Judicial Review

Question 1

\What is the rule of prejudicial error?

Answer 1

In judicial review, if the error reviewed was not prejudicial, then no harm no foul.

Question 2

What two substantive issues do agencies make when promulgating a rule (and which are reviewable)?

Answer 2

1) On the basis of evidence available to the agency, what are the relevant facts.
2) What type of rule, if any, is appropriate in light those facts/what is the regulatory option that will best further the statutory mandate.

Question 3

What is the Chevron test and when does it apply?

Answer 3

Applies to an agency rule interpreting its enabling statute.

1) The court reviews the enabling statute to determine whether Congress has directly spoken to the precise question at issue.
2) If ambiguous, the agency’s interpretation is upheld if it is permissible or reasonable (not arbitrary and capricious).

Question 4

What is the process for interpretation in Chevron step 1?

Answer 4

Canons of statutory construction > Legislative history.

Question 5

What is the major questions doctrine?

Answer 5

For certain economically and politically significant assertions of statutory authority, there must be more than a “merely plausible textual basis” for the asserted authority—there must be clear congressional authorization.

Question 6

When does major questions doctrine apply?

Answer 6

Where an agency’s asserted authority:

1) Would constitute a radical or fundamental change to a statutory scheme.
2) Would depart significantly from the history and breadth of authority the agency has asserted in the past.
3) Results in a rule with economic and political significance.

Question 7

What are the plain meaning, statutory construction, and purposivist approaches to Chevron step 1?

Answer 7

1) Textualists ask how a “skilled, objectively reasonable user of words” would have understood the text, int eh circumstances in which it was ordered. Look to particular language and the language/design of the statute as a whole.
2) Court applies canons to language of statute, as well as the law as a whole, including its object and policy. Most circuits allow canons at step one.
3) How would “reasonable persons pursuing reasonable purposes reasonably resolve” the issue addressed by the language?

Question 8

What was the holding of Brand X?

Answer 8

A prior judicial construction of a statute only trumps an agency construction otherwise entitled to deference if the judicial construction follows from the unambiguous terms of the statute. Agencies can change their minds at step two.

Question 9

Describe the substantial evidence standard under ConEd v NLRB.

Answer 9

The court must uphold a rule if it finds the agency’s decision to be “reasonable,” or the record contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Question 10

Describe the arbitrary and capricious standard.

Answer 10

The court must consider “whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment.” Overton Park

Question 11

Must courts review the whole record when determining whether to affirm a rule?

Answer 11

Yes. 706

Question 12

What comprises the record in formal and informal rulemaking?

Answer 12

Formal: evidentiary record; testimony and documents.
Informal: Information the agency actually considered in making the decision; FR notices for the proposed and final rule; comments; studies and data.

Question 13

What is the “adequate explanation” standard for arbitrary and capriciousness?

Answer 13

Did the agency “articulate a satisfactory explanation for its actions including a ‘rational connection between the facts found and choices made’”?

Relevant factors:
1) Is scientific expertise involved?
2) Is it merely political? A change in administration is not a sufficient justification for a change in policy. MVMA v. State Farm
3) What are the economic and social impacts of the rule? Bigger impacts = more scrutiny.

Question 14

What if the agency has not provided adequate explanation for its action, but the court can discern adequate explanation from the record?

Answer 14

Court should still remand. Chenery

Question 15

In formal adjudication, what evidence does the substantial evidence test apply to?

Answer 15

All evidence on both sides of the record; even evidence contradicting the agency’s decision. Also includes ALJ’s decision, which is given “particular weight” re credibility. Universal Camera Corp.

Question 16

What is the difference between basic and ultimate fact?

Answer 16

Basic facts are plain facts, while ultimate facts are final conclusions of law as applied to facts.

Question 17

What are the two types of inferences an ALJ can make in credibility determinations, and how much deference are they given?

Answer 17

1) Testimonial inferences/witness demeanor: more deference.

2) Derivative inferences/substance of testimony: little to no deference.

Question 18

How do courts deal with mixed questions of fact or law?

