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PART II CONSTITUTIONAL RIGHT TO A HEARING

Intro What process received vs. What additional or alternative process allegedly due
o 5
th
Amendment- no person shall be deprived of life, liberty, or property w/o DP of law
14
th
Amendment- applies it to states
o Substantive DPlimits on what govt !an reg"late
o Procedural DPpro!ed"res by whi!h govt may affe!t individ"als rights
#1$ %tate A!tor &'agen!y()
#*$ Deprivation of &'a!tion()
#+$ ,iberty or Property
Rothstandard for what !onstit"tes property
Stigma plus Testliberty interest &deprivation of whi!h res"lted from !hange in
legal stat"s)
#4$ -itho"t 'd"e pro!ess of law(
Identify pro!ed"re "sed vs. what pro!ed"res allegedly d"e &./0 there was post
deprivation review, b"t I wanted pre deprivation review)
o %tart here 12.3 go to 4atthews fa!tors
2earings and welfare termination0 d"e pro!ess and mass 5"sti!e
o Goldberg v. Kelly6 d"e pro!ess re7"ires an evidentiary hearing before welfare benefits are
terminated, 891 does not need to be a 5"di!ial or 7"asi-5"di!ial trial
:t stressed fa!t that welfare is ne!essary to obtain essential food, !lothing, ho"sing, et!
-ritten s"bmissions are not s"ffi!ient &m"st have !han!e to be heard orally)
Required elements o hearing6 right to present oral eviden!e, !onfront adverse
witnesses, right to !o"nsel, impartial de!ision ma;er
-elfare benefits be!ame property by virt"e of a stat"te
Interests Prote!ted by D"e Pro!ess0 ,iberty and Property
o !oard o Regents v. Roth6 tea!her hired for 1 yr term< informed his = wont be renewed
2eld0 no !onstit"tional right to a statement of reasons as to why the 9niversity de!ided
not to rehire >oth
Roth Test0 1o have a property interest in a benefit, a person !learly m"st have more
than an abstra!t need or desire for it? 2e m"st have more than a "nilateral e/pe!tation
of it? 2e m"st instead have a legitimate !laim of entitlement to it?
,iberty not at sta;e 6 name or rep"tation was not at sta;e, no severe disadvantage for
finding other employment, no law giving >oth an interest in being rehired
Stigma Plus Test6 state imposition of a stigma is not an invasion of liberty w/o some
other !hange to right or stat"s
o @@"roperty rights are !reated by independent so"r!es of law s"!h as state stat"te &not :onst?)
o #merican $anuacturers v. Sullivan6 no DP rights available to an appli!ant for benefits b/!
"nder appli!able state law, entitlement to benefits is only established when the medi!al
treatment so"ght is determined to be reasonable and ne!essary
Disting"ished from $athe%s and Goldberg be!a"se those dealt with indi!d"als
interest in !ontin"ed payment of benefits
o To%n o &astle Roc' v. Gon(ales6 stat"te whi!h said that poli!e offi!ers Ashall arrest one who
violates a restraining order did not !reate an entitlement to a property interest and to d"e
pro!ess
o &leveland !oard o )ducation v. *oudermill6 state stat"tes !an only !reate an entitlement to
d"e pro!ess b"t !annot di!tate what pro!ed"res will satisfy d"e pro!ess re7"irements "nder the
federal !onstit"tion
If employer !an only dismiss for good !a"se entitlement
o Deprivation m"st be more than de minimus &Goss v. *ope()
1
S%ic' v. &ity o &hicagopla!ing !op on paid si!; leave so that he !o"ld not wear
badge, !arry g"n, or arrest people is a de minimus deprevation
1iming of 1rial-type 2earings
o $athe%s v. )ldridge6 a f"ll evidentiary trial-type hearing is not re7"ired by DP before %o!ial
%e!"rity benefits are terminated
Mathews Factors- In determining what pro!ess is d"e &timing, elements), !onsider0
(1) the private interest that will be affe!ted by the offi!ial a!tion
(2) the ris; of erroneo"s deprivation of s"!h interest thro"gh pro!ed"res "sed B
and the probable val"e, if any, of additional or s"bstit"te pro!ed"ral safeg"ards
o greater the differen!e, the more heavily this fa!tor is weighed
(3) the govt interest, in!l"ding f"n!tion involved and fis!al and administrative
b"rdens that additional pro!ed"re wo"ld entail
o %ill it impede the ob+ective o the agency,,
@@.CA40 fa!tors may go different ways b"t !an still ma;e !on!l"sion &resist
temptation to ma;e them all point the same way)
Disting"ished from Goldberg0 eligibility not based on finan!ial need< medi!al
assessment easier than welfare need assessment and less li;ely to depend on !redibility
of witnesses< ability to "se written s"bmissions more effe!tively than welfare re!ipients
o In !ases of emergency, state !o"ld deprive individ"al of property or liberty w/o prior hearing,
even if later remedy is inade7"ate &S)) !-G pg. .)
.lements of a :onstit"tionally Dair 2earing
o -ngraham v. Wright6 DP does not re7"ire prior noti!e and an opport"nity to be heard before a
st"dent is paddled
1wo %tep Analysis0 whether asserted interests are en!ompassed by d"e pro!esss
prote!tions &here, liberty) E what pro!ed"res !onstit"te d"e pro!ess &$athe%s Da!tors)
D10 !orporal p"nishment impli!ates a !onstit"tionally prote!ted liberty interest
D*0 low ris; of erroneo"s deprivation b! tea!her sees mis!ond"!t and stat"tory remedy
&tort) are f"lly ade7"ate to prote!t DP
D+0 in!remental benefits of prior hearing !annot 5"stify !ost &primary responsibility is
to tea!h)
o Goss v. *ope(6 s"spension of high s!hool st"dent for 1F days is a deprivation of property and
liberty< there is an entitlement to a hearing, b"t not a f"ll evidentiary hearing, really 5"st a
!onversation w/tea!her
Disting"ished -ngraham b! there, to be effe!tive, tea!her m"st p"nish on the spot
o *u+an v. GG /ire Sprin'lers6 when govt brea!hes a !ontra!t, d"e pro!ess is satisfied by
relian!e on state !ontra!t remedies
o !oard o &urators 0niv. o $o. v. 1oro%it(6 st"dent dismissed for a!ademi! rather than
dis!iplinary reasons are entitled to m"!h less prote!tion, sometimes none at all
3o d"e pro!ess if no disp"ted fa!ts< if dis!retion is involved in de!ision tho"gh, there
is an interest in how that dis!retion is "sed
o 2an 1ar'en v. &ity o &hicago6 de!riminaliGing par;ing ti!;et system so that offi!ers do not
have to show "p in !o"rt is valid d"e pro!ess "nder $athe%s v. )ldridge
o Walters v. 3ational #ss4n o Radiation Survivors6 stat"te limiting attys fees to H1F in IA
!ases provided ade7"ate d"e pro!ess< want to honor :ongresss intent that veterans not have
to divide award w/atty
o &T 5ep4t o "ublic Saety v. 5oe6 !onvi!ted se/ offender disp"ted in!l"sion on a website-
p"blished se/ offender registration list b/! he said he was not dangero"s
*
ADangero"sness not relevant to stat"te, only fa!t re7"ired was !onvi!tion to be
in!l"ded
D"e pro!ess only re7"ires a hearing when a relevant iss"e of fa!t is in disp"te
o 1amdi v. Rumseld6 d"e pro!ess entitles a 9% !itiGen detained as an enemy !ombatant to
noti!e of the fa!t"al basis for the !lassifi!ation as s"!h and opport"nity to reb"t the assertions
8e!a"se of e/igen!y of !ir!"mstan!es, hearing may be tailored to alleviate high b"rden
on govt &i?e?- allowing hearsay eviden!e)
>"lema;ing versus Ad5"di!ation
o d!udication- govt a!tion that affe!ts identifiable persons on the basis of fa!ts parti!"lar to
ea!h of them
pro!ed"ral d"e pro!ess applies
o Rulema"ing 6 govt a!tion dire!ted in a "niform way against a !lass of people
pro!ed"ral d"e pro!ess does not apply
o *ondoner v. 5enver6 right to an oral hearing when !ity of Denver established a !ommittee to
determine a ta/ to !over single street paving and how that ta/ wo"ld be apportioned
,oo;ed more li;e a 5"dgment, rather than a general ta/ we all pay
o !i6$etallic v. State !oard o )quali(ation6 no right to a hearing when the matter at iss"es
affe!ts the general p"bli! &i?e? in!rease of val"ation of property a!ross the board)
,imits of DP in r"lema;ing
:itiGens !an prote!t their rights thro"gh the vote
o &unningham v. 5ept o &ivil Service6 hearing is re7"ired when determining entitlement of a
!ity employee to priority to a new position when that priority depends on !omparing old
position to new position 6 ad5"di!ative iss"e
o #naconda v. Ruc'elshaus6 no d"e pro!ess re7"ired when .PA imposed a r"le that was general
in form, b"t a!t"ally only affe!ted one entity
o d!udicative Factsspe!ifi! fa!ts abo"t a parti!"lar disp"te
9s"ally answer the 7"estions of who did what, when, where, et!?
