose scientific evidence it used to the parties and (2) failed to address pertinent questions (commercial feasibility). • (1) Must disclose any relevant info that agency has at time of proposal • (2) Cannot leave “vital questions, raised by comments which are of cogent materiality, completely unanswered.”

Question 61

Solite Corp. v. EPA (D.C. Cir. 1991) (new material submitted in comments) (violates APA) (notice of submission + time to respond required)

Answer 61

APA requires NPRM to include various things, and one key feature is agency’s duty “to identify and make available technical studies and data that it has employed in reaching its conclusions.” • Must also give public time to respond. • Implications for handling comments: if genuinely new and not cumulative, agency may be obligated to public notice of submission and allow additional time for responsive comments

Question 62

Rybacheck v. EPA (9th Cir.1990) [on the record vs off record stuffs]

Answer 62

Challenge to EPA regulations under Clean Water Act on discharge of debris into rivers; Pff argued addition of 6,000 pgs to record after N&C period violated right to comment on the record o Additional material didn't violate right meaningful participation; "nothing prohibits agency from adding supporting docs. for a final rule in response to public Comment"

Question 63

Ober v. EPA (9th Cir. 1990)

Answer 63

EPA requires additional 300pg. doc from state after N&C deadline o Can add to record, but have to offer others chance to comment on it = violation of APA in this case o if the information is being used to make the decision then its required to allow a comment. Do not need to have a comment if the information is not used to make a decision

Question 64

United Steelworkers v. Marshall (D.C. Cir. 1980) (OSHA lead consultant) (constitutional) (no ex parte bar for consultants)

Answer 64

Challenge to OSHA standard for workplace lead exposure. Agency relied on consultants in examining feasibility and technology forcing (broad mandates to summarize and evaluate data, prepare data for computer processing, and help draft portions of final preamble and standard). • Held: communications between agency and consultant were part of “deliberative process,” not illegal ex parte communication. • Consultant acted as functional equivalent of agency, just as staff were allowed to act; and agency head still had final say

Question 65

Home Box Office, Inc. v. FCC (D.C. Cir. 1977) (ex parte when discussing cable rule) (unconstitutional) (ex parte contacts informal rulemaking; but this is Skelly-Wright’s zenith, not the law)

Answer 65

Regs restricted the programs cable-casters could offer. Some participants sought out Comm’rs or employees to discuss ex parte the merits of the rules (can’t call them ex parte contacts because (1) it was before that rule existed and (2) this was a 553 rulemaking, where decision need not be based on the record) • Held: informal RM decision must be based on record before agency & available to all; arbitrary because info was not available to all. “Even the possibility that there is one admin record for the public and this court and another for the Comm’n and those ‘in the know’ is intolerable.” • In future: o “Communications which are received prior to issuance of a formal NPRM do not have to be put in public file” but should be if they form the basis for agency action. o And “once NPRM has been issued, any agency official/employee who is/may reasonably be expected to be involved in decisional process…should refuse to discuss matters related to disposition…with any interest private party…prior to agency’s decision.” o If communications happen, written doc summarizing should be placed in public file for comment

Question 66

Action for Children’s Television v. FCC (D.C. Cir. 1977) (self-regulated of kids’ TV) (constitutional) (limiting Home Box Office; closer to DPC (Londoner/Bi-Metallic)

Answer 66

FCC declined to adopt proposed regs for children’s programming after private meetings with industry, where industry made proposals for self-regulation. Proposals were not announced/open to public, agency afforded no chance for public to comment before terminating proceeding • Held: Home Box Office was a too-ambitious version of the DPC; presumed congressional intent not to prohibit all ex parte contacts during/after N&C, so draw the line “at the point where rulemaking proceedings involve competing claims to a valuable privilege” (that’s the point where ex parte contacts become a problem) • Here, private groups not competing for specific privilege; no question of fairness, no benefit to any interested party

Question 67

Sangamon Valley TV Corp. v. US (D.C. Cir. 1959) (2 towns, 1 TV station) (unconstitutional) (limit on ex parte in rulemaking)

Answer 67

FCC proceeding to determine which of 2 communities would be assigned TV station • Original case on constraints on ex parte communications to rulemaking undertaken to resolve “competing claims to a valuable privilege” • Action for Children’s TV limited this holding after Home Box Office had tried to read it broadly

Question 68

Sierra Club v. Costle (D.C. Cir. 1981) (coal power plant regulations) (constitutional) (“ex parte blitz” after comment period)

Answer 68

Regs on coal-fired steam generators and particulate matter; petitioners argue that late-in-the-game change was result of “ex parte blitz” by industry after close of comment period. EPA received 300 comments after period closed; docketed but didn’t reopen or notify public; also held meetings. • Held: both comments and meetings were valid. Distinguishes from rulemaking affecting “competing claims to valuable privilege” vs. “where agency action involves informal rulemaking of a policymaking sort.” * Late comments: Input from industry and regulated groups is important (our system requires this kind of openness and cooperation to spur development, help targets anticipate future changes). Won’t extend Home Box Office to this context. * Meeting with Prez: OK because “EPA made no effort to base the rule on any info/data arising from meeting” and separation of powers (unitary executive) * Meeting with WV Senator: requires 2 conditions before overturning rulemaking for congressional pressure: (1) pressure on secretary designed to force him to decide on factors not made relevant under applicable statute; and (2) secretary’s decisions affected by those extraneous considerations. Here, no

Question 69

C&W Fish Co., Inc. v. Fox (DC Cir. 1991) | constitutional

Answer 69

Decision-maker disqualified only when there is clear and convicting showing he has an unalterably closed mind on matters critical to disposition of the proceeding o Affirms rule; he didn’t have unalterably closed mind (can’t look at his past statements/ advocacy, would disqualify everyone) o To determine if he was biased have to look at prejudgments

Question 70

Sugar Cane Growers Co-op of Fla. v. Veneman (D.C. Cir. 2002) (support for domestic sugar production, quotas) (violates APA but remand) (remand without vacatur)

Answer 70

Gov’t supports domestic sugar production (beet and cane) through subsidies and buying/storing, paying not to produce. Challenged allocation between cane vs. beet subsidies, but rule had already caused changes making it impossible to vacatur to restore status quo ante • Held: proper remedy is remand without vacatur (invalid rule, but vacate & remand unavailable). • Balancing test: (1) seriousness of order’s deficiencies (and extent of doubt about whether agency chose correctly) and (2) disruptive consequences of interim change that might itself be changed on remand. o Telling agency to conduct new rulemaking to decide whether to repeal/replace or to appropriately explain and follow appropriate procedures

Question 71

General Electric Co. v. EPA (D.C. Cir. 2002) (“guidance document” that is enforced like a rule) (violates APA) (pragmatic test for policy statement exception)

Answer 71

Review of EPA’s “PCB Risk Assessment Review Guidance Document.” Covers application of regs on cleanup and disposal of PCB waste. Petitioners argued that it was a legislative rule & should have been promulgated only through N&C • Held: this was a substantive rule & required N&C. Consider (1) whether the agency action imposes any rights and obligations or (2) generally leaves the agency and its decisionmakers free to exercise discretion. o “Imposes rights and obligations”: “agency announcement has present-day binding effect if agency is simply unready to hear new argument” in proceedings governed by announcement. • Here, EPA argued this was not binding because (1) own characterization of its action; (2) whether published in Fed. Reg. or CFR; (3) whether action has binding effect on private parties (acknowledged that third was most important). o Document used word “must,” required parties to use one of two approaches, and binds agency to consider new factors • “If a document expresses a change in substantive law/policy (that is not an interpretation) which the agency intends to make binding, or administers with binding effect, the agency may not rely upon the statutory exemption for policy statements, but must observe APA’s legislative rulemaking procedures.”