Answer 18

1) First, the court determines whether the facts found by the agency have a “warrant in the record.” Second, the court reviews the agency’s explanation for its decision to decide whether it has a “reasonable basis in law” (the goals and purposes of the enabling statute). Hearst.

2) The court asks whether there is substantial evidence in the record to support findings of both law and fact. Still a similar inquiry to Hearst. O’Leary

Question 19

What is the standard of review for informal adjudication?

Answer 19

Arbitrary and capricious review/adequate explanation. “Substantial inquiry” based on the record before agency when it made its decision. Overton Park.

Question 20

What is the remedy for an arbitrary and capricious decision in informal adjudication?

Answer 20

Remand to the agency to prepare an explanation. Not testimony in court.

Question 21

What was the three-step process for arbitrary and capricious review from Overton Park?

Answer 21

1) Did agency act within scope of its statutory authority?
2) Was decision arbitrary and capricious? Narrow inquiry.
3) Did the secretary follow the necessary procedures?

Question 22

When does Skidmore deference apply?

Answer 22

Opinion letters. Christensen

When Congress gives an agency power to make rulings (tariff classifications) but it doesn’t seem like Congress meant for those rulings to have the force of law. Mead

Question 23

When does Chevron deference apply?

Answer 23

Informal rulemaking.

Where Congress intended the agency to have the power to issue rulings with the force of law and it is acting pursuant to that authority. Mead.

To interpretive rules when: it is an legal question of an interstitial nature, it relates to agency expertise, it is important to administration of the statute, that administration is complex, and the agency has carefully considered the question over a long period of time. LOL. Barnhart.
Depends on interpretive method used and nature of the legal question.

Question 24

When does Seminole Rock/Auer deference apply?

Answer 24

Agency interpretation of its own regulations. Seminole Rock

Agency’s interpretation of its own regulation in an amicus brief. Auer

OSHA citation alleging violation of a regulation. Martin

NOT when the regulation merely parrots the words of the statute. Gonzales v. Oregon.

Question 25

What weight does a reviewing court give to an ALJ’s findings, even if the agency has reversed them?

Answer 25

Some weight to testimonial/demeanor inferences. None to derivative. Think sexual harassment case. ∆ v. π, ALJ gets deference. ∆ v π + witness, no deference.

Question 26

What is the standard of review for a court directly reviewing an ALJ’s findings of law and fact?

Answer 26

Should be upheld if supported by substantial evidence and not inconsistent with the law.

Question 27

What is the test from Kisor v. Wilkie for when Seminole Rock/Auer deference applies?

Answer 27

1) Regulation must be ambiguous after exhausting traditional tools of construction.
2) Agency reading must be reasonable.
3) Court must decide whether the character and context of agency interpretation entitles it to controlling weight.
4) Must be the agency’s authoritative or official position.
5) Must implicate agency’s substantive expertise.
6) Must reflect fair and considered judgment.

Question 28

What are the causes of action under 702?

Answer 28

1) Suffering legal wrong because of agency action.
2) Adversely affected by agency action within the meaning of a relevant statute.

Question 29

What are 701’s limits on judicial review?

Answer 29

1) Statute precludes review.
2) Committed to agency discretion by law.

Question 30

What is a legal wrong?

Answer 30

Gov. action that interferes with a person’s constitutional, statutory, or common law rights.

Question 31

What does it mean to be adversely affected within the meaning of the relevant statute?

Answer 31

Interest that person asserts is within the zone of interests protected by the statute. Prudential standing

Question 32

What agency action is reviewable under 704?

Answer 32

1) Action specifically subject to review by statute.
2) Final agency action for which there is no adequate remedy in court. Finality doctrine.

Question 33

Can you get review of a final agency action if you have not appealed the decision within the agency?

Answer 33

Yes, unless:
1) the agency requires an appeal by rule and stays its action pending the appeal
2) Statute expressly requires appeal to “superior agency authority”

Question 34

When might an APA claim not be ripe?

Answer 34

Pre-enforcement review. But see Abbot Labs.

Question 35

Where can you bring APA claims?

Answer 35

1331 venue: 1) ∆ resides, 2) substantial part of acts/omissions underlying claims occurred, 3) π reside. Always in DC b/c fed. agencies all live there lol.