o #egislative Factsbroad general problem
9s"ally dont !on!ern the immediate parties b"t are general fa!ts whi!h help the
trib"nal de!ide iss"es of law and poli!y
PART III ADMINISTRATIVE ADJUDICATION: UNDAMENTAL PRO!LEMS
Introd"!tionDederal APA and 1JK1 4%APA do not re7"ire ad5"di!ative hearings
o ,ay gro"nds r"les for formal hearings b"t only need to "se those pro!ed"res when an e/ternal
so"r!e re7"ires a hearing
D$%D&'T&() R%#*M+&),
&n-ormal no re7"irements "##$ 6 noti!e and !omment
Formal
"##% noti!e to parties, separation of f"n!tions
"##& trial type hearing w/ A,L, e/!l"sive re!ord
"##' formal findings, ban on e/ parte !onta!ts
"##& trial type hearing w/ A,L, e/!l"sive re!ord
"##' formal findings, ban on e/ parte !onta!ts
%tat"tory 2earing >ights 6 e(er)*
o If federal stat"te !alls for an agen!y hearing that is 7on the record4, it signals that :ongress
intended a formal ad5"di!ation &triggers .//0 and .//1 re7"irements)
In absen!e of s"!h lang"age, :ongress m"st !learly indi!ate intent to trigger formal
hearing &&ity o West &hicago v. 3R&)
+
o .//2 6 formal ad5"di!ation re7"irements
Agen!y m"st separate prose!"ting and ad5"di!ating f"n!tions
3o e/ parte !onta!t allowed w/de!ision ma;er
4"st allow !ross-e/amination
In private party wins and agen!ys position was not s"bstantially 5"stified, private party
is entitled to re!over attys fees
2earing m"st be !ond"!ted by an A,L
o 5ominion )nergy v. 8ohnson6 no evidentiary hearing re7"ired when agen!y determined
whether to grant a :-A varian!e permit b/! :-A does not re7"ire hearing Aon the re!ord
Seacoast 6 overr"led< previo"sly held that there was pres"mption that agen!y hearings
were formal "nless otherwise stated
&hevron 6 * step analysis
Did :ongress provide for their intention as to how the stat"te sho"ld be
interpretedMM
- yes N !ongressional intent !ontrols
- no N whether As answer is based on permissible !onstr"!tion of the stat"te
@@&hevron analysis only applies when the agen!y is interpreting its own stat"teOO
%tat"tory 2earing >ights 6 S+)+e
o 1JK1 4%APA 6 formal ad5"di!ation pro!ed"res apply to A!ontested !ases &pro!eedings
in!l"ding, b"t not limited to, ratema;ing and li!ensing, in whi!h the legal rights, d"ties or
privileges of a party are re7"ired by law to be determined by an agen!y after an opport"nity
for hearing)
o Sugarloa &iti(ens v. 3ortheast $aryland Waste 5isposal #uthority6 hearing is re7"ired b/!
de!ision to grant a permit for b"ilding a waste in!inerator site is a A!ontested !ase
o $etsch v. 0niversity o /lorida6 hearing is not re7"ired when a law s!hool appli!ant is denied
admission b/! D, APA pro!ed"res for formal hearings only apply when a partys s"bstantial
interests are at sta;e e9cept when a st"dents interests are determined by the %tate 9niversity
%ystem
,imiting Iss"es to whi!h 2earing >ights Apply
o 1ec'ler v. &ampbell6 %e!retary of 22% may rely on p"blished medi!al-vo!ational g"idelines
to determine !laimants right to %% benefits instead of holding a hearing on the iss"e
Agen!y may rely on r"lema;ing a"thority to determine iss"es that do not re7"ire !ase-
by-!ase !onsideration
:laimant may present eviden!e spe!ifi! to their ability or arg"e that g"idelines do not
apply to them
1his s"bstantive iss"e is not personal to !laimant 6 iss"e is 5"st whether there are 5obs
in the !o"ntry for people w/!ertain !hara!teristi!s 61h"s, no need for DP prote!tions
and may appropriately be resolved by r"lema;ing
o #ir *ine "ilots v. 5ept o Transportation6 if !laimant does not show an iss"e of material fa!t is
in disp"te, then there is no need for a hearing, and agen!y !an dispose of !laim w/%L
Instit"tional De!isions and Personal >esponsibility
o 4odels of agen!y de!ision ma;ing
$udicial Model 6 li;e a 5"di!ial de!ision
&nstitutional Model 6 views agen!y as a single "nit
o $organ v. 0S6 agen!y offi!er who ma;es the "ltimate de!ision m"st !onsider and appraise the
eviden!e whi!h 5"stifies that de!ision
9nrealisti! if applied too broadlyPQ; if person hearing the !ase prepares an
intermediate report for agen!y head to ma;e a de!ision on
4
o &iti(ens to "reserve :verton "ar'6 Absent a strong showing of bad faith or improper
behavior, in7"iry into mental pro!esses m"st be avoided
:o"rts !an sometimes demand an e/planation for an agen!ys de!ision< !on!erned
w/s"bstantive review &whether de!ision was rational) not w/pro!ed"ral review
&whether de!ision ma;er was s"ffi!iently familiar w/re!ord)
o >e!ord made at the hearing is the e/!l"sive basis for the de!isionOO
%eparation of D"n!tions
o Wal'er v. &ity o !er'eley6 denial of d"e pro!ess for the same person to serve as the
administrative de!ision ma;er and as a advo!ate for the agen!y in federal !o"rt involving the
same parties and iss"es
o .//2(d) 6 no employee engaged in investigation or prose!"ting may parti!ipate or advise in
the ad5"di!ating f"n!tion 6 agency heads are e9cluded rom this prohibition
A,L may not !ons"lt a person or party on a fa!t in iss"e "nless there is noti!e and
opport"nity for all parties to parti!ipate &does not prohibit !ons"ltation of other agen!y
offi!ials on iss"es of law or poli!y)
8ias
o #ndre%s v. #gricultural *abor Relations !oard6 appearan!e of bias is not eno"gh to dis7"alify
an administrative trier of fa!t &m"st prove a!t"al bias)
8ias refers to 5"dges mental attit"de towards a party, not any views he may entertain
regarding the s"b5e!t &i?e?- e/pressed politi!al or legal views)
-ant to have people in agen!ies w/ e/perien!e in those parti!"lar types of !ases<
politi!ians always appoint those who share their views to agen!y positions
o Personal &nterest"s"ally HHH &pe!"niary)
Ward v. 2illage o $onroeville6 dis7"alified small town mayor from serving as traffi!