Question 72

Ctr. for Auto Safety v. NHTSA (D.C. Cir. 2006) (NHTSA local recalls) (meets APA) (test for whether policy statement vs. rule)

Answer 72

NHTSA on “local recalls,” recalls limited on geographic basis for unique weather conditions, etc. NHTSA previously allowed, but then began sending “generic version” of letters to manufacturers telling them it could use local recalls only in limited circumstances. Ctr. for Auto Safety challenged local recall policy as a de facto legislative rule, and as A/C • Held: this was a policy statement, not a rule. Nothing but a “privileged viewpoint in a legal debate.” o Doesn’t purpose to carry force of law, not published, doesn’t define rights/obligations, labeled “guidelines” not rules, read like guidelines (phrases like “in general,” etc.) • To determine “binding norm or unreviewable statement of policy, analyze either: o Effects: (1) imposed rights or obligations or (2) genuinely left agency and decisionmakers free to exercise discretion o Intentions: (1) agency’s own characterization of action; (2) whether published in Fed. Reg. vs. CFR; (3) whether action has binding effect on private parties/agency • Interpretive vs. substantive = whether/not the rule is binding (if not binding, interpretive; no such thing as binding policy statement).

Question 73

Utility Solid Waste Activities Grp. v. EPA (D.C. Cir. 2001) (surface spill cleaup) (violates APA) (good cause exception)

Answer 73

PCB Spill Policy change that included a new trigger (dropping a de minimis concentration requirement). Petitioner argued EPA failed to justify its reasons for not using N&C in the amendment • Held: EPA failed to justify reasons for not using N&C for amendment. Tried all the possible variations of the “good cause” exception, was unable to prove any of them o Impracticable: due & timely execution of functions would be impeded by notice (ex. safety investigations shows new traffic rule must go into effect immediately). Here, no showing of emergency o Unnecessary: confined to situations in which rule is “routine determination, insignificant in nature and impact, and inconsequential to the industry/public.” Here, increased regulatory burden substantially o Public interest: situation where interest of the public would be defeated by announcement (ex. financial manipulation the rule sought to prevent)

Question 74

Pension Benefit Guaranty Corp. v. LTV Corp. (1990) (pension plan) (meets APA) (procedural requirements for informal adjudication)

Answer 74

PBGC considered a reorganization plan for employer insurance and announced it was reinstating a plan it had previously allowed the company to terminate. • Held: APA imposes maximum procedural requirements (Vermont Yankee extends beyond informal rulemaking context). This decision was “lawfully made by informal adjudication, the minimum requirements for which are set for in APA 555, and do not include elements” of notice of fact/law, opportunity for submission of facts/arguments, opportunity to submit proposed findings, etc. • Not a rule, just forward-looking (so adjudication); nothing requires on-the-record (so informal). COA read in a notice requirement, but the Court says that conflicts with Vermont Yankee o Instead, LTV’s lawyer should have asked for procedures required by DPC (seems like a miss on counsel’s part). DPC often has more bite in informal adjudication than APA does

Question 75

Olivares v. Transportation Security Administration (DC Cir. 2016) (violates APA)

Answer 75

TSA determined plaintiff (foreign alien) was a risk to aviation and national security and denied application for flight school. P claims email to him denying his application for flight training violated the requirements of 555(e ) because the email offered no statement of the ground for agency's denial. o Held: Not satisfied. HOWEVER the declaration by TSA in response to complaint was sufficient o Court adds warning telling agencies to respond with the reason immediately and not wait for a P to file in court o Court ultimately denies petition for review

Question 76

Marshall v. Jerrico, Inc. (1980) (child labor law fines) (constitutional) (DP protections for informal adjudication)

Answer 76

DOL gets to keep civil penalties it imposes for unlawful employment of child labor; regulated party argues that this violates DPC by creating impermissible risk of bias in Act’s enforcement and administration • Held: biasing influence of keeping fines too remote and insubstantial to violate DPC (“strict requirements of neutrality cannot be the same for administrative prosecutors as for judges”). No specific limits, but here, risk was “exceptionally remote.” o Don’t stand to profit from enforcement, small amounts each year, DOL not dependent on civil fines

Question 77

SEC v. Chenery Corp. [Chenery II] (1947) (following Chenery I) (meets APA) (agency can choose rulemaking vs. adjudication in its own specialized discretion)

Answer 77

Stock sales during SEC organization (from Chenery I). This time, issue was whether SEC could make determination about voting rights/shares/reorg based on adjudication, rather than promulgated rule? • Held: agencies may adopt new standards through individual adjudication of particular situation, in addition to issuing prospective rules. To hold otherwise would “stultify the administrative process” à have to make agency flexible and able to deal with specialized problems as they arise; not everything can be a general rule • “Choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.” • Risk of retroactivity but “must be balanced against mischief of proposing a result which is contrary to a statutory design or to legal/equitable principles. If the mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law.”

Question 78

NLRB v. Bell Aerospace Co. (1974) (redefining “managerial employees”) (meets APA) (deference to agency decision to proceed by adjudication vs. rulemaking)

Answer 78

Challenge to NLRB’s authority to announce new principles of law through adjudication (re: whether some employees were “managerial” and over their rights to unionize) • Held: valid under Chenery II and Wyman-Gordon. “The Board’s judgment that adjudication best serves this purpose is entitled to great weight.” o Noted that there could be situations where adjudication would be AOD, but not here; especially appropriate because fact-specific and affected many employees, so importance of deciding case-by-case, with attention to specific details o Reliance didn’t compel different result (no showing reliance interest was “so substantial’ as to preclude this). No new liability for good-faith reliance, no new fines, concern re: consequences is speculative

Question 79

Bowen v. Georgetown Univ. Hosp. (1988) (Medicare wage schedule) (violates APA) (no rules with retroactive effect unless clear statement; primary vs. secondary retroactivity)

Answer 79

HHS retroactively changed a cost-limit schedule setting wages for doctors under Medicare without notice & comment; hospital objected. • Held: retroactivity is disfavored, so Court won’t construe statutes/rules to have retroactive effect unless language requires this result (clear statement rule) • Here, rule gives some retroactive power but not for making retroactive rules for multiple providers, rather than a change affecting a single provider (some other powers for retroactivity, but expressio unius) • Scalia concurring: APA definition of rule is something with future consequences (cites APA, organic statute, AG’s Manual on APA, which is taken as authoritative legislative history because drafted contemporaneously). Adjudication can have future effect (stare decisis), but a rule can ONLY have future effect. o Primary retroactivity: changes past legal effects of past acts (not OK); secondary retroactivity: changes future legal effects of past acts, leaving past years alone (OK if effects are not too severe)

