Admin Law Final Outline– Pierce (Fall 2006)
*Outline Summary
1. Challenges To Defenses Of Agency Action: Challenging Statute, Adequacy of Process, Availability of Review, Scope of Review
2. Introduction to Agencies and Administrative Law: Agencies, Constitution, Statutes, Key Doctrine, Principles, Models, Key Functions
3. Agencies In A System Of Separated Powers: Congress, Executive, Courts
4. Agency Rulemaking: Introduction, Process, Formal, Informal, Legislative, Non-Legislative, Requirements, Benefits/Burdens, Exemptions
5. Agency Adjudication: Introduction, Formal, Informal, Constraints, Permitted, Requirements, Consistency, Controlling With Rules, Due Process
6. Availability of Judicial Review of Agency Action: Agency Action, Agency Inaction, Finality, Ripeness, Exhaustion, Standing – C & Statutory
7. Scope of Judicial Review of Agency Action: APA, Chevron, Substantial Evidence, Arbitrary and Capricious, Remedies, Modern Dispute
I. Challenges To and Defenses Of Agency Action
A. Challenging the Underlying Statute Itself
1. Congress lacked the authority to delegate such legislative (rulemaking) / judicial (adjudication) power to an agency
a. Non-Delegation Doctrine
b. Intelligible Principle Requirement
c. Statutory Precision
2. Congress improperly aggrandized core executive functions for itself
a. Appointment Power
b. Presumed Removal Power
c. Commander in Chief Power
d. Executive Order Power
3. Congress improperly delegated core judicial functions to agencies
a. Private Rights Disputes
B. Challenging the Adequacy of the Process and Procedures
1. General Problems
a. Lack of Trial-Like Hearing (Formal Adjudication / Formal Rulemaking)
b. Bias and Prejudgment
c. Ex Parte Communications
2. Adjudications
a. Violated Its Own Procedural Rules
b. Violated Party’s Due Process Rights (Liberty / Property)
c. Violated Required Statutory Procedures
3. Rulemakings
a. Inadequate Notice
b. Inadequate Opportunity to Comment
c. Inadequate Disclosure of Relevant Materials
d. Inadequately Foreshadowed by Proposed Rule
e. Inadequate Consideration of Comments or Alternatives
f. Inadequately Justified by the Record (or Post-Hoc)
C. Challenging the Availability of Judicial Review
1. Agency Action Is Presumptively Reviewable
2. Agency Inaction Is Presumed Unreviewable
3. Judicial Review Is Precluded By Statute §701(a)(1)
4. Decision Is Committed To Agency Discretion By Law §701(a)(2)
5. Agency Action Is Not Final
6. Agency Action Is Not Ripe For Review
7. Petitioner Has Not Exhausted Administrative Remedies
8. Petitioner Lacks Constitutional Standing (Injury In Fact, Causation, Redressible)
9. Petitioner Lacks Statutory Standing (Zone of Interests)
D. Challenging the Scope of Judicial Review
1. Agency AbusedIts Discretion §701(b)(1)
2. Agency Acted Arbitrarily and Capriciously
a. Failed To Enact the Clear Intent of Congress
b. Failed To Engage in Reasoned Decision Making
c. Failed To Adequately Consider Comments
d. Failed To Provide Adequate Basis and Purpose
e. Failed To Consider or Rebut Key Alternatives
f. Failed To Develop Adequate Record Supporting Decision
g. Failed To Weigh High Costs Against Uncertain Benefits
h. Failed To Explain Departure From Precedents and Prior Policies
3. Court Abused its Discretion
a. Failed To Enforce the Clear Intent of Congress
b. Failed To Defer to Reasonable Agency Interpretation
c. Impermissibly Added New Procedural Requirements
II. Introduction to Agencies and Administrative Law
A. Agencies (APA §551): created by statute, agencies are govt. authorities that are not the legislature, courts, territorial governments, or president
1) Executive Agencies: located in exec, generally w/ 1 person heading the agency (often cabinet level) who’s removable by prez at will
2) Independent Agencies: multi-member agencies, vacancies filled by Prez w/ Senate confirmation, no more than bare majority of members of same party,serve staggered fixed terms, removable by prez only for good reason
B.Constitution: makes no reference to agencies, but agency actioncan implicate due process (especially adjudication)
1) Is Due Process Implicated? Protectedliberty property interests (statutory (Goldberg, 1970) other entitlements (Roth, 1972)
2) If Yes, What Procedures Are Required? Balance private interests affected, the risk of erroneous deprivation through the existing procedure and the value of more process, and the government’s interest (includes fiscal/admin burdens) (Matthews, 1976)
C.Statutes: shape agency action, especially the APA (1946) which imposes a set of procedures and provides for judicial review
1. APA §553: rulemaking must afford opportunity for N&C & final rule must include concise general statement of its basis & purpose
2. APA §554: adjudication must note time, place, nature, jurisdiction, authority, matters of fact/law for hearing & chance to respond
2. APA §555: requiring only minimal procedures in informal adjudications
3. APA §556-557: formal adjudication/rulemaking trial-like procedures (e.g. “on the record only after opportunity for agency hearing”)