!o"rt 5"dge< the more fines !olle!ted, the less ta/ed he wo"ld have to impose on
!onstit"ents
o Pro-essional 3ias when de!ision-ma;er, by profession, has a pe!"niary interest
Gibson v? !erryhill6 dis7"alified board of only independent optometrists when they
r"led that optometrists wo"ld lose their li!ense if they wor;ed for !orporate employers
%:t later ba!;ed away from this position6 board w/ ma5ority of independent
optometrists was not invalid for all p"rposes &non-ad5"di!atory !ases)
o Pre!udgment of the individ"aliGed fa!ts of the !ase
&inderella &areer Schools- agen!y !hair !riti!iGed newspapers for a!!epting ads
strongly resembling the ads by :inderella
Tes+ ,-r D.R %hether a disinterested observer may conclude that the # has in
some measure ad+udged the acts as %ell as the la% o a particular case in
advance o hearing it
o Personal nimus against a parti!"lar litigant or !lass of litigants
./ Parte :onta!ts
o .//1(d) prohibits e/ parte !omm"ni!ations relevant to the merits of the pro!eeding b/w an
interested person and an agen!y de!ision-ma;er or any other employee who may reasonably
be e/pe!ted to be involved in the de!ision-ma;ing pro!ess
'the trans!ript of testimony and e/hibits, together w/ all papers and re7"ests filed in the
pro!eeding, !onstit"tes the e/!l"sive re!ord for de!ision( .//0(e)
A,L !an get e/ parte advi!e from other employees on legal iss"es b"t :A33Q1 on
fa!t"al iss"es .//2(d)(1)
%eparation of D"n!tions >"le may be impli!ated tho"gh
Prohibition e/tends to !omm"ni!ations b/t interested parties and advisers to the agen!y
de!ision-ma;er
5
Does not in!l"de Status Reports &"nless it !o"ld affe!t agen!ys de!ision on the merits)
o Reme(ies
Dis!los"re of improper !omm"ni!ation and its !ontent .//1(d)(1)(')
Iiolating party m"st show !a"se why their !laim or interest sho"ld not be dismissed,
denied, or otherwise adversely affe!ted b/! of violation .//1(d)(1)(D)
o TEST0 In enfor!ing this standard, a !o"rt m"st !onsider whether, as a res"lt of the improper
e/ parte !onta!t, the As de!ision-ma;ing pro!ess was irrevo!ably tainted so as to ma;e the
"ltimate 5"dgment of the agen!y "nfair
1hings to !onsider when ma;ing s"!h a determinationP&S)) !-G; pg. <=)
"#T&: v /*R#6 !onta!t b/t agen!y head and %e!retary of 1ransportation and dinner
w/a "nion proponent who was also a friend were improper, b"t not severe eno"gh to
remand the hearing
1he >ole of Politi!al Qversight
o "illsbury &o v. /T&6 :ongressional in7"iry into the D1: while !ase was pending indi!ating
how :ongressman tho"ght the stat"te sho"ld be interpreted in s"!h a !ase was improper
-hen an investigation fo!"ses on the mental pro!esses of a de!ision-ma;er in a
pending !ase, :ongress is no longer intervening in the As legislative f"n!tion, b"t
rather, in its 5"di!ial f"n!tion
Qnly applies to formal ad5"di!ation
Qnly applies to !ases that are in pro!eedings, does not apply to !ases that only might
rea!h pro!eedings
o In ormal or inormal ad+udications, agen!y !annot rely solely on :ongresss wishes to ma;e a
determination &wo"ld be arbitrary and !apri!io"s)
o Distin!tion b/t !omment on law and poli!y iss"es and !omment of fa!ts that are being
ad5"di!ated
o 5&" /arms v. >eutter6 APA prohibits e/ parte !onta!ts on!e a hearing is anti!ipated< this does
not apply to :ongress, more to how the private party responds
PART IV THE PROCESS O ADMINISTRATIVE ADJUDICATION
Investigation and Dis!overy &prior to hearing phase)
o %"bpoena d"!es te!"m6 !ivil investigative demands by agen!ies see;ing to !ompel dis!los"re
of information to find o"t if law has been violated
o &raib v. !ulmash6 agen!y demand that an individ"al employer dis!lose re!ords that he was
stat"torily re7"ired to ;eep does not violate either the 4
th
or 5
th
Amendments
Reasonableness Test6 investigation m"st be for an a"thoriGed p"rpose and the
s"bpoenaed do!"ments m"st be relevant to the in7"iry
3o self in!rimination !laim when the re!ords are re7"ired to be ;ept in order to enfor!e
reg"latory s!hemes
o :'lahoma "ress &o v. Walling6 probable !a"se is satisfied as long as the s"bpoenaed
do!"ments are relevant to the in7"iry
o Agen!y m"st go to !o"rt to enfor!e a s"bpoena &!annot enfor!e on their own)
o Possible De-enses0 agen!y has no 5"risdi!tion, pro!ed"ral violation in iss"ing the s"bpoena,
re7"est is too vag"e or indefinite or "nreasonably broad or b"rdensome, agen!y is a!ting in
bad faith for an improper p"rpose
o Attorney-:lient Privilege E -or; Prod"!t Privilege
Agen!y !an draw an adverse inferen!e from assertion of privilege
Agen!y !an offer A"se imm"nity
K
Privilege !an only be asserted by person in possession of do!"ments that are being
s"bpoenaed
Does not apply to material seiGed "nder valid sear!h warrant
Does not apply to !orporations, partnerships or "nions
Does not apply if re!ords are re7"ired to be prepared or maintained by stat"te
o Physi!al %ear!hes 6 agen!y m"st show that !hoi!e of entity to be inspe!ted is based on
reasonable and ne"tral standards
Senerally needs warrant, b"t may not apply to pervasively reg"lated ind"stries &i?e?
li7"or or g"n dealers) 6 3urger Rule
4 :riteria0 ?<@s"bstantial govt interest in reg"lating the b"siness,
?A@"nanno"n!ed inspe!tions m"st be ne!essary to f"rther the reg"latory
s!heme, ?.@stat"te m"st advise b"siness owners of the periodi! inspe!tion
program, ?B@sear!h m"st be limited in time, pla!e, and s!ope
o ./!l"sionary >"le 6 eviden!e that was illegally seiGed may still be admissible in
administrative pro!eedings
o :K "ress 6 no probable !a"se re7"ired for agen!y s"bpoenas
o $arshall v? !arlo% 6 warrant is re7"ired for inspe!ting b"siness premises
o Shapiro v? 0S 6 if entity is re7"ired to ;eep re!ords, then no !laim for invasion of priva!y for
agen!y to re7"est prod"!tion of those re!ords
o 0S v. 5oe 6 if possessing the re7"ested do!"ments wo"ld be in!riminatory, then privilege
applies
.viden!e at the 2earing
o .//0(d)- no order in formal ad5"di!ation may be iss"ed thats not s"pported by reliable,
probative, and s"bstantial eviden!e
>e5e!ts the residuum rule
@@4ay be better to arg"e DP here
o 1earsay- agen!y may rely on hearsay, b"t need other eviden!e to ma;e it %. &Reguero)
o &ross )9amination- APA says available when re7"ired for f"ll and tr"e dis!los"re of the fa!ts
O,,ici)* N-+ice agen!ies may ta;e offi!ial noti!e of matters, in!l"ding personal ;nowledge of the
fa!t-finders
o >easoning0 e/pertise of agen!ies
o S)) !-G; pg. <A
Dindings and >easons //1(c)(3)()4 .//1(e)
o D"ndamental re7"irement that de!ision ma;er state findings of fa!t and reasons for de!ision
Applies to quasi6+udicial pro!eedings too &i?e?- permits)
o &iba6Geigy &orp6 pro!ed"res were ins"ffi!ient for stating findings of fa!t and reasons for
de!ision b/! stat"te re7"ired findings based on 1F fa!tors 6 de!ision did not indi!ate how those
fa!tors were de!ided
:o"rt m"st be able to review manner of reasoning, not 5"st the "ltimate de!ision
o Dail"re to state findings of fa!t and reasons for de!ision !annot be remedied by 5ost6hoc
rationali7ations
:ase will be remanded ba!; to agen!y
.ffe!t of De!isions
o >es 5"di!ata &!laim pre!l"sion)
o :ollateral estoppel &iss"e pre!l"sion)
E/ui+)0*e Es+-11e* CDD!) SK)"T-&#* :/ T1-SDDE
o If #s statement or !ond"!t reasonably ind"!es !s detrimental relian!e, # will not be
permitted to a!t in!onsistently with its statement or !ond"!t
Do"r >e7"ired .lements0
T
&1) Party to be estopped m"st ;now the fa!ts
&*) Party m"st intend that his !ond"!t shall be a!ted on or m"st so a!t that the
party asserting the estoppel had a right to believe it was so intended
&+) ,atter m"st be ignorant of the tr"e fa!ts
&4) 2e m"st rely on formers !ond"!t to his in5"ry
o /oote4s 5i9ie 5andy v. $c1enry6 govt is estopped from !olle!ting ba!; ta/es when employer
relied on advi!e of govt a"ditor in not filing a re7"est to transfer their "nemployment ta/
re!ord to a separately in!orporated store
Qnly problem was a single form that wasnt filed and wo"ld have ro"tinely been
approved if it had been filed
o :"$ v. Richmondi6 no estoppel against govt when 3avy offi!er gave in!orre!t advi!e abo"t