Question 80

Epilepsy Foundation of Ne. Ohio v. NLRB (D.C. Cir. 2001) (firing 2 non-union employees) (violates APA) (no retroactive application to new rule)

Answer 80

NLRB decided Foundation committed unfair labor practices by discharging 2 non-union employees; reaching this holding required reinterpreting the coverage of NLRB’s organic statute, disturbing past precedent. Foundation argues this is unlawful • Held: cannot apply retroactively; this conduct was OK at the time the employer did it, this is subjecting them to present penalty for past conduct that was permitted. Reliance on clear statements by NLRB • “In considering whether to give retroactive application to a new rule, governing principle is that when there is a substitution of new law for old law that was reasonably clear, new rule may justifiably be given prospective-only effect in order to protect settled expectations of those who relied on preexisting rule.” o Doesn’t this just mean that adjudication is prospective only? How to reconcile with Wyman-Gordon? Some way to do this without fine/damages (some injunctive relief)? o What else can you do? After this opinion, put out an interpretive rule (no N&C) to disabuse everyone of their reliance interests

Question 81

FCC v. Fox TV Stations [Fox II] (2012) (vague standards for indecent TV) (violates APA) (fair notice, vague standards don’t provide notice)

Answer 81

Unclear past decisions on whether “fleeting” use of obscenity/nudity was bad enough for FCC penalties; FCC changed its mind and tried to subject Fox to liability for things like single use of “fucking” and etc. • Held: must give regulated entities notice of conduct forbidden/required or DPC is violated; here, impermissibly vague à unclear as to what fact must be proved. (1) regulated parties should know what is required of them; (2) precision/guidance necessary to ensure that those enforcing don’t act A&C o Especially true for protected 1st Amd speech o Even when no direct forfeiture à can consider past offenses in setting future penalties; and an “isolated and ambiguous statement” in the past is not enough notice

Question 82

Abbott Labs v. Gardner [Abbott Labs I] (1967) (generic/brand name drugs) (reviewable) (APA grants broad judicial review)

Answer 82

Congress amended FDCA to require prescription drug manufacturers to print “established” name along with trade name; manufacturers sued Comm’r (responsible for enforcing), alleging that this exceeded rulemaking authority. • Held: won’t preclude judicial review unless it’s clear Congress intended to preclude it à APA provides broad license for judicial review.

Question 83

Johnson v. Robison (1974) (conscientious objector wants educational veteran benefits) (reviewable) (presumption of constitutionality to provide judicial review)

Answer 83

Vietnam conscientious objector wants education benefits, despite requirement of “active duty” (1st Amd religious freedom challenge) • Held: nothing in statutory framework bars constitutionality challenge (constitutional avoidance), despite EXPRESS preclusion. o Purpose of statute precluding review was (1) avoiding burdening courts and (2) ensuring technical/complex determinations stayed with agency. Constitutional challenge doesn’t interfere with either purpose • Good example of Court working hard to afford judicial review

Question 84

Chrysler Corp. v. Brown (1979) (conflict with TS law) (reviewable) (APA saves the day and provides review)

Answer 84

“Reverse FOIA” suit seeking to enjoin disclosure of Chrysler’s diversity/discrimination information, which it was required to submit to the agency. Brought under Trade Secrets Act and APA • Held: disclosure that violates Trade Secrets Act is “not in accordance with the law” per APA, provides a presumptive right of review even where no private right of action exists. • Much closer question whether they have a cause of action under the TSA itself; APA comes to the rescue, providing presumptive judicial review of agency action.

Question 85

Cuozzo Speed Technologies, vs. Lee (US 1979) (unreviewable) (specific language)

Answer 85

o Found 35 USC SEC 314(d) that "determination by the Patent Office on whether to institute an inter partes review under this section shall be final and nonappealable" o 'clear and convincing indications' drawn from 'specific language, specific history, and inferences of intent drawn from the statutory scheme as a whole"

Question 86

Bowen v. Michigan Academy of Family Physicians (U.S. 1986) | reviewable

Answer 86

* Congress only intended to bar judicial review of the determinations of the amount of benefits to be awarded under Part B, not the methods (statute tried to prevent overloading courts with review of Medicaid/Medicare amount determinations, not challenge to procedure for making determinations) so we won’t keep out this challenge * Cites to Abbott for; “the mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others”

Question 87

Block v. Community Nutrition Institute (1984) (consumers challenge orders applicable to industry) (unreviewable) (exception to general trend towards allowing review despite preclusion)

Answer 87

Consumers of dairy products challenged preclusion of review of “milk market orders” (required administrative exhaustion) • Held: unreviewable because plaintiffs were not among the class of people able to challenge the orders. Review was available, just not to these plaintiffs • Rare instance where Congress denied standing to a particular category of persons who might be adversely affected

Question 88

Switchmen’s Union v. Nat’l Mediation Bd. (1943) (membership in group vs. separate status) (unreviewable) (implicit preclusion premised on congressional intent)

Answer 88

NLRB decided to include yardmen in a unit with other “operating railroad employees,” rather than permitting them to vote for separate representation. • Held: not reviewable. Railway Labor Act neither explicitly authorized nor precluded review; Court concluded that Congress intended NLRB’s certification decisions to be final

Question 89

Heckler v. Cheney (1985) (drugs for executions) (unreviewable) (presumption of unreviewability for non-enforcement)

Answer 89

Prison inmates sentenced to death by lethal injection petitioned FDA to review use of drugs for capital punishment (arguing “unapproved use of approved drug” and requirement that drugs be proven “safe and effective” for human execution before use); FDA Comm’r refused petition • Held: enforcement is discretionary, so this is unreviewable; presumption of unreviewability for decisions not to enforce (cites US v. Nixon). o Reasons: 1) “Complicated balancing of a number of factors which are peculiarly within its expertise” (ex. use of agency resources, likelihood of success, fit with agency policy) 2) “When agency refuses to act, no coercive power over individual’s liberty or property rights, and thus does not infringe upon areas that courts are often called upon to protect” (no DPC concerns) 3) Affirmative action provides something for court to review (for nonenforcement, nothing for court to examine) 4) Similar to prosecutor’s decision not to indict (“faithfully executed” is Executive) • Presumption not rebutted here: could be rebutted but isn’t here. Four exceptions: 1) If substantive statute has provided guidelines for agency to follow in exercising enforcement power (such that court can find action wasn’t committed to discretion by law) 2) If refusal would violate constitutional rights 3) If there is a legal question of agency’s jurisdiction to take action (if agency found it lacked jurisdiction, but it was wrong, could tell agency it had jurisdiction and remand) 4) If there is a categorical failure to enforce statute (must be VERY extreme; ex. DACA cases)

Question 90

Webster v. Doe (1988) (fired from CIA for being gay) (reviewable) (constitutional avoidance despite commitment to agency discretion)

Answer 90

Nat’l Security Act gives CIA Director discretion to terminate employees (“necessary or advisable in interests of US”). John Doe alleged he was terminated because he revealed his homosexuality, argued that this wasn’t a threat to CIA (also raised 1st, 4th, 5th, 9th Amd arguments). • Held: committed to discretion, but doesn’t preclude constitutional claims (“fairly exudes deference to the director,” overriding need for discretion in the interest of national security; but requires clear statement to preclude review of constitutional claims because of constitutional avoidance). • Scalia, dissenting: **very important, law changes to look more like his dissent** o “No law to apply” doesn’t cover all unreviewable decisions; distinction between statutes vs. law precluding review à law is broader (includes old common law of what’s precluded (ex. PQD, sovereign immunity); test should include factors like “whether the decision involves ‘a sensitive and inherently discretionary judgment call,’ traditionally nonreviewable, ‘disruptive practical consequences,’” etc. o Here, even though there is a constitutional question, congressional intent to preclude is clear; even if constitutional claims are somehow “more worthy” of review (which he doesn’t believe), no basis for saying that statute distinguishes.