Question 36

What is the doctrine of primary jurisdiction?

Answer 36

Where an agency has jurisdiction to oversee litigation b/tw private parties, courts will let the agency deal with it first.

Question 37

What is the doctrine of representational standing?

Answer 37

An association can sue in its own name on behalf of its members if:
1) One of its members would have standing to bring the action;
2) The lawsuit relates to the purpose of the organization; and
3) Neither the claim nor relief requires participation of individual members (not for damages).

Question 38

Can enviro groups assert injury in fact if there has been no demonstrated harm to the environment?

Answer 38

Yes—if reasonable fear causes them to not use the resource. Laidlaw.

Question 39

Can members of the public assert a procedural injury to challenge agency action?

Answer 39

No. No b/c it’s not concrete and particularized. For example, losing your right to comment on timber sales via a forest service rule, even where statute says you have that right, is not an injury for purposes of standing. Summers v. Earth Island

Question 40

What effect does intelligence gathering and foreign affairs have on standing?

Answer 40

Courts less likely to find standing where reviewing actions of the “political branches” concerning those topics. Amnesty International

Question 41

Is incurring additional costs an injury for purposes of standing?

Answer 41

Only if incurred to avoid actual, imminent harm. Think GMO alfalfa.

Question 42

Can intangible injuries be concrete?

Answer 42

Yes. Free speech, free excercise.

Question 43

When can you get judicial review of agency action when it is precluded by statute?

Answer 43

When the agency action is plainly beyond its authority; error of “summa or magna quality.”

Question 44

When is agency action committed to agency discretion by law?

Answer 44

When “there is no law to apply,” generally. Ctzns Overton Park

Question 45

When might a decision committed to agency discretion by law be reviewable?

Answer 45

When it violates the constitution. No discretion to violate the constitution. Like when the CIA fired that gay man.

Question 46

Can an agency program constitute final agency action?

Answer 46

No.

Question 47

What is the meaning of “failure to act” for purposes of judicial review?

Answer 47

Failure to take a discrete agency action that is required by law. SUWA

Question 48

What is the Supreme Court’s definition of final agency action?

Answer 48

1) Consummation of agency’s decisionmaking process.
2) One by which rights or obligations have been determined or from which legal consequences will flow.

Question 49

When are opinion letters final agency action? When are they not?

Answer 49

1) Addressed directly to π; π represents a large number of entities; comprehensive ruling on multiple common situations.
2) Addressed to third party; limited to factual situation presented by the requesting party; future application; subject to change.

Question 50

When might administrative exhaustion not be required under common law/non-APA cases?

Answer 50

1) When requiring resort to administrative remedy causes undue prejudice to subsequent assertion of a court action. i.e. precludes a defense; irreparable harm
2) When there is some doubt as to whether the agency has the power to grant effective relief.

Question 51

When might administrative exhaustion be required under common law/non-APA cases?

Answer 51

1) Express congressional intent that parties exhaust remedies.
2) Involves agency’s discretionary power.
3) Danger of flouting the administrative process.

Question 52

Can courts impose additional exhaustion requirements on a final agency action?

Answer 52

No.

Question 53

What happens if you invoke existing administrative appeal procedures for a final agency action?

Answer 53

It becomes unfinal for purposes of judicial review.

Question 54

How was arbitrary and capricious review articulated in State Farm?

Answer 54

1) Agency must examine the relevant data and articulate a satisfactory explanation for its action including rational connection between facts and choice made.
2) Decision must be based on consideration of the relevant factors; cannot be a clear error of judgment.
3) Can’t rely on factors Congress did not intend agency to consider, miss an important aspect of the problem, offer explanation that runs counter tot eh evidence, offer implausible explanation.

Question 55

What does an Court of Appeals do if appealed to directly from an agency re ex parte contacts?

Answer 55

Direct agency to appoint an ALJ to fact find on whether there were ex parte contacts and how they affected the agency’s decision.

Question 56

What does 554(d)(1) prohibit re ex parte contacts?

Answer 56

ALJ cannot consult any person on a “fact in issue” unless notice and opportunity to participate is given to all parties.