retirees ability to ta;e an e/tra 5ob w/o losing 3avy benefits
o 1ec'ler v. &ommunity 1ealth Services- !haritable !lini! was advised by a private !ompany
whi!h handed !laims for govt that its "se of f"nds wo"ld not red"!e its 4edi!aire
reimb"rsements 6 D22% so"ght to re!over e/!ess reimb"rsements
>elian!e on oral vs? written advi!e
>elian!e on private intermediary !ompany v? dire!t govt agen!y
Ins"ffi!ient detrimental relian!e b/! !lini! was only as;ed to repay f"nds it sho"ldnt
have re!eived
o G) v. )"#6 agen!y m"st give fair noti!e to a reg"lated party of what !ond"!t it prohibits or
re7"ires before it !an invo;e san!tions 6 )n-+2er 3)y +- )sser+ es+-11e*44
PART V RULEMA5ING PROCEDURES
Introd"!tion 6 Importan!e of >"lema;ing
o Advantages0 parti!ipation by all affe!ted parties, generally no retroa!tivity, "niformity,
politi!al inp"t, agen!y agenda setting, agen!y effi!ien!y, oversight
o >"lema;ing has be!ome m"!h more b"rdensome and rigid than originally anti!ipated
Definition of 'Rule(
o .//1(2) defines r"le as having general or particular appli!ability 6 !o"rts generally ignore
those words
o ,itigants may want 'ad5"di!ation( to avoid no d"e pro!ess in r"lema;ing b"t if not ormal
ad5"di!ation, then may have more rights if r"lema;ing
DP not re7"ired in >4
o Determining whether r"lema;ing or ad5"di!ation
=ey determinant is U of people
.ven if r"le effe!ts a single entity, hearing not ne!essarily re7"ired
#naconda v. Ruc'elshaus- '1he fa!t that Ana!onda alone is involved is not
!on!l"sive on the 7"estion of whether the hearing sho"ld be ad5"di!atory, for
there are many other interested parties and gro"ps who are affe!ted and entitled
to be heard?(
o >etroa!tivity
!o%en v. Georgeto%n 0niversity 1ospital6 D22% !o"ld not adopt a r"le w/retroa!tive
effe!t even when a prior version of the r"le was invalidating d"e to improper pro!ed"re
d"ring r"lema;ing
Power to adopt re+r-)c+i6e r"les has to be e/pressly granted by :ongress
:on!"rring 6 if r"le has "nreasonable se!ondary retroa!tivity &f"t"re effe!t that
affe!ts past transa!tions), then it may be fo"nd to be arbitrary or !apri!io"s
4ay be impli!it a"thoriGation for retroa!tivity if stat"te !ontains a deadline that
was missed
V
-nterpretive Rules may have retroa!tive effe!t
Initiating >"lema;ing Pro!eedings
o &hocolate $anuacturers #ss4n v. !loc'6 If the final r"le materially alters the iss"es involved
in the r"lema;ing or s"bstantially departs from the terms or s"bstan!e of the proposed r"le,
noti!e is inade7"ate
#ogical (utgrowth Test- noti!e of proposed r"le is ade7"ate if the !hanges to the
originally proposed r"le are in !hara!ter w/original s!heme, and the final r"le is a
logi!al o"tgrowth of the noti!e and !omments already given
o Period for noti!e and !omment usually has to be +F days or more
o Detail re7"ired - .//3(b)(3) 6 either the terms or s"bstan!e of the proposed r"le or a
des!ription of the s"b5e!ts and iss"es involved m"st be dis!losed
o *ong -sland &are at 1ome v. &o'e6 initial proposal that indi!ated that the agen!y was
!onsidering the matter was s"ffi!ient noti!e b/! it was reasonably foreseeable that it wo"ld be
de!ided differently
o "ortland &ement #ss4n v. Ruc'elshaus6 noti!e sho"ld in!l"de data and methods for how the
agen!y form"lated the proposed r"le
o &T *ight and "o%er v. 3R&6 agen!y m"st dis!lose te!hni!al st"dies and data "sed in de!ision
to propose a parti!"lar r"le
o #ir Transport #ss4n v. &#!6 b"rden on petitioner to indi!ate w/reasonably spe!ifi!ity what
portions of the do!"ments are ob5e!ted to and how it might have responded if given the !han!e
P"bli! Parti!ipation
o -normal rulema'ing
9s"al noti!e and !omment pro!ed"res
Agen!ies !an limit !omment to written s"bmissions only
.-noti!e and !omment pro!ed"res are being "sed more often
o /ormal rulema'ing &has almost disappeared b! ineffi!ien!y and time !onstraints)
3o e/ parte !onta!ts
%eparation of f"n!tions provision is not appli!able
If r"les are re7"ired by stat"te to be made 'on the record ater an opportunity or an
agency hearing(, .//0 and .//1 apply
Qtherwise, agen!y not re7"ired to go beyond informal pro!ed"re in .//3
0S v. /* )ast &oast Ry &o6 Aafter hearing in stat"te did not trigger formal r"lema;ing
re7"irements< only re7"ired informal r"lema;ing pro!ed"res
o 1ybrid rulema'ing
%ome stat"tes instr"!t agen!ies to "se more elaborate pro!ed"res than APA informal
r"lema;ing &somewhere between .//3 and .//1)
./0 stat"te may re7"ire legislative hearing and also opport"nity for interested
persons to 7"estion or !ross-e/amine opposing witnesses &see below)
2ermont >an'ee6 reviewing !o"rts !annot impose more pro!ed"ral re7"irements than
are in!l"ded in the APA
APA sets o"t the ma/im"m pro!ed"ral re7"irements :ongress intended to allow
the !o"rts to impose on agen!ies d"ring r"lema;ing
o :o"nter0 DP is triggered
:o"rt !an still "se APA to give a 'hard loo;( and find something 'AE:(
:verton "ar'6 !o"rts !an re7"ire agen!y to provide an e/planation of their de!ision to
allow for 5"di!ial review of their rationale
"!G& v. *T&6 applies 2T >an'ee to informal ad5"di!ation
Agen!ies still have to have a r"lema;ing re!ord, b"t have f"ll dis!retion as to how that
re!ord is developed
J
Pro!ed"ral Dairness in >"lema;ing
o APA and 4%APAs provide that the agen!y de!ision-ma;er m"st a!t"ally !onsider the written
and oral s"bmissions re!vd in the !o"rse of the r"lema;ing pro!eedings .//3(c)
Qthers may prepare a s"mmary for agen!y heads !onsideration
o ./ parte !onta!ts are forbidden in ormal rulema'ing
Agen!y m"st dis!lose their s"bstan!e in the re!ord
o -normal rulema'ing 6 ass"mption that e/ parte !onta!ts are neither banned nor re7"ired to be
in!l"ded in the re!ord
o 1!: v. /&&6 generally !omm"ni!ations before final r"le is iss"ed does not have to be p"t in
re!ord "nless that information is the basis of the agen!ys a!tion< on!e noti!e of proposed
r"lema;ing is iss"ed, agen!y offi!ials who are reasonably e/pe!ted to be involved in the
de!ision sho"ld ref"se any e/ parte !onta!ts
o Sierra &lub v. &ostle6 1!: is not followed in inormal rulema'ing pro!ed"res< only re7"ires
s"mmary of e/ parte !onta!ts if they were fo"nd to be !entral relevan!e to the de!ision
3eed to allow some e/ parte !onta!ts b/! of politi!al pro!ess
o #ss4n o 3ational #dvertisers v. /T&6 an agen!y member may be dis7"alified when there is a
!lear and !onvin!ing showing that he was an "nalterably !losed mind on matters !riti!al to the
disposition of the r"lema;ing
Agen!y heads are appointed to implement !ertain stat"tory programs w/the e/pe!tation
that they have !ertain views
&inderella test for pre5"dgment in ad5"di!ation 6 if a disinterested observer may
!on!l"de that the de!ision-ma;er has in some meas"re ad5"dged the fa!ts as well as the
law of a parti!"lar !ase in advan!e of hearing it
Iss"an!e and P"bli!ation
o APA .//2(a)(1) 6 r"les are re7"ired to be p"blished and are normally not effe!tive "ntil a
!ertain period after their p"bli!ation
o /ederal Register #ct 6 Dederal >egister is p"blished daily w/all r"les of general appli!ability
and legal effe!t and noti!es of proposed r"lema;ing
o APA 6 effe!tive no sooner than +F days after p"bli!ation in Dederal >egister
o 1JV1 4%APA 6 effe!tive +F days after latest of filing, p"bli!ation and inde/ing
>eg"latory Analysis
o ./e!"tive Qrder 6 agen!ies sho"ld engage in cost6beneit analysis of proposed r"le and
possible alternatives< signifi!ant reg"latory a!tions m"st provide a :8A
o ,imited 5"di!ial review of agen!ies !omplian!e w/:8A re7"irements
o %ome spe!ialiGed reg"latory analyses 6 3ational .nvironmental Poli!y A!t &environmental
impa!t statement), >eg"latory Dle/ibility A!t &statement of effe!t on small b"sinesses)
PART VI RULES AS PART O THE AGENC7 POLIC7MA5ING PROCESS
>"lema;ing ./emptions
o Good cause e9emptions
APA W55+&b)&+)&8)6e/empt from noti!e and !omment when it wo"ld be '"nne!essary,
impra!ti!able, or !ontrary to the p"bli! interest(
9nne!essary when r"le is ma;ing a minor te!hni!al !orre!tion when the p"bli!