Question 91

Lincoln v. Vigil (1993) (moving funds from lump-sum appropriation between programs) (unreviewable) (typical example of “committed to discretion”)

Answer 91

Disabled Native American children challenged decision to close program providing direct services to them and shifting funds to national mental health treatment program. • Held: “allocation of funds from lump-sum appropriation is an administrative decision traditionally regarded as committed to agency discretion.” This is exactly the kind of thing that 701(a)(2) was intended to cover, and fits the reasons from Heckler v. Cheney very closely

Question 92

Department of Homeland Security v. Regents of the University of California (9th Cir.) (reviewable) (Recission is adjudication)

Answer 92

AG advised DHS to rescind DACA; Alleged that secretary violated the APA by failing to adequately address important factors bearing on her decision o Had a clear process for identifying individuals eligible for DACA o These proceedings are effectively adjudications o "the creation of that program and its rescission is an action that provides a focus for judicial review"

Question 93

Norton v. S. Utah Wilderness Alliance (2004) (use of ATVs in protected lands) (unreviewable) (agency action requirement)

Answer 93

Agency charged with management of public lands allowed ATVs (permitting mixed use), which should have required a “hard look” about environmental impact, which agency had not done. Petitioners sued to compel the agency to do an environmental “hard look.” • Held: only actions that are required by organic law can be compelled; only for things that are ministerial/non-discretionary; cannot direct agency how to act (restatement of Chenery). • Here, agency had discretion on how to achieve land protection; shouldn’t be subjected to undue judicial interference/entanglement in policy disagreements (court lacks expertise and information)

Question 94

Sackett v. EPA (US 2012) | reviewable

Answer 94

Sacketts received a compliance order from EPA which state their residential lot contained navigable waters and that their construction project violated the Act o Was the compliance order a final agency action? -> Yes. o This action determined "rights or obligations" because the Sacketts had a legal obligation to restore their property. Must also give EPA access to their property to record and observe the site o Class: You can have final agency action even if there are remedies left for the effected party to pursue

Question 95

Dalton v. Specter (1994) (Defense Base Closure in Philly) (unreviewable) (finality requirement)

Answer 95

Defense Base Closure & Realignment Act procedure required determination from Sec. of Defense, recommendation to Congress, and approval by Prez. After this for a base in Philly, Sen. Specter and others sued under APA seeking injunction against Sec. of Defense (arguing he failed to comply with procedural requirements) • Held: where presidential action is required to give effect to a statutory scheme, action is not subject to APA review o “Reports are, like the ruling of a subordinate official, not final and therefore not subject to review.” And “actions of the Prez, in turn, are not reviewable under the APA because…the Prez is not an ‘agency.’” o There was a basis for review of presidential action in limited circumstances before APA (common law); here, not saying that any presidential discretion is unreviewable; just saying that standards-less presidential discretion is unreviewable.

Question 96

Abbott Labs v. Gardner [Abbott Labs II] (1967) (drug brand name/generic labelling) (reviewable) (test for ripeness)

Answer 96

Congress amended FDCA to require prescription drug manufacturers to print “established” name along with trade name; manufacturers sued Comm’r (responsible for enforcing), alleging that this exceeded rulemaking authority. Issue here was whether controversy was “ripe.” • Held: ripe for judicial resolution (“until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties,” unripe; both prongs met). • Test: “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” • Here, fitness was appropriate (purely legal issue, final action because promulgated) and hardship (challenge during prosecution sensitive industry, govt’s arguments that it would proceed only civilly and that this hurt enforcement were not convincing)

Question 97

Toilet Goods Ass’n v. Gardner (1967) (FDA facilities inspections & certification removal) (unreviewable) (issues not fit, no hardship)

Answer 97

FDA regulations about admitting FDA employees to manufacturing facilities to inspect color additives processes/facilities; FDA can remove certification until corrected. • Held: unripe because issues were unfit and no hardship à the question as presented was about discretionary action, nothing final/promulgated; and no irremediable adverse consequences • Fitness: this was a discretionary question of enforcement (use of word “may” for inspections and consequences) • Hardship: “not a situation in which primary conduct is affected” and “no irremediable adverse consequences” from challenging later after refusing FDA entry to facility

Question 98

Darby v. Cisneros (1993) (HUD adjudication, didn’t exhaust admin remedies) (reviewable) (agency must say that administrative appeal is mandatory)

Answer 98

Darby sought review of sanction imposed by ALJ but failed to avail himself of appeal within HUD; time for administrative appeal had long passed, HUD argued it was barred for failure to exhaust administrative remedies • Held: not barred, despite clear language of APA, because nothing in HUD regulations suggested that internal appeal was mandatory (Sec. 704). • Failure to exhaust may be the reason a court holds case isn’t ripe; last sentence of § 704 (“agency action otherwise final is final whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to a superior agency authority”)

Question 99

Ross v. Blake (US 2016) | Statutory exhaustion provisions displace the common-law analysis

Answer 99

3 kind of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief 1. An administrative procedure is unavailable when it operates as a simple dead end -- with officers unable or consistently unwilling to provide any relief to aggrieved inmates 2. An administrative scheme might be so opaque that it becomes, practically speaking, incapable of use 3. When prison administrators thwart inmates from taking advantage of grievance process through machination, misinterpretation, or intimidation

Question 100

National Park Hospitality Ass'n v. Department of the Interior (US 2003) (statements of general policy are not reviewable) (unreviewable)

Answer 100

o Court says 51.3 is just a general statement of policy designed to inform the public of NPS' views on the proper application of the CDA [and not an interpretive rule] o It does not command anyone to do anything or refrain from doing anything o While passing 51.3 is a final agency action, court thinks it needs more facts to develop to make a decision on the matter o "we conclude that judicial resolution of the question presented here should await a concrete dispute about a particular concession contract"

Question 101

ADAPSO v. Camp (1970) (allowing competitors to sell the same services) (standing) (new constitutional test; zone-of-interests test)