4. APA §701: judicial review provisions apply unless statute precludes it or action is committed to agency discretion by law
5. APA §704: actions are reviewable if made reviewable by statute or final agency action for which there’s no adequate court remedy
6. APA §706: courts can strike down agency action that’sA&C, abuse of discretion, not in accordance w/ law, contrary to Cal rights, in excess of statutory jurisdiction, w/o proper procedure, unsupported by substantial e(formal),or unwarranted by facts (in de novo review)
D. Key Doctrines
1. Agency action is presumptively reviewable (Abbott Labs, 1967)
2. Agency inaction is presumptively unreviewable(Heckler v. Chaney, 1985)
3. Agencies can choose to act via rulemaking or adjudication (Chenery, 1947)
4. Agencies must disclose the materials upon which rules are based (Nova Scotia Food, 1977)
5. Courts cannot add procedural requirements to agency action (VT Yankee, 1978)
6. Courts must set aside agency action that is arbitrary and capricious (State Farm, 1983)
7. Courts must uphold any reasonable agency interpretation of an ambiguous statute (Chevron, 1984)
8. Agenciesmust ensure due process by following their own procedural rules, statute, and the due process clause
9. Agencies must provide a record that explains the basis of their decision (Overton Park, 1971)
10. Agency decisions must be sufficiently justified (Chenery, 1947)
11. Agencies cannot issue a final rule inadequately foreshadowed in a proposed rule (CT Light)
12. Agencies can announce new policies in adjudications (Chenery, 1947)
13. Courts must judge propriety of agency actions on grounds cited by agency in record and not later justifications (Chenery, 1947)
14. Government will use Chevron to defend agency action and Heckler to defend agency inaction
E. Agency Structure & Principles
1.Separation of Functions (§554D): internal personnel - adjudicators, prosecutors, investigators - are separated to promote neutrality
2. Role of ALJ: APA protects ALJs from some agency interference (tension: adjudicatory independence vs. managerial responsibility)
3.Role of Agency: agencydecisions are based on records created in ALJ proceedings, briefs filed, oral arguments, but an agency is free to accept or reject an ALJ’s findings of fact and conclusions of law (agency has all the powers it would have in making the initial decision)
F. Models of Government Action
1. Judicial: closed & politically neutral (e.g. trials)
2. Legislative: open & intensely political (e.g. lobbying, televised)
3. Bureaucratic: impersonal & institutional with objectively verifiable criteria (e.g. measurements, data)
G. Key Agency Functions: agencies adjudicate disputes with individuals and announce and apply generally applicable rules of conduct
1. Formal Adjudication (§554-57): trial-like proceedings required ifstatute says “on the record only after opportunity for agency hearing”
2. Informal Adjudication (§555): (majority of agency decisions are made through this process) whenever statute authorizes adjudication but w/o magic words requiring formal, trial-like procedures requires in §554-557, more informal procedures apply (APA: few guidelines)
3. Informal Rulemaking (§553): notice (time/place), comments (read/consider), issue final rule (similar process to legislative process)
4. Formal Rulemaking (§553, 556-57): notice, comments, final rule,and oral evidentiary hearing
H. Scope of Agency Action
1.Rulemaking & Adjudication: agencies are the dominant adjudicators & rule-makers participating in 100 times more adjudications than courts and 100 times more rulemakings than Congress (e.g. CMMS = 6 million; SSA = 2 million)
2. Bureaucratic Action (SSA): 3 million decisions a year are made by the initial agency bureaucracy, 300K are appealed to ALJs, 30K are then appealed to an agency Appeals Council, and of those 10K are reviewed in federal district courts
I.Distinguishing Between Rulemaking and Adjudication
1. Rule: agency statement of general or particular applicability & future effect designed to implement, interpret, or prescribe law or policy
2. Adjudication: application of a statute or other legal standard to a given fact situation involving particular individuals or parties
3.Agency Discretion: agency has significant flexibility to use rulemaking or adjudication(Chenery 1947; Bell Aerospace, 1974) EXCEPT
a. Congress Can Explicitly Require Agencies to Act By Rule: (e.g. CAA ambient air stds, Medicare reimbursement)
b. Agencies Can’t Disperse $ Ad Hoc: BIA must announce std for dispensing welfare rather than deciding eligibility on ad hoc basis that denies needy Indian who moved off-reservation arbitrarily (Morton v. Ruiz, 1974 Blackmun)
c. Limited Retroactivity: can apply rules retroactively in adjudications to bind the parties to the case, which is not allowed in issuing legislative rules which can only have future effect (Georgetown 1988)