is not interested
Impra!ti!able or !ontrary to p"bli! interest 6 when r"le is "rgently needed or
when the normal pro!ed"res wo"ld "ndermine the ob5e!tive of the stat"tory
s!heme the agen!y is trying to enfor!e
1F
APA W55+&d)&+) 6 for 'good !a"se( an agen!y may dispense w/normal re7"irement that
r"le may not be!ome effe!tive "ntil +F days after iss"an!e
Sovt has heavy b"rden in showing good !a"se when the r"le !reates !riminal
liability for previo"sly lawf"l !ond"!t
5irect inal rulema'ing 6 agen!y immediately adopts r"le b"t if anyone ob5e!ts to it
after p"bli!ation then the r"le will be withdrawn and "s"al noti!e and !omment
pro!ed"res will !ommen!e
-nterim inal rule 6 when agen!ies adopt a r"le in relian!e on the Aimpra!ti!able or
Ap"bli! interest prongs of the good !a"se e/emption 6 "s"ally re7"est !omments on
the r"le after it be!omes effe!tive
o "rocedural rules
APA W55+&b)&A) 6 r"les of agen!y organiGation, pro!ed"re, or pra!ti!e are e/empt
from noti!e and !omment re7"irements
./0 agen!y !an write it "p and say its effe!tive from now forth
891 where a P> isnt really a P> it has to go thro"gh at least noti!e and !omment
:hallenge0 arg"e it isnt even a P> at all so it falls o"tside that e/!eption
1he standard is in "ublic &iti(en!o"rt abandoned s"bstantive effe!t standard and
said the test is whether the agen!y r"le in 7"estion 'en!odes a s"bstantive val"e
5"dgment other than me!hani! or pro!essesPeffi!ien!y(
It seems to fo!"s on effi!ien!y
./ample0 instr"!tions from 22% on how to review medi!al !laims saying 'greatest
!han!e for fra"d is !ertain ;inds of !ardia! pro!ed"res so review those !losely(
It seems li;e its abo"t effi!ien!y &where to allo!ate reso"r!es)
8"t the rationale is that fra"d is more li;ely to o!!"r in those !ases &whi!h
so"nds more li;e a val"e 5"dgment than effi!ien!y)
2owever, its still probably a P> b! the fra"d part was already there &only thing
they added was how to monitor some !laims !ompared to others)
@@-at!h o"t for non-effi!ien!y based val"e 5"dgment that was never vetted &in
>4 or via stat"te)@@
o )9empted sub+ect matter &@@these e/emptions are narrowly !onstr"ed@@)
APA W55+&a)&*) 6 e/!l"des matters relating to p"bli! property, loans, grants, benefits or
!ontra!ts
APA W55+&a)&*) 6 e/!l"des r"les relating to agen!y management or personnel
APA W55+&a)&1) 6 e/!l"des r"les to the e/tent that there is involved a military or
foreign affairs f"n!tion of the 9%
o 3on6legislative rules
Legis*)+i6e Ru*es0 iss"ed by an agen!y p"rs"ant to an e/press or implied grant of
a"thority to iss"e r"les w/the for!e of law
N-n8Legis*)+i6e Ru*es0 do not have the for!e of law b/! not based on delegated
a"thority to iss"e s"!h r"les< e/empt from noti!e and !omment pro!ed"res and delayed
effe!tiveness
"olicy statements
o $ada6*una v. /it(patric'6 in order to 7"alify as a poli!y statement it
m"st be prospe!tive and m"st not establish a binding norm or be finally
determinative of the iss"es or rights to whi!h they are addressed 6
!riti!al fa!tor is the e/tent to whi!h the agen!y is free to e/er!ise
dis!retion to follow or not follow the anno"n!ed poli!y in an individ"al
!ase
11
o #ppalachian "o%er &o. v. )"#6 if the agen!y treats a do!"ment iss"ed
at 2X as !ontrolling in the field, then it is in effe!t binding and therefore
a legislative r"le
-nterpretive rules
o 1octor v. 0S 5ept o #griculture6 interpretive r"les are distin!t from
those de!isions that ma;e a reasonable b"t arbitrary r"le whi!h,
altho"gh !onsistent w/the "nderlying stat"te or reg"lation, still
represents an arbitrary !hoi!e among methods of implementation
Rule is legislative i w/o a legislative r"le by the agen!y, the legislative basis for the
agen!ys enfor!ement wo"ld be inade7"ate
Rule is non6legislative or interpretive %hen the agen!y has no legislative r"lema;ing
a"thority at all w/respe!t to the s"b5e!t matter of the r"le
>e7"ired >"lema;ing
o :o"rts are generally rel"!tant to interfere w/an agen!ys !hoi!e of lawma;ing pro!ed"res
&r"lema;ing vs? ad5"di!ation)
o 3*R! v. Wyman Gordon6 3,>8 !o"ld prom"lgate a new r"le d"ring ad5"di!ation when it was
only to apply +F days after the de!ision and was not applied to the parties to the !ase
Agen!y is free to adopt new !ase law prin!iples thro"gh ad5"di!ation b"t then it m"st
entertain any arg"ments p"t forth that have not been !onsidered before 6 if done
thro"gh r"lema;ing then all arg"ments !an be !onsidered at on!e d"ring noti!e and
!omment
o 3*R! v. !ell #erospace6:an p"r!hasing managers "nioniGeM-- 3,>8 ad5"di!ated the matter
and interpreted the law differently than it had in a prior order
%"preme :o"rt said there isnt really any re7"ired r"lema;ingsometimes a stat"te
says 'yo" will do C and yo" will do it thro"gh >4(
129%, Agen!y !an anno"n!e new prin!iples in an ad5"di!atory pro!eeding altho"gh +
sit"ations when there might be a different res"lt based on relian!e interests0
&1) -hen the adverse !onse7"en!es of retroa!tive ad5"di!ation wo"ld be
s"bstantial to parties who had relied on past agen!y de!isions
&*) -hen new liability is so"ght to be imposed retrospe!tively by ad5"di!ation
on individ"als for past a!tions whi!h were ta;en in good faith relian!e on
agen!y prono"n!ements
&+) -hen fines or damages are involved
1A=.A-AY0 there is 3Q re7"irement to "se >4 to establish poli!y, yo" !an "se
ad5"di!ation to establish poli!y one !ase at a time
>easoning0 Agen!y might not be ready to arti!"late broad r"le that !an
a!!ommodate everyone, so they might want to go !ase by !ase for awhile
./!eptions0 3o re7"ired >4, b"t there !an be AQD of ad5"di!ation 93,.%% stat"te
spe!ifi!ally says 'do C thro"gh >4(
%ometimes the order might not be made appli!able to a !ertain litigant b! there
relian!e wo"ld res"lt in harm
If A says theyre anno"n!ing new r"le b"t theyre not going to ma;e it apply to
a parti!"lar gro"pthis is ab"se of dis!retion, the order is appli!able to the
party litigating &from notes after !ase)
o If yo" dont have a reason to not ma;e it appli!able to them then it loo;s
li;e yo"re ma;ing a r"le for everybody else
-hen there is a !hange of poli!y and no reasons given why
o -ill also be set aside as ab"se of dis!retion b! there is a reversal of prior
pre!edent witho"t a reason
1*
@@@@In none of these !ases is >4 presentOO@@@@
Petitions
o APA and 4%APAs allow p"bli! to petition an agen!y for the iss"an!e, amendment, or repeal
of a r"le
o APA 6 does not re7"ire a statement of reasons e/pli!itly when denying a r"lema;ing petition
b"t another se!tion re7"ires the agen!y to provide a brief statement of the gro"nds for denial of
any appli!ation or petition filed with an agen!y
o WW1T v. /&&6 an agen!y may be for!ed by a reviewing !o"rt to instit"te r"lema;ing
pro!eedings if a signifi!ant fa!t"al predi!ate of a prior de!ision on the s"b5e!t has been
removed
:o"rt may not for!e a r"lema;ing pro!ed"re if denial was ade7"ately s"pported by
fa!ts and poli!y !on!ern and was not arbitrary or !apri!io"s
o $# v. )"#6 .PA had to provide reasons for denying petition, even tho"gh s"!h denial was
w/in their dis!retion
o 4 fa!tors to !onsider when determining whether the agen!ys delay was "nreasonable0
&1) ,ength of time sin!e agen!y !ame "nder a legal d"ty to a!t
&*) >easonableness of delay 5"dged in the !onte/t of the stat"te whi!h a"thoriGes the
agen!ys a!tion
&+) :onse7"en!es of agen!ys delay
&4) ./isten!e of any administrative error or pra!ti!al diffi!"lty in !arrying o"t the
deadlines in!l"ding need to prioritiGe limited reso"r!es