Answer 101

``` Petitioners sell data processing services to business, challenge a ruling by Comptroller of Currency that, as incident to banking services, national banks may make data processing services available to other banks and bank customers (competitor’s suit). • Held: ADAPSO has standing to bring competitor’s suit to regulation of their competitors that harms their business. Under old standing doctrine, absent a statutory commitment, wouldn’t have had standing but “where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action.” o Foundation for modern standing law because it creates a different constitutional test AND the zone-of-interests prudential standing test (below) ``` o Constitutional test: whether P alleges injury-in-fact from agency action (this is a merits test) that is traceable to the agency action o Zone-of-interests test: “whether the interest sought to be protected is arguably within the zone of interests to be protected/regulated by the statute in question. APA grants standing to a person ‘aggrieved by agency action within the meaning of the relevant statute.’ That interest, at times, may reflect ‘aesthetic, conservational, and recreational,’ as well as economic values.”

Question 102

Lujan v. Defenders of Wildlife (1992) (crocodiles in Africa) (no standing) (generalized grievance isn’t sufficient à putting “bite” into injury requirement LOLOLOL)

Answer 102

Endangered Species Act interpreted through a rule to be applicable only to actions within the US or on the high seas • Held: environmental petitioners lack standing because their injury is a generalized grievance shared by all citizens • General standing test: “irreducible constitutional minimum of standing contains three elements: (1) injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) causal connection between injury and conduct complained of, fairly traceable to the challenged action of the defendant and not the result of independent action of some 3d party not before the court (3) must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision o If P is object of gov’t in/action, easy to show; but “if a plaintiff’s asserted injury arises from the govt’s allegedly unlawful non/regulation of someone else, much more is needed” because results depend on 3d party à not precluded but much more difficult to establish • Application: here, no injury-in-fact (“requires that party seeking review be himself among the injured”). They try member standing, ecosystem nexus (too broad), animal nexus, and vocational nexus but “standing is not an ingenious academic exercise in the conceivable…requires a factual showing of perceptible harm.” Also issue with redressability • Statutory standing analysis: there is statutory standing for procedural requirements (“consultative procedure”), but not what Ps are trying to enforce. “We have consistently held that a plaintiff raising only a generally available grievance about the gov’t—claiming only harm to his and every citizen’s interest in the proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Art. III case or controversy.” • Separation of powers significance: “To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the laws into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the Courts the Chief Executive’s most important constitutional duty [take care]. It would be to enable the courts, with the permission of Congress, ‘to assume a position of authority over the governmental acts of another and co-equal department’ and to become ‘virtually continuing monitors of the wisdom and soundness of executive action.” o Congress can sometimes manufacture standing (ex. qui tam) but that’s not the case here. No financial incentive (no monetary damages in APA), no hearing that P has missed à Congress has authorized people who haven’t personally suffered injury; that’s what Scalia rejects

Question 103

Allen v. Wright (1984) (tax exemption for racist private school) (no standing) (more bite to standing test)

Answer 103

Parents of black public school students challenged IRS’s failure to adopt sufficient standards/procedures to deny tax exempt status to racially discriminatory private schools • Held: no standing; either (1) generalized or (2) not traceable * Generalized: “asserted right to have the gov’t act in accordance with law is not sufficient standing alone to confer jurisdiction on a federal court.” Otherwise someone in Hawaii could sue about exemption in Maine, federal courts would be “no more than a vehicle for the vindication of the value interests of concerned bystanders.” * Not traceable: would only be traceable if there were enough grants that changing would make appreciable difference in integration (not clear) * Brennen, Stevens dissents: makes Ps prove their case at pleading stage; confusing question of standing with question of whether Court would be willing to grant relief sought (nationwide injunction directing details of IRS enforcement activity)

Question 104

NCUA v. First Nat’l Bank & Trust Co. (1998) (banks challenge credit union membership interpretation) (standing) (look to the type of interest, not the particular plaintiff)

Answer 104

Definition of membership in a credit union (statute requires “common bond of occupation or ass’n, or to groups within a well-defined neighborhood/community/rural district”). Banks competing with credit unions wanted to limit this area (// ADAPSO, Clarke), seek enforcement of purposes articulated in statute • Held: met zone-of-interests test. Not whether congressional intent to benefit putative plaintiff, but about the zone of interests: (1) what interests are protected by the statute and (2) whether P’s interests are among them. Interests, not particular plaintiffs. • Here, generally policy of statute was about limiting membership in unions to protect banks à irrelevant that statute did not explicitly protect specific groups because “general policy was apparent and those whose interests were directly affected by broad vs. narrow interpretation were easily identifiable” • O’Connor, Stevens, Souter, Breyer, dissenting: under this approach, every litigant who establishes injury-in-fact also meets ZOI (just means Ps have interest in enforcing statute); “pertinent question under ZOI test is whether Congress intended to protect certain interests through a particular provision, not whether, irrespective of cong. Intent, a provision may have the effect of protecting those interests.”

Question 105

FEC v. Akin (1998) (whether AIPAC was “political committee”) (standing) (statute > ZOI test)

Answer 105

FEC determined that AIPAC wasn’t “political committee,” didn’t have to disclose members, contributions, or expenditures. Voters appealed determination (“any person who believes a violation of this Act has occurred may file a complaint with the FEC” and “any party aggrieved” could petition in district court). FEC argued that Ps lacked standing as voters • Held: voters had standing because “Congress has specifically provided” injury & right to judicial review (use of the word “aggrieved” showed intent to cast standing net widely, beyond common law interests & substantive statutory rights). o ZOI override: this was an informational injury; no need for “logical nexus” test because there is a statute; implies that Congress can override the ZOI test (could probably still pass traditional test because of purpose of statute) o Generalized grievance: must be generalized AND abstract/indefinite. Here, harm is concrete, though widely-shared. And directly related to voting, most basic of rights o Agency discretion: FEC argues that decision was not to act (Heckler v. Cheney), but not committed to agency discretion (action required by statute)

Question 106

Universal Camera Corp. v. NLRB (1951) (firing employee in retaliation for testimony) (violates APA) (consider “whole record” and as reasonable mind question)

Answer 106

NLRB brought proceeding against company for discharging an employee who testified under Wagner Act (retaliation for reporting company interference with unions); NLRB trial examiner recommended dismissing complaint, but NLRB rejected report and ordered Universal to reinstate the employee. Questions of what proof NLRB needed to support decision & whether it had that evidence here. • Held: can’t displace Board’s choice between two fairly conflicting views even though court might’ve made different choice, but plain language of statute directs reviewing court to determine substantiality of evidence on the record, including examiner’s report. • Don’t have to give the report more weight than judicial experience says is due, but must look at all evidence, not just evidence supporting Board’s decision).

Question 107

Safe Extensions, Inc. v. FAA (D.C. Cir. 2007) (airport runway lights) (violates APA) (mere declaration of provable fact is not enough)