4. Agency Preference for Adjudication: quicker & cheaper than rulemaking after State Farm, rules can be applied retroactively (Georgetown, 1988), and its less transparent (agencies don’t want to be held politically accountable for policy decisions)
III.Agencies In A System Of Separated Powers
I. Agencies and Congress (Article I)
A. Congressional Limits on Agency Power
1) Constitutional Power: all legislative power shall be vested in a Congress
2) Delegation Required: agencies can only act to the extent that they’ve been lawfully delegated their power (non-delegation doctrine)
3) Delegation Concerns
a.Rulemaking as Abdication of Legislative Power: Whether Congress has given an agency so much rulemaking discretion that Congress has abdicated its responsibility to exercise “all legislative powers” as granted by the Constitution
b. Adjudication as Usurping Judicial Power: Whether Congress has given an agency so much adjudicatory power that Congress has undermined the federal courts’ authority to exercise the judicial power as granted by the Constitution
4) Intelligible Principle Requirement: modern delegations of legislative power to agencies will be upheld so long as Congress states some intelligible principle that guides agency’s decision-making & even “just & reasonable” is okay (J.W. Hampton, 1928)
a. Minimal Limits: SC only once invalidated Congress’ delegation of policy power to agencies as too broad (Schechter, 1935) (invalidated NIRA’s creation of private boards of producers to determine permissible output pricing of every good sold in US)
b. Statutes Can Employ Rough Proxies: Congress can pass laws that use rational factors that reasonable correlate with their goals even if they are not perfect measures for achieving them
i. Rational Proxy Examples: 16 year old driving age, 18 voting age, 21 drinking age (these are all allowed even though some people aren’t ready until later and others are ready before these ages)
ii. Irrebuttable Presumption Doctrine Is No Longer Good Law: the irrebuttable presumption doctrinerequired a proxy in a statute to be “necessarily or universally true” to pass muster but it is no longer required
-Example: food stamp provision meant to block college kids of rich parents from being eligible didn’t rest on irrebuttable presumptioncuz tax dependency one year isn’t always related to “need” of dependent the following year; led DOA to deny food stamps to a poor grandma w/ 12 kids on $57 a month (Murry, 1973)
c. Congress Can Broadly Delegate Price Setting: statute delegating power to set all wages & prices to Nixon & used for wage freeze upheld, where only limits were to “avoid gross inequities” & 6-month sunset provision (Amalgamated Meat, D.C. 1971)
i. Alleged Safeguards:limited duration, foreign relations, implicitfair & equitable standard, allowed judicial review
d. Congress Can Prioritize Broad Non-Economic Goals: CAA properly delegated legislative power to EPA to make air quality standards “to protect public health,” w/o considering costs given statutory language & context (Whitman v. Am Trucking, 2001)
e. Rationale for Clear Statutory Standards: broad delegations of legislative power absent clear standards prevents political accountability and fosters an environment in which corruption, cronyism, and patronage can thrive
f. Problems with Unclear Statutory Standards: can’t determine the applicable standards (courts), conform behavior to meet them (private parties), properly carry them out (executive), or effectively monitor or reform them (legislature)
5) Statutory Precision: Congress can & often does mandate specific commands to agenciesthat may become obsolete, unproductive, ill-fitting, or hard to modifyor remove, but courts pretty much let Congress struggle to craft optimal standards
a. Delaney Clauses (Classic Exampleof Statutory Precision): barred approval of food or color additives, drugs or pesticides found to induce cancer in man or animals w/o consideration of scope of risk to humans or if benefits outweighed the risks
i. Saccharin Ban (1977): limited knowledge of cancer & growing fear of “deadly” carcinogens led to inflexible ban despite benefits to diabetics that outweighed minimal risk of cancer (ultimately re-worded so statute wouldn’t apply)
b. Modern Health Tradeoffs (Risk-Risk): in 1996 Public Citizen sued FDA to require removal of most pesticides from market, but FDA believed that would massively increase incidence of cancer by reducing availability of produce & increasing its costs
B. Statutory Environment of Federal Administration
1)Statutes Promoting Procedural Fairness and Openness
a. Minimum Procedures for Formal Actions: all federaladministrative tribunals andofficialsare subject to uniform requirements in formal rulemaking or formal adjudicationw/an opportunity for court review of agency compliance (APA, 1946)
b. Transparency & Disclosure: agencies are required to publish agency rules (FRA, 1935), disclose requested records (FOIA, 1966), and hold public meetings with advance notice (GISA, 1976)