-aivers
o :ases in whi!h the appli!ant !an demonstrate that the r"le doesnt wor; appropriately for them
Appli!ant m"st plead with parti!"larity the fa!ts and !ir!"mstan!es
Agen!y responds with 'why and wherefore(
o W#-T Radio v. /&&6 denial of waiver m"st be a!!ompanied by a statement of reasons
>eason !annot be that w/o waiver a!tion wo"ld violate the r"le or reg"lation &have to
!onsider that its possible to grant a waiver)
o 4ay be a re7"irement that every signifi!ant r"le have a waiver provision
%ome agen!ies have never granted a waiver from !ertain r"les 6 "pheld by !o"rts
.CA40 may pres"me that they wo"ld entertain waivers
o L"di!ial >eview0 %een as dis!retionary a!tions, and as s"!h will be reviewed for AQD &same
thing as AE:) whi!h is reviewed "nder a hard loo; standard
Wait predated the hard loo; standard so it isnt in there b"t that is what yo" wo"ld "se
PART VII POLITICAL CONTROL O AGENCIES
Delegating #egislative Powers
o %1.P 10 identify any ambig"ity
-hen two or more reasonable interpretation, !hoose one w/o !onstit"tional iss"e
o %1.P *0 define what the intelligible prin!iple is
,oo; to legislative history or another ena!tment
o Qnly * !ases where no IP fo"nd0
"anama Reiningno standards g"iding Presidents de!ision over whether, and when,
to invo;e his powers
Schecter "oultry'!odes of fair !ompetition(, ins"ffi!ient standards g"iding
Presidents dis!retion whether to approve a parti!"lar !ode
1+
Delegating d!udicator8 Powers
o Do"r fa!tors to determine serio"sness of en!roa!hment "pon Art + :o"rts &&/T& v. Schor)0
&1) ./tent to whi!h the essential attrib"tes of 5"di!ial power are reserved to Art + !o"rts
&*) ./tent to whi!h non-Arti!le + for"m e/er!ises the range of 5"risdi!tion and powers
normally vested only in Arti!le + !o"rts
&+) Qrigins and importan!e of the right to be ad5"di!ated
&4) :on!erns that drove :ongress to depart from the re7"irements of Art + in !reating
the non-Art + !ts
o Schorability to ad5"di!ate !o"nter!laims arising from the same transa!tion Q=
3on-delegation Do!trine
o :ongresss power to delegate its legislative a"thority is limited &need &ntelligible Princi5le)
%eparation of powers arg"ment
:he!;s and balan!es arg"ment
o :"rrently 6 %:t respe!ts that do!trine b"t has "pheld every delegation bro"ght to its attention
o #malgamated $eat &utters v. &onnally6 validity of delegation is strengthened by being
s"b5e!ted to 5"di!ial review and there were standards to eval"ate whether :ongresss intentions
were being !arried o"t
o -ndustrial 0nion v. #merican "etroleum -nstitute6 broad delegations of power may be
permissible if the delegate has e/pertise of the matters to be reg"lated 6 depends whether
s"ffi!ient standards of implementation of the delegation are fo"nd in the legislative history or
whether the delegation was 5"stifiable by the ne!essity of the sit"ation
3on-delegation do!trine ens"res that that poli!y !hoi!es are made by those who are
politi!ally responsible, that power is delegated w/g"idelines, and that !o"rts have
standards by whi!h to review the delegation and "se of the power
o Whitman v. #merican Truc'ing #ss4n6 :AA gave some g"idan!e for the implementation of the
power delegated to the .PA
>ationale for politi!al review
o ./e!"tive and legislative review of agen!y r"les provides opport"nity for !he!;s on agen!y
de!isions
o ,egislative review is more effe!tive than 5"di!ial review b/! agen!y pro!ess was intended to
repla!e the legislative pro!ess
o Agen!ies sho"ld be a!!o"ntable to those a"thoriGing their a!tions
,egislative :ontrols
o *egislative 2etome!hanism allowing legislators to invalidate or s"spend an agen!ys a!tion
by less that a stat"te
-3S v. &hadha6 legislative vetoes are "n!onstit"tional be!a"se s"!h a veto is a
legislative a!tion re7"iring bi!ameralism and presentment &Presidential approval)
:on!"rren!e 6 sho"ld have been de!ided on the separation of powers iss"e 6
veto was a 5"di!ial a!tion
o Alternatives to the legislative veto
:ongressional >eview A!t 6 re7"ires all r"les of general appli!ability adopted by
nearly all agen!ies to be s"bmitted to :ongress and the Seneral A!!o"nting Qffi!e
before ta;ing effe!t
4a5or r"les !annot ta;e effe!t for at least KF days after s"bmission to :ongress
:ongress !an veto non-ma5or and ma5or r"les by a 5oint resol"tion of
disapproval
o Qther legislative !ontrol0 Qversight !ommittees, Investigations and hearings, D"nding
meas"res, Dire!t !onta!ts b/t members of :ongress and agen!ies on behalf of !onstit"ents
./e!"tive :ontrols
14
o 55ointment Power
!uc'ley v. 2aleo6 :ongress may delegate the appointment of in-erior o--icers to the
President, :o"rts, or to 2eads of Department
Princi5al o--icers m"st be !hosen by the President on advi!e and !onsent of the %enate
$orrison v. :lson6 "pheld stat"te allowing a spe!ial !o"rt to appoint independent
!o"nsel to investigate possible federal violations by high ran;ing e/e!"tive offi!ials
be!a"se she was !learly an inferior offi!er
&1) %"b5e!t to removal by higher e/e!"tive bran!h offi!er
&*) d"ties limited to investigation of !ertain federal !rimes
&+) limited 5"risdi!tion
&4) temporary position
Appointments sho"ld not be made by in!ongr"o"s bran!hes &5"di!ial bran!h
sho"ld not appoint an e/e!"tive offi!ial)
)dmond v. 0S6 inferior offi!ers are those whose wor; is dire!ted and s"pervised at
some level by others who were appointed by presidential nomination w/the advi!e and
!onsent of the %enate &m"st have a s"perior)
$orrison appointment indi!ated the spe!ial prose!"tor was to be independent
of the s"pervision or !ontrol of any offi!er in the Department 6 has this been
overr"led by )dmondM
4ere employees of agen!ies are not s"b5e!t to the appointments !la"se &i?e? A,Ls)
,egislators !an set 7"alifi!ations that e/e!"tive appointees m"st meet
o A11-in+men+ ANAL7SIS:
%1.P 10 employee or offi!erMM &is Appointments :la"se of Art? *, W* even
impli!atedM)
'%ignifi!ant a"thority( &some ability to render a final de!ision)
%1.P *0 inferior offi!er or s"perior offi!erMM
-hether the Qffi!er answers/has a s"perior??? whom is a Prin!ipal offi!erM
o If yes inferior
o If no !ontin"e with analysisP
$orrison Da!tors
@@:onse7"en!eR n"llifi!ation of agen!y a!tions and appointments
o Removal Power and the independent agen!y
1umphrey4s )9ecutor v. 0S6 stat"te !an !onstit"tionally limit the Presidents power to
remove at will for offi!ials not a!ting in a p"rely e/e!"tive f"n!tion
8eing able to be removed at will destroys s"!h offi!ials independen!e from the
e/e!"tive bran!h
&nde5endent gencies6 !reated to lessen politi!al infl"en!e of the agen!ies de!isions
2eads !annot be removed by the President e/!ept for good !a"se, "s"ally have
stat"tory re7"irements for staggered terms and party balan!e
$orrison v. :lson6 determination of whether it is !onstit"tional to limit Presidents
removal power to only !ases of good !a"se or whether it impermissibly interferes with
the e/e!"tives f"n!tion is not entirely dependent on whether the offi!ial f"n!tions in a
wholly e/e!"tive way
Tes+: the proper in7"iry is whether removal restrictions 9im5ede the
President:s abilit8 to 5er-orm his constitutional dut8;
%eparation of powers 7"estion !an be loo;ed at as whether there is any attempt
by :ongress to ta;e another bran!hs power
15
%till loo; at whether the limitation will !a"se a disr"ption of the ./e!"tives
f"n!tion
:ongress !annot ;eep for itself the power to remove if this wo"ld "s"rp the power of
another bran!h
o ./e!"tive oversight