Answer 107

FAA proposed rule requiring certain kinds of runway lights to withstand more severe tests than others. 2 companies offered comments criticizing, FAA prepared a response which it said appeared in appendix, but no indication it was shared with anyone, and company says it never got any response. Company argues FAA acted A&C by imposing additional test. Question of whether “whole record” supported additional test? • Held: no support for this additional requirement in evidence considered, so this was A&C. “An agency’s declaration of fact that is capable of exact proof but unsupported by evidence is insufficient to make the agency’s decision non-arbitrary.” • Doesn’t matter that this was informal; just matters where the evidence can be found (in informal, agency can provide court with any evidence from before it made decision)

Question 108

ADAPSO v. Bd. of Govs. of Fed. Reserve Sys. (D.C. Cir. 1984) (is this even a case?) (who knows) (substantial evidence vs. A&C)

Answer 108

Scalia argued that “substantial evidence” and “A&C” review imposed essentially identical substantive demands; distinction is “to require substantial evidence to be found within the record of closed-record proceedings to which it exclusively applies.” • He noted that, despite standards being equivalent, “impression that substantial evidence standard is more demanding persists”

Question 109

Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Ins. Co. (1983) (passive restraints) (violates APA) (rational connection test)

Answer 109

NHTSA mandated phasing in passive restraints, but when a new Prez was elected before compliance deadline, Sec. of Transportation reopened rulemaking and proposed possible rescission. After comments & hearings, NHTSA issued final rule rescinding, saying that it could no longer find (as it had before initial proposal) that requirement would produce significant safety benefits (reflected change in plans of auto industry, 99% implementation) • Held: rescission of passive restraint rule was A&C because no rational connection between rescission and the available data. • “Court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ In reviewing that explanation, we must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” o And court cannot add an explanation agency hasn’t given (Chenery)

Question 110

Allentown Mack Sales & Serv., Inc. v. NLRB (1998) (union recognition) (violates APA) (rule in effect vs. rule announced)

Answer 110

New employer decided not to recognize union, union protested. NLRB ALJ concluded that employer, as successor in interest, had failed to demonstrate objective reasonable doubt needed for poll of employee support instead of just accepting union (on statements of 7/32 employees). Issue was whether NLRB’s order was A/C • Held: (1) NLRB’s policy requiring same doubt for non-recognition vs. poll was weird but not irrational; (2) NLRB said it only required good faith reasonable doubt, could not effectively apply a stronger standard; (3) NLRB’s factual determination was unreasonable, so decision was A/C • Rationality of policy: “puzzling” but not “so irrational as to be A/C within meaning of the APA.” • Fact question: “not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” • Rule announced vs. rule in effect: NLRB said that all that was required was good-faith reasonable doubt; could not in practice require more evidence

Question 111

Camp v. Pitts (1973) (bank branch) (remand – wrong SOR) (rational connection, not de novo review)

Answer 111

Bank sought to open a new branch, but Comptroller of Currency rejected application; no formal hearings, denied in a letter. Rs argued that this was A&C, district court reviewed de novo • Held: de novo review was not appropriate; “focal point for judicial review should be the administrative record already in existence, not some new record made initially in reviewing court.” If agency didn’t explain sufficiently, proper remedy was remand to get more information (Chenery)

Question 112

Dep’t of Commerce v. New York (2019) (citizenship census question) (violates APA) (pretext = A&C)

Answer 112

Inclusion of citizenship question on 2020 census. DOL announced that it was including and challengers argued this decision was A&C, sought additional discovery about Sec.’s choice. • Held: “the choice between reasonable policy alternatives in the face of uncertainty was the Sec.’s to make,” but the decision was based on pretext – did not explain real reasons, “a significant mismatch between the decision the Sec. made and the rationale he provided…sole reason stated seems to have been contrived.” • Framework for analyzing pretext: (1) agency must disclose basis of its action (Chenery); (2) reviewing court is limiting to evaluating contemporaneous explanation in light of existing administrative record (Vt. Yankee; Camp v. Pitts); (3) court can’t reject stated reasons because agency might also have considered unstated reasons or been influenced by political considerations (Sierra Club v. Costle); (4) narrow exception for strong showing of bad faith/improper behavior (Overton Park). • SUPER IMPORTANT SENTENCE FOR ARBITRARY AND CAPRICIOUS REVIEW: o "our scope of review is narrow: we determine only whether the Secretary examined 'the relevant data' and articulated 'a satisfactory explanation' for his decision, including a rational connection between the facts found and the choice made" • Thomas, Gorsuch, Kavanaugh, dissenting in part: Court has never held a decision A/C for pretext before, and this is an inappropriate inquiry

Question 113

Skidmore v. Swift & Co. (1944) (Jackson)

Answer 113

Firefighters required to stay overnight in fire hall, mostly used time for sleep/amusement à sued FLSA seeking overtime compensation for those hours • Administrator set forth his views about this law in an administrative bulletin and in informal rulemakings, expressed conclusion about this case in an amicus brief • Although an agency’s rulings, interpretations, and opinions are not controlling on courts, they are entitled to respect (based on experience and informed judgment of agency) and may be used for guidance by courts and litigants o Weight of such judgment depend on: (1) Thoroughness of agency’s consideration (2) Validity of agency’s reasoning (3) Consistency with agency’s earlier and later pronouncements (4) All of those factors which give agency the power to persuade

Question 114

Chevron v. NRDC (1984) (Stevens) | p. 1002

Answer 114

Binding obedience deference à courts must obey reasonable agency constructions • If Congress has explicitly left a gap for agency to fill, there is express delegation of authority to the agency to elucidate a specific provision of the statute by regulation (binding obedience deference) o Explicit legislative delegations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute o Implicit delegations à presume lawmaking power to agency Chevron steps: • 0: is this a statute that this agency administers (does Chevron apply)? • 1: if Congress has spoken directly to the precise question at issue (intent clear), court and agency must give effect to the unambiguous intent of Congress o Use traditional tools of statutory interpretation to make this judgment • 2: if Congress has not directly addressed precise question at issue (statute silent/ ambiguous (more than 1 reasonable construction) with respect to the specific issue), court decides whether agency’s construction is based on a permissible construction of the statute What if an agency changes its definition? • Does not mean no deference à fact that agency has adopted different definitions in different contexts adds force to argument that definition is flexible, particularly since Congress has never indicated any disapproval of a flexible reading Reasons for Chevron • Policy judgments: are properly left to legislators and administrators, not judges o Judges not experts à regulatory schemes are technical and complex, agencies can consider matters in detailed and reasoned fashions when decisions involve competing policies • Democratic accountability: agencies are accountable to President who is accountable to people, judges are not a political branch o Appropriate for a political branch to make such policy choices when Congress left an agency to resolve ambiguities in statutes in light of everyday realities

Question 115

INS v. Cardoza-Fonseca (1987) (suspend deportation vs. asylum) (Failed Step One) (anti-surplusage)

Answer 115

INS determined that statutory standard for suspension of deportation and asylum eligibility were the same • Held: Congress had spoken directly to this precise issue and made clear that the two standards were different à failed step 1. Use of different words showed standards were different (anti-surplusage) o Uses text and legislative history to determine that statute is not ambiguous • Scalia, concurring: don’t look to legislative history; could do this from text alone (or else deference is just “a doctrine of desperation”)