2)Procedural Statutes With Substantive Goals
a.Hurdles to Agency Action: agencies muststudy & consider alternatives when burdening environment (NEPA 1969), small biz (RFA 1980), private sector (PRA 1980), or state/local govt (UMRA 1995)using high-quality data (DQA 2000)
3)Statutes Safeguarding the Integrity of Agency Decision Makers
a.Civil Service Security: stifle partisan appointment/removal (CSRA, 1978) & protect whistleblowers (WPA, 1989)
b.Stop Fraud, Waste, Abuse: disclose $ holdings (EIGA, 1978), use IGs to oversee, audit, prosecute (IGA, 1978)
C.Other Legislative Influence
1)ConductingOversight: hearings, inquiries, casework monitoring
2)Imposing Deadlines: Congress can set statutory deadlines requiring agency action (e.g. w/in 120 days) though courts usually only impose “good faith” efforts on agencies to meet them
3)SettingLegislative Defaults: Congress can impose defaults, like a “Hammer provision,” making proposed regs final if after a certain period of time (e.g. 2 years) the agency fails to have implemented regs (used by Congress to prevent agency inaction)
4) Defining Agency Powers: Congress can pass statutes giving agencies more or less power (e.g. rulemaking, litigation authority)
(e.g. gave DOL formal rulemaking power in Walsh-Healy Act on prevailing wage challenges to claim support for pro-union & anti-union)
5) Directing Appointment of Inferior Officers: Congress can direct the appointment of inferior officers by Prez, courts, or dept heads
6) Limiting Presidential Removal Power: Congress can limit Prez’s power to remove to “for cause” w/ good functional reasons that don’t interfere with Prez’s performance of Constitutional duties (e.g. court-appointed independent counsel to investigate executive wrongdoing)
7)Making Appropriations & Confirmations: Congress can use the appropriations process(increase, decrease, riders)andthe confirmation process (secure favors) for leverage over agencies
8) Allocating Litigation Authority: Congress can allocate litigating authority between DOJ & agencies (DOJ guards right to go b4 SC)
D. Limitations on Congressional Influence
1) Separation of Powers (Power Grabs vs. Adding Checks): SC has struck down acts by Congress that usurp executive power for itself, while upholding acts limiting executive power in a way that adds checks that Congress itself doesn’t control
Power Grabs (Congressional appropriations to itself of core Presidential functions will likely be struck down)
a. Legislative Veto Unconstitutional: Congress can’t retain for itself a right to veto executive action involving deportation if it strips the Prez from a Constitutionally required process (e.g. violates presentment and bicameralism) (Chadha, 1983, formalist)
i.Congressional Review Act (1996): authorized Cong veto consistent w/ bicameralism presentment, but has only been used once (e.g. Repub Cong revoked OSHA ergonomic rules biz thought too costly after Bush was elected)
b. Controlling Spending Through Comptroller Unconstitutional: Congress can require Prez to cut spending, make CG removable only by its own joint resolution (makes CG its agent), but CG can’t then determine spending levels for prez since that’s an exec decision (e.g. can’t delegate to its own agent power to make core executive decisions) (Bowsher, 1986, formalist)
c. Barring Presidential Removal Absent Senate Confirmation Unconstitutional: Congress can’t wholly block executive removal of a postmaster by passing statute that requires Senate confirmation prior to presidential removal (Myers,1926)
d.Having Congressmen Serve on Administrative Bodies Unconstitutional: Congress can’t appoint its own members to an administrative body handling airplane noise from D.C. area airports (MWAA v. Citizens for Abatement of Aircraft Noise, 1991)
Adding Checks(blending judicial, legislative, executive functions may be upheld especially when check comes from courts)
a. Court-Appointed Independent Counsel Is Constitutional: Congress can have court appoint IC to investigate exec branch wrongs & make IC removable by AG only “for cause” cuz its not Cong grabbing power (Morrison v. Olson, 1988, functionalist)
b. Judicial Sentencing Commission is Constitutional: Congress can create an independent sentencing commission in the judiciary cuz it doesn’t enhance Congress’ power but merely removes a burden on it (Mistretta v. US, 1989, functionalist)
2) Due Process: in adjudication Congressional influence is limited by due process (e.g. can’t unduly influence given requirement of a neutral decision-maker and ban on ex parte communications)
II. Agencies and the Executive (Article II)
A. Executive Limits on Agency Power
1) Sources of Constitutional Power
1. Vesting Power Clause: power of executive is vested in the prez
2. Opinion in Writing Clause: prez can require any officer’s opinion in writing to him at any time (e.g. filter budget requests)
3. Take Care Clause: prez shall take care that the laws be faithfully executed (source of prez power? duty?)