Qffi!e of Information and >eg"latory Affairs &QI>A) 6 !ond"!t oversight of signifi!ant
r"lema;ing for the -hite 2o"se
.Q 1*4JV re7"ired agen!ies to s"bmit anti!ipated r"lema;ing initiatives to
QI>A ea!h year for approval
.Q 1*VKK 6 agen!y m"st prepare a >eg"latory Plan on signifi!ant reg"latory
a!tions it e/pe!ts to propose or finaliGe, QI>A will notify President if it
believes the plan is in!onsistent w/Presidents priorities
If a matter has been entr"sted to an agen!y offi!ial, the President !annot lawf"lly
re7"ire the offi!ial to a!t at varian!e w/the stat"tory mandate
-ndependent #gencies are e/empt from QI>A review
*ine -tem 2eto is "n!onstit"tional &&linton v. 3>)
PART VIII THE SCOPE O JUDICIAL REVIE9 :"';&<
%!ope of >eview of Agen!y Dindings of 8asi! Da!t
o Possible s!opes of review 6 de novo, independent 5"dgment on the eviden!e, !learly erroneo"s,
s"bstantial eviden!e &most prominent standard in fed admin law), s!intilla test
o Su0s+)n+i)* E6i(ence
:o"rt reviews entire re!ord for s"bstantial eviden!e in ormal ad+udication and ormal
rulema'ing &APA .//0, .//1)
%ome stat"tes apply %. review even if As a!tion is not formal >4 or ADL
In most other sit"ations, fa!ts are reviewed "nder arbitrary and capricious stnd
0niversal &amera v. 3*R!6 reviewing !o"rts m"st ta;e into a!!o"nt !ontradi!tory
eviden!e and base de!ision on whether there was %. in the re!ord to s"pport the
agen!ys de!ision &no %. definition b"t did give g"idan!e)
>eview re!ord as a whole, not 5"st the eviden!e that the 8oard gave weight to
Doesnt fail if reasonable person wo"ld have !ome to a different res"lt as long
as a reasonable person !o"ld !ome to that res"lt &when reviewing whole re!ord)
'%. is more than a mere scintilla ? It means s"!h relevant eviden!e as a
reasonable mind might a!!ept as ade7"ate to s"pport a !on!l"sion( &pg? 5FK
top)dire!ted verdi!t stnd
If the agen!y head reverses an A,Ls !redibility findings, this determination is treated
by the reviewing !o"rt as a min"s fa!tor "nder the s"bstantial eviden!e test
Substantial *vidence vs? <ard #oo"./0 yo" find 5"stifi!ation b"t yo" dont read
whole re!ord, on later pages the 5"stifi!ation is dis!redited b! the e/pert s"!;s
-ith 1* we may have stat"tory fa!tors &reviewing to see if it is thoro"gh, did
they !onsider all fa!tors)
S)- thoro"gh probing that ma;es someone so familiar with the re!ord that they
!an say there is 5"st eno"gh in the re!ord to &by analogy) avoid a motion for
dire!ted verdi!t
%!ope of >eview on Iss"es of ,egal Interpretation
o + levels of deferen!e 6 s"bstit"tion of 5"dgment based on independent 5"dgment &wea;
deferen!e), s"bstit"tion of 5"dgment w/o deferen!e, reasonableness or strong deferen!e
1K
o &T State $edical Society v. &T !oard o "odiatry6 interpretations of law sho"ld be left to
!o"rts, b"t will give deferen!e to a time-tested agen!y interpretation of a stat"te
Dominant view in state !o"rts 6 wea; deferen!e
o &hevron v. 3R5&6 reviewing !o"rt may not s"bstit"te its own !onstr"!tion of a stat"tory
provision for a reasonable interpretation made by an agen!y administrator
2as :ongress spo;en dire!tly on the iss"eM
:an loo; at the spe!ifi! stat"te as well as inferen!es drawn from other stat"tes
in the area, and the fit or str"!t"re of the entire stat"tory s!heme
If not, whether the agen!ys answer was based on a permissible !onstr"!tion of the
stat"teM
Impli!it delegation to allow agen!y to fill in gaps of stat"tes they are s"pposed
to administer
./ample of strong deferen!e approa!h to 5"di!ial review
@@Qnly applies to stat"tes that the agen!y administersOO
o &hristensen v. 1arris &ounty6 interpretations in opinion letters do not !arry the for!e of law
and do not warrant &hevron type deferen!e
o 0S v. $ead6 agen!y a!tions, s"!h as tariff !lassifi!ations, were not intended by :ongress to
!arry the for!e of law and therefore &hevron does not apply< instead the S'idmore deferen!e of
granting the level of respe!t to the e/tent that the do!"ment has the power to pers"ade
Altho"gh 5"st b/! a statement does not !arry the for!e of law, it doesnt mandate the
e/!l"sion of &hevron deferen!e
o A !o"rts prior 5"di!ial interpretation of a stat"te wo"ld tr"mp an agen!ys !onstr"!tion that
wo"ld otherwise have &hevron deferen!e
L"di!ial >eview of Dis!retionary Determinations in Ad5"di!ation
o Arbitrary and !apri!io"s test to review dis!retionary elements of administrative r"les, informal
and formal ad5"di!ations, fa!t-finding in informal ad5"di!ations .1=0(2)()
A=CR whether de!ision was made on consideration o the relevant acts and whether
there was !lear error of 5"dgment in the !hoi!e made
1o ma;e this finding, !t m"st ta;e hard loo"
o Salameda v. -3S6 review of deportation s"spension re7"est that was denied 6 agen!y sho"ld
have !onsidered other information when determining Ae/treme hardship
o &iti(ens to "reserve :verton "ar'6 first de!ide whether administrator a!ted within s!ope of
his a"thority< then de!ide whether the a!t"al !hoi!e made was not arbitrary, !apri!io"s, or an
ab"se of dis!retion
,oo; to what fa!tors the relevant stat"te re7"ires the agen!y to !onsider when ma;ing
a dis!retionary de!ision
o !ut( v. Glover *ivestoc'6 agen!ys !hoi!e of san!tion sho"ld not be overt"rned "nless it is
"nwarranted in law or w/o 5"stifi!ation in fa!t
o Qther ab"ses of dis!retion0 arbitrary poli!y de!ision "nderlying dis!retion, illogi!al reasoning,
ins"ffi!ient fa!t"al basis, in!onsistent w/prior agen!y poli!ies, fail"re to adopt an alternative
sol"tion
o 'hener8 Rule 6 !o"rt !annot affirm an agen!y de!ision on some gro"nd other than the one
relied on by the agen!y in the de!ision "nder review
o -hen agen!y is departing from pre!edent, there m"st be a reasonable e/planation for that
depart"re
L"di!ial >eview of Dis!retionary De!isions in >"lema;ing
o #rbitrary F capricious test to review poli!y !hoi!es in r"lema;ing
o $otor 2ehicle $anuacturers v. State /arm6 res!ission or !hanging of a r"le was arbitrary and
!apri!io"s b/! the agen!y did not provide a reasoned e/planation of the res!ission
1T
>eviewing !o"rt !annot set aside an agen!y r"le that is rationally based on
!onsideration of the relevant fa!tors and w/in the s!ope of the delegated a"thority of
the agen!y
>es!ission or !hanging of a r"le is s"b5e!t to AE: standard of review
o !orden v. &ommissioner o "ublic 1ealth6 strong deferen!e approa!h< stat"te did not re7"ire
any spe!ifi! tests to determine safety, so la!; of those tests were not fatal
o <ard #oo" Review>:o"rt loo;s to whether the A !aref"lly deliberated abo"t the iss"es raised
by their de!ision
As m"st offer detailed e/planations for their a!tions, in!l"ding all relevant fa!tors
:o"rt !an reverse if agen!y failed to !onsider a pla"sible alternative and e/plain
why it re5e!ted those alternatives
Agen!y m"st e/plain any !hange from pre!edent
Applies to discretionary matters &i?e?- waiver) b"t the reality is that there is a lot of
dis!retion where there is not a X of ,aw or a X of Da!t
1here !an be moments when agen!y is applying dis!retion even in an ad5"di!atory
setting &parti!"larly formal)
Dont "nderstand law&hevron
Dont "nderstand fa!tssubstantial evidence
Q> is there some misstep in applying on!e we ;now law and fa!ts
o ./0 there is a"thority to stop deportation where 92 wo"ld res"lt
Imagine we dont ;now what 92 means &does it mean to the individ"al or the
!omm"nityM 2ow do we meas"re itM .t! )
1hese wo"ld be Gs o *a%
Disp"tes over what was and wasnt !omm"nity servi!e? Agen!y said there was none?