Question 116

FDA v. Brown & Williamson Tobacco Corp. (2000) (FDA cigarettes) (Failed Step One) (anti-surplusage, context)

Answer 116

FDA questioned whether cigarettes fell within the broad definition of “drug” and “device” in the Food, Drug, and Cosmetics Act, which would bring them within agency’s jurisdiction • Congress had spoken directly to this issue à evidence in statutory requirements that therapeutic drugs and medical devise must be found both safe + effective to be marketed o Cigarettes could not be found “safe” so it would be inevitable that the agency would have to ban them entirely o Congress could not have meant this; it passed a series of statutes (look elsewhere in U.S. Code) that imposed distinctive labeling + advertising requirements on cigarettes which indicated that it meant to permit their continued marketing

Question 117

EEOC v. ARAMCO (1991) (Saudi Arabia women) (Failed Step Two) (no extraterritorial effect)

Answer 117

Title VII gender discrimination in Saudi Arabia • Held: text of statute ambiguous, so relied on presumption against extraterritoriality; makes agency’s interpretation impermissible at Step 2

Question 118

MCI v. AT&T (1994) (permissive detariffing) (Failed Step Two) (failed both steps)

Answer 118

Whether FCC decision to make tariff filing optional for all nondominant long-distance carriers is a valid exercise of its modification authority (does “modify” mean “abolish”?) • An agency’s interpretation of a statute is not entitled to deference when it goes beyond the meaning that statute can bear à can’t make a radical or fundamental change to the Act (modify means small change; this is getting rid of the entire scheme) • Step 1: reject notion that major change allowed à would be contrary to statute, even if the statute was ambiguous o Agency used one dictionary definition of “modify” to argue that modify could mean major change o Elimination of the crucial provision of the statute for 40% of the industry is much too extensive to be considered a modification * Step 2: fails because the change was not a permissible construction * Stevens, Blackmun, Souter dissenting: would have deferred at Step 2. Statutory scheme meant to maximize flexibility, FCC should get deference

Question 119

Crandon v. US (1990) (criminal provision) (Not entitled to Chevron) (Chevron Step 0)

Answer 119

Gov’t sued Boeing for damages because they provided lump-sum payments for employees leaving to work for the government, which allegedly created a conflict of interest and breached fiduciary duty of loyalty to gov’t. • Held: doctrine of lenity applied, so ambiguities in criminal statute must be resolved in favor of defendant. • Scalia concurring: This failed Step Zero because agency not charged with interpreting criminal code. This is a law where the agency doesn’t get deference, don’t even need to reach lenity at Step One

Question 120

US v. Mead Corp. (2001) (planner tariffs) (Adds to Step Zero) (adds requirements to Chevron Step 0)

Answer 120

Congress changed Mead’s day planners from being duty-free to being subject to a 4% tariff à Mead sued • Held: tariff classification does not get Chevron because Congress did not intend such a ruling to carry the force of law à only get Skidmore (treat like interpretations from policy statements, etc.) • BUT: sometimes find Chevron deference when no administrative formality is required or afforded (if there is an indication that agency has lawmaking power in that context) • Go provision by provision to make sense of statutory scheme, decide whether reasonable to infer that Congress intended agency to have rulemaking power, and in what ways. Reasons why Chevron does not apply: (1) Statute gave no indication that Congress meant to delegate authority to Customs to issue classifications rulings with the force of law (2) Although statute’s direction seems to say that a ruling may be precedent in later transactions, precedential value alone does not equal Chevron entitlement (3) CIT could override the classification rulings (review other than judicial review) (4) Elaborate procedures preclude agency action à treatment by agency means the latter does not bind third parties (5) Agency churns out over 10,000 rulings per year, which refutes binding nature • No clear policy, Court just isn’t convinced (// Ctr. for Auto Safety à not promulgated by person with regulatory authority, but by someone at lower office; not reasonable to think person had power to make law; Chrysler v. Brown à can’t find where agency was given power to make substantive law) Adds Chevron Step 0: • Administrative implementation of a particular statute qualifies for Chevron when it appears that: o Congress delegated authority to the agency generally to make rules carrying the force of law; AND o Agency interpretation claiming deference was promulgated in the exercise of that authority; can show delegation in a number of ways:  Agency’s power to engage in adjudication or N&C rulemaking, some other indication of a comparable congressional intent Scalia, dissenting (vigorously): effect of this is to make the law complicated à shift things from easy Chevron to vague Skidmore regime. Removes discretion from agencies. • First opinion where any justice recognized that Chevron might not be faithful to the APA (// Scalia’s Brand X dissent).

Question 121

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. (2005) (“broadband” construction) (Passed Chevron) (agency > court)

Answer 121

Under Comms Act, treated carriers as “common carriers,” subject to regulations, but broadband providers had less burdensome rules. Question of whether broadband was a telecoms service vs. information service. 9th Circuit precedent vs. FCC interpretation. • Held: FCC’s decision passes both steps of Chevron. (0) applied Mead test for whether Chevron applies, determines that FCC has power to make rules; (1) there is ambiguity in the statute, such that Congress understood it would be resolved by agency (2) 9th Cir. decision to the contrary is just one possible interpretation, and we show deference to agency’s permissible interpretation • Power to make law is split between executive and judicial: o If unambiguous, court’s construction stands as binding precedent à agency is bound to only reasonable construction) (Stevens concurrence) o If ambiguous, agency can choose different construction à court must ask whether agency’s construction is permissible) • Issue of law and issue of policy, but distinct issues: o Law: agency interpretation of “telecoms service” (Chevron, passes both steps) o Policy: agency is changing its regulation of DSL, but it’s allowed to (nothing arbitrary about fresh analysis) (State Farm, not a/c) * Stevens concurring: raises question/caveat à Court’s explanation wouldn’t be applicable to a SCOTUS decision, which would presumably remove preexisting ambiguity. Court keeps ducking this question, which Scalia predicted in his Mead dissent * Breyer concurring: passionately defending Mead against Scalia * Scalia, Souter, Ginsburg dissenting: this is an implausible read of the state and it exceeds FCC’s authority. This creates a Hayburn’s Case problem (admin review of 9th Cir. decision); possible response is that this is just a statute, not a judicial decision, being subjected to review

Question 122

Dominion Energy v. Johnson (1st Cir. 2006) (CWA “public hearing” redux) (Passed Chevron) (how Chevron and Brand X fit)

Answer 122

This is the same issue as presented in Seacoast—did “public hearing” mean that EPA had to use formal process in determining a licensing application? • Held: Seacoast did not hold that Congress clearly intended “public hearing” to mean “evidentiary hearing.” Only found no clear congressional intent, which means entitled to deference at Step 1, and we will defer at Step 2 (clearly meets Step 0) à this was a permissible interpretation • Good review of how Chevron and Brand X work together

Question 123

King v. Burwell (US 2015) | failed Chevron

Answer 123

• Court refused to extend Chevron deference to the IRS's regulation of interpreting the ACA's tax-credit provision -- despite the ACA's express grant of authority to the IRS to 'prescribe such regulations as may be necessary to carry out the ACA's tax credits' • Step 0 being formed here o First need to ask if Congress has delegated the authority to an agency to fill in the gaps of an ambiguous law

Question 124

Auer v. Robbins (1997) (FLSA salary-basis regulation interpretation) (deference to agency) (deference to agency interpretation of regulations)

Answer 124