1hese wo"ld be Gs o /act
'92 in!l"ded Pand is meas"red byP(--so we already ;now this and they s;ip it
1his is !onsidered dis!retion &and is reviewed "nder AE:)
o 1A=.A-AY0 sometimes its !lear that it is dis!retionary and other times it isnt b"t yo" !an
always as; yo"rself 'is there a disp"te over the meaning of words( 'does it seem li;e there is a
!redible !laim &on!e law and fa!ts are applied) thatP(
PART I> THE AVAILA!ILIT7 O JUDICIAL REVIE9
L"di!ial L"risdi!tion
o If a stat"te is e/pli!it as to the review pro!ed"res, then that is the e/!l"sive pro!ed"re to be
followed for that stat"te
o If no e/pli!it stat"te, then ordinary r"les of 5"risdi!tion apply
>eviewability
o %tat"tory Pre!l"sion of L"di!ial >eview
>eb"ttable pres"mption that administrative a!tions are s"b5e!t to 5"di!ial review
!o%en v. $- #cademy o /amily "hysicians6 when the stat"te only e/pressly pre!l"ded
5"di!ial review of the amo"nt determination, there was still room for 5"di!ial review of
the method of the determination
Dail"re to provide for 5"di!ial review is not e7"ivalent to !ongressional intent to
pre!l"de s"!h review
$c3ary v. 1aitian Reugee &enter6 stat"te whi!h pre!l"ded review of a determination
respe!ting an appli!ant, did not pre!l"de review of !hallenges to "nlawf"l pra!ti!es in
pro!essing appli!ations
1V
>a'us v. 0S6 "pheld reg"lation whi!h stated that !hallenges to it !o"ld only be bro"ght
w/in KF days after it was prom"lgated
o A!tions A:ommitted to Agen!y Dis!retion
A Types of Agen!y Dis!retion
Dis!retion that is reviewable "nder .1=0(2)() 6 arbitrary and !apri!io"s, ab"se
of dis!retion
Dis!retion that is !ommitted to agen!y dis!retion by law and is not reviewable
at all
1ec'ler v. &haney6 when the stat"te whi!h the de!isions a"thority is premised on
provides no meaningf"l standard by whi!h to 5"dge the de!ision, there !an be no
5"di!ial review
Pres"mption that agen!y ref"sals to ta;e enfor!ement steps are generally not
5"di!ially reviewable
Tes+: if a sta"te is drawn so that a !o"rt wo"ld have no meaningf"l standard
against whi!h to 5"dge the As e/er!ise of dis!retion, review is pre!l"ded
Pres"mption of "nreviewability of dis!retionary de!isions on whether or not to
prose!"te !an be over!ome by stat"tory standards appropriate for 5"di!ial review
%:t 6 agen!ys ref"sal to engage in r"lema;ing is reviewable
o Ina!tion
.1=0(1) 6 !o"rt !an !ompel agen!y a!tion that was "nlawf"lly withheld or
"nreasonably delayed
3orton v. Southern 0tah Wilderness #lliance6 federal !o"rts !an only !ompel agen!y
a!tions that are dis!rete and legally re7"ired< !an dire!t an agen!y to ta;e a!tion b"t
!annot dire!t how it shall a!t
A general !ategori!al mandate does not allow a !o"rt to de!ide whether a
parti!"lar non-a!tion by the agen!y fails "nder that mandate
If P had filed a r"lema;ing petition to try to prompt agen!y to ta;e a!tion and they
ref"sed, then it wo"ld be reviewable "nder .1=0(1)
%tanding
o In5"ry in Da!t and Zone of Interests &Statutory Standing)
#ss4n o 5ata "rocessing Service :rgs. v. &#$"6 + step in7"iry for determining
standing
&1) -hether P alleges that the !hallenged a!tion has !a"sed him in5"ry in fa!t,
e!onomi! or otherwise
&*) -hether the interest so"ght to be prote!ted by the !omplainant is arg"ably
w/in the Gone of interests to be prote!ted or reg"lated by the stat"te or
!onstit"tional g"arantee in 7"estion
o Do!"s sho"ld be on the spe!ifi! provision rather than the entire stat"te
on whom it was designed to prote!t
&+) -hether 5"di!ial review of this parti!"lar a!tion has been pre!l"ded
#ir &ouriers v. #merican "ostal Wor'ers6 sin!e the stat"te granting a monopoly to
9%P% for !arrying mail was not passed to prote!t the postal wor;ers, they were not
w/in the Gone of interests that the stat"te intended to prote!t
Zone of interest prong is prudential 6 !ennett v. Spear, :ongress provided that "nder
.%A any !itiGen !o"ld s"e for !ertain violations whi!h dispensed w/the Gone of
interests re7"irement
o :a"sal :onne!tion and P"bli! A!tions &&onstitutional Standing)
*u+an v. 5eenders o Wildlie6 + elements of !onstit"tional minim"m of standing
1J
&1) In5"ry in fa!t whi!h is !on!rete and parti!"lariGed and a!t"al or imminent
and not hypotheti!al
&*) 4"st be a !a"sal !onne!tion b/t the in5"ry and the !ond"!t !omplained of
&+) 4"st be li;ely &vs? spe!"lative) that the in5"ry will be redressed by a
favorable de!ision
#ssociations have standing when0 &1) one or more of their members wo"ld have
standing to s"e< &*) the interests the assn see;s to prote!t are germane to the
organiGations p"rposes< &+) neither the !laim nor the relief re7"ested re7"ires the
parti!ipation of individ"al members in the laws"it
Sierra &lub v. $orton6 histori! !ommitment to !onservation is not s"ffi!ient to
establish standing
4"st have !on!rete in5"ry
P who !an establish in5"ry in fa!t !an have s"ffi!ient standing to !hallenge an agen!ys
fail"re to prepare as .I% even tho"gh it wo"ld not re7"ire the agen!y to !ease the
pro5e!t regardless of environmental damage
2ermont #gency o 3atural Resources v. 0S6 an interest "nrelated to the in5"ry in fa!t
is ins"ffi!ient to give standing 6 interest that is only a byprod"!t &i?e? a bo"nty for
bringing s"it) itself !annot give rise to a !ogniGable in5"ry in fa!t
/)& v. #'ins6 even if Ps in5"ry is shared by millions, still s"ffi!ient to provide
standing
$# v. )"#6 a %tate !an have standing to s"e an agen!y by meeting the + part test of
*u+an
1iming
o in)*i+y
Final (rder Rule- litigant m"st !omplete the entire admin pro!ess before a !o"rt will
review the agen!ys de!isions
/T& v. Standard :il &o. o &#6 D1: !omplaint was not a final agen!y a!tion and was
therefore not reviewable 6 !omplaint had no effe!t on daily !ond"!t< no legal effe!t
other than that %o!al m"st litigate
!ennett v. Spear-* !onditions m"st be satisfied for As a!tion to be final
&1) the a!tion m"st mar; the !ons"mmation of the As de!ision ma;ing pro!ess
o it may not be tentative or interlo!"tory
&*) the a!tion m"st be one by whi!h rights or obligations are determined or
from whi!h legal !onse7"en!es flow
o Ri1eness &m"st be harmed, not threatened)
#bbott *abs v. Gardner6 pre-enfor!ement 5"di!ial review of a reg"lation is permissible
on !onsideration of * fa!tors0 &1) fitness of the iss"es for 5"di!ial de!ision and &*) the
hardship to the parties of withholding !o"rt !onsideration
-here the legal iss"e presented is fit for 5"di!ial resol"tion, and where a
reg"lation re7"ires an immediate and signifi!ant !hange in Ps !ond"!t of their
affairs w/serio"s penalties atta!hed to non-!omplian!e, a!!ess to the !o"rts
"nder the APA and DLA m"st be permitted, absent a stat"tory bar or some other
"n"s"al !ir!"mstan!es
8alan!e is generally str"!; in favor of immediate reviewability of legislative
r"les
-nterpretive rules and policy statements may also be ripe for review, parti!"larly when
it is a r"ling of a 8oard or agen!y head
4ay also be ripe when they spea; only abo"t what a stat"te means 6 !o"rt has
all the information it will ever have abo"t !ongressional intent at that time
*F
People sho"ld not have to wait for ad5"di!ation if it is possible to go forward w/5"di!ial
review now, espe!ially when there wo"ld be s"bstantial !osts involved in !omplying
w/the r"le and having to wait for ad5"di!ation
o E?2)us+i-n of >emedies
$c&arthy v. $adigan6 if the administrative pro!ed"res !o"ld pose a trap for the
"n;nowing and the P is see;ing damages for whi!h the agen!y has no ability to grant, P
does not have to e/ha"st administrative remedies
Gener)* Ru*e 6 parties m"st e/ha"st pres!ribed administrative remedies before
seeing relief from federal !o"rts
!)*)ncing Tes+ 6 balan!ing the interest of the individ"al in retaining prompt
a!!ess to a federal 5"di!ial for"m against !o"ntervailing instit"tional interests
favoring e/ha"stion
+ !ir!"mstan!es when the individ"als interests weigh against e/ha"stion
o &1) -hen e/ha"stion wo"ld res"lt in "nd"e pre5"di!e to s"bse7"ent
assertion of a !o"rt a!tion
o &*) -hen administrative remedy wo"ld be inade7"ate b/! of do"bt the
agen!y !o"ld grant effe!tive relief
o &+) -hen administrative remedy wo"ld be inade7"ate b/! agen!y is
biased or has predetermined the iss"e
38 &ivil Service #ss4n v. State6 when a 7"estion only re7"ires interpreting the law and
legislative history and there are no fa!ts in disp"te, no re7"irement to e/ha"st
"ortela6Gon(ale( v. Sec. o the 3avy6 safe harbor "nder f"tility e/!eption re7"ires
!laimant to show that their !laim will be denied on appeal, not merely that they do"bt
an appeal will res"lt in a different de!ision
./ha"stion "nder APA - .1=2 whi!h des!ribes final r"les, a!ts as an e/!eption to the
e/ha"stion do!trine< final r"les are 5"di!ially reviewable
'onstitutional issues &3ote 5, pg? KKT)6 p"rely fa!ial !onstit"tional !hallenges do not
have to e/ha"st remedies &on the stat"tes fa!e, not as its applied to a P)if A doesnt
have 5"risdi!tion it doesnt ma;e sense for them to have first pass
4ost times, its hard to ma;e a pro!ed"ral DP !laim witho"t developing a
fa!t"al re!ord, so it wo"ld start in A &!lear on its fa!e "s"ally involves fear or
national !risis, i?e? lo!;"p all the gays)? 2owever, sometimes there are things
so bad that there !o"ld be a fa!ial !hallenge &e/!eptions)
./!eptions0 e9haustion may sometimes be required or constitutional issues
o %"b5e!t matter 5"risdi!tion &where that applies it is often the !ase that
the agen!y m"st have pass at the fa!ial !hallenge before it !an even get
to 5"di!iary) least !ommon
o -here there are dispositive non-!onstit"tional iss"es in the !ase whi!h
if resolved wont even get to the !onstit"tional part &dont want to
address !onstit"tional iss"es if dont have to)
o -hen atta!; is on stat"te as applied to P &rather than on the fa!e atta!;)
o If A is empowered "nder state law to r"le on !onst iss"es &in!l"ding
validity of its own stat"te)may be re7"ired even !ase of fa!ial atta!;
*1

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