Sec. of Labor filed amicus brief interpreting salary-basis test to deny exemption for employees with disciplinary/other practical pay deductions (sergeants and lieutenants in police department). Statutory question – ambiguous, so agency gets to interpret; question was interpretation of FLSA regulation. • Held: when agency construes its own regulations, courts are bound unless the agency’s interpretation is “clearly erroneous or inconsistent with the regulation.” “Deferential standard easily met here” (cites Seminole Rock); this is a Scalia opinion o This was not post-hoc rationalization (even though it was a brief); agency isn’t under attack, provided brief at Court’s request, signed by top authority (authoritative statement of agency regulation, // guidance doc). o Unanimous decision, 50 years of precedent; but then things start to change with Talk America, and Kisor “upsets the world”

Question 125

Perez v. Mortgage Bankers Assn. (US 2015) | Scalia/Thomas casts doubt on Auer

Answer 125

• Scalia o Says we are now ignoring language in APA that directs "reviewing court… Determine the meaning or applicability of the terms of an agency action".  We are now just giving the agency discretion to determine ambiguities under Seminole Rock  This is binding the American people to rules made by an agency • Thomas o "Seminole Rock… Represents a transfer additional power to the executive branch in amounts to erosion the judicial obligation to serve as a check on political branches" o "when a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the judicial power of the United States… the judicial power as originally understood requires a court to exercise its independent judgment in interpreting and expounding upon the laws" o Undermines judicial check on political branches

Question 126

Kisor v. Wilkie (plurality & concurrence) (2019) (VA regulation) (limits Auer) (remanded with new limits)

Answer 126

Circuit applied Auer deference to uphold decision of Dep’t of Veterans Affairs (held that VA regulation at issue was ambiguous and deferred to Board’s interpretation of rule) • Held: Auer deference is still important, but reinforce its limits (only question asked here was to overturn, which we will not do). o Reasons not to overturn: presume that Congress would generally want agency to play primary role in resolving ambiguities (unique expertise, factual investigations, experts, and answerable to public through President) o New limits on Auer: (1) agency’s authoritative/official position, not ad hoc; (2) must implicate agency’s expertise; (3) fair/considered judgment; (4) cannot defer to new interpretation if “unfair surprise” to regulated parties; (5) genuinely ambiguous regulation; (6) reasonable interpretation • Roberts concurring (5th vote): Auer isn’t the same as Skidmore but lots of overlap in what gets deference à cases where it would be unreasonable for Court not to be persuaded by agency’s interpretation of its own regulation o Suggests that difference between majority vs. Gorsuch isn’t great (“limits” make it pretty similar to Skidmore). But reserves judgment on overruling Chevron

Question 127

Kisor v. Wilkie (separate opinions) (2019) (same) (compromise on Auer) (Kisor version seems healthy)

Answer 127

Same • Gorsuch, Thomas, concurring: Auer’s history shows it was an accident, and the APA is in tension with this doctrine. Concur because the limitations are essentially Skidmore deference (which Gorsuch thinks is OK because it’s policy deference) o § 706 requires reviewing court to decide for itself any dispute over proper interpretation of agency regulation à this cedes that power from court to agency o § 553 requires N&C à this nullifies and directs court to treat as controlling agency’s interpretation in a brief, press release, or guidance doc without N&C (turning interpretive into substantive rulemaking) o Art. III says “emphatically the province of the judiciary to say what the law is” (Marbury) à this violates that principle • Kavanaugh, Alito, concurring: if reviewing court uses all tools of statutory interpretation, no need to adopt/defer to agency’s contrary interpretation (this is essentially Skidmore). o Court using traditional tools of statutory construction can resolve this. Whether at Step 1 of Chevron or in modified Kisor review, courts will be able to resolve ambiguities; no need for deference to agency o HLR article: agencies should get final say within bounds of reason about how to construe broad, generalized language in statutes. Not committing to overruling Chevron, but says he’s ready to overrule Auer

Question 128

Gutierrez-Brizula (concurrence) (10th Cir. 2016) (who knows) (Gorsuch hates Chevron)

Answer 128

Gorsuch dissenting: a dramatic Gorsuch dissent where he wants to overrule Chevron. Brings in Brand-X, non-delegation doctrine, etc. • How can we have “intelligible principle” when, in Chevron Step 2, we’re saying there’s no intelligible principle?

Question 129

Barron & Kagan, “Chevron’s Non-Delegation Doctrine” (2001) (limit Chevron by high vs. low-level decisionmaker)

Answer 129

Rather than look, as Mead did, to whether/not agency has followed a certain procedure or has acted generally/particularly, look at who is acting (not how they are acting). • Is the person acting who Congress said was responsible for administering the statute? If yes, that person should get deference if Chevron is the presumption. o If the statutory official delegates power to a subunit under him, that subunit should not get deference from courts (and shouldn’t take political/legal responsibility for the decision). o Echoed in Mead, Ctr. for Auto Safety, Kisor. • Kagan loves this high-level/low-level distinction; likely wants to import into subsequent narrowing or revision of Chevron/Mead.

Question 130

Sunstein, “Chevron as Law” (2019) | stronger use of canons + major issues doctrine as limits

Answer 130

Argues for “domesticated” Chevron approach to address separations-of-powers concerns about infringing on the role of Art. III courts • Real way to discipline Chevron is for courts to be more devoted to exercising tools of statutory construction and resolving ambiguities by canons • Endorses major issues doctrine (from Burwell, written by Roberts) à less deference for major changes (also true in MCI v. AT&T, Brown & Williamson) • Roberts might not be willing to overrule Chevron but might trim its sails in the way Sunstein describes

Question 131

Merrill & Watt, “Agency Rules with the Force of Law: The Original Convention” (2002) (look to organic law to see if agency has power)

Answer 131

Original convention: if Congress specified in statute that violation of agency rules would subject offending party to imposition of sanction (civil/criminal penalty, loss of permit, license, benefits, or other adverse legal consequences), grant was understood to confer power to make rules with force of law. If Congress did not provide for sanctions for rule violations, understood that grant authorized only procedural or interpretive rules • Reflected in § 558(b) à courts continued to follow until Nat’l Petroleum Refiners. Authors here hypothesize that Wright was unaware of the convention because it was not written in decisions, just followed by Congress.

Question 132

Citizens to Preserve Overton Park, Inc. v. Volpe (1971) (road through Memphis park) (“probing standard” of review) (partially not good law, but good review)

Answer 132

Organic law prohibits use of federal funds to build highways through public parts if “feasible and prudent” alternative route exists; and must do “all possible planning to minimize harm” to the park. Citizens argue that this wasn’t done in construction of a highway through a park in Memphis • Held: Secretary’s decision is entitled to presumption of regularity, but does not shield his action from a thorough, probing, in-depth review (later, this would get more deference; but A&C is still a probing standard, ex. State Farm, other A&C cases) o (1) has Sec acted within scope of his authority? (Chevron/Skidmore). Once we figure out if this is within bounds, can figure out if “reasoned decisionmaking). o (2) was choice made A&C, abuse of discretion, otherwise not in accordance with law? Consider relevant factors + whether a clear error of judgment (court can’t substitute judgment for that of agency) o (3) was Sec’s action in compliance with necessary procedural requirements? Here, only procedural error alleged (failed to make findings), which requires remand to district court for more fact-finding (review hampered by lack of record, but formal findings not required by organic law; district court can just ask for more explanation)  Reasons stated by Sec are things that are reviewed (contemporaneous explanation, Chenery). If no reasons, then A&C; also consider things like pretext (strong showing of bad faith)