Administrative Law - Yale - Mashaw - Fall 2004 - Free Law School Outlines

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OUTLINE DETAILS:
School: Yale
Course: Administrative Law
Year: Fall, 2004
Professor: J. Mashaw
Text: Administrative Law: The American Public Law System (West Group, 5th Ed. 2003)
Text Authors: J. Mashaw, R. Merrill, & P. Shane

Administrative Law – Fall 2004

Jurisdiction
o under enabling act, 1331 (federal question), or 1983
o most statutes provide for JR in court of appeals
o otherwise, review sought in district court

Is the agency’s authority a violation of the non-delegation doctrine? (Congress can’t delegate excessive legislative discretion to legislative branch)
o VERY LENIENT standard (See Amalgamated Meat Cutters v. Connally – upheld act granted president broad power to stabilize wages)
o Need intelligible standard (See Whitman v. ATA)
o Agency cannot cure problem by narrowly interpreting statute (See Whitman)
o Compare Sun Ray Drive-In (Oregon) – if no standards in statute, agency should make some
o Can delegate adjudicatory power as long as it doesn’t invade article III (See CFTC v. Schor)
o Implicates larger separation of power concerns

Does law have irrebuttable presumption?
o Invalid because contradicts due process (Murray – lose food stamps if someone is dependent of someone else)
o probably okay because doctrine disappeared

Legislative Control
o No de minimis exception (Public Citizen v. Young – no exception to Delaney Clause for dyes)
o Legislative veto unconstitutional (INS v. Chadha)
o Test – is it legislative in character? Yes  need bicameralism and presentment
 formal – Congress acted
 functional – effect of changing powers, rights privileges and immunities
o Congressional Review Act – if both houses disapprove of agency rule and president doesn’t veto, rule nullified – BUT only used once

Appointment of Officials
o If “Officer of the United States” must be appointed pursuant to the appointment clause (Buckley v. Valeo)
o appointed by president and confirmed by Senate
o officer means exercises authority pursuant to laws (Buckley)
o if employee (inferior officer) may be appointed by president department head, or court NOT Congress
o Congress can appoint officials who aid legislative process
o members of Congress cannot serve as administrative officials (Art. 3 § 6)

Removal of Officials
o Typically removal at will by President
o Congress can’t retain removal power over official with executive function (Bowsher v. Synar)
o Statute can restrict removal if not purely executive (Humphrey’s executor)
o but can’t restrict removal of purely executive officer (Myers – postmaster)
o standard is whether restriction “impedes the president’s ability to perform his constitutional duty” (Morrison v. Olson)
 Morrison (prosecutor) seems pretty executive, so unclear what is

Choice of Procedure
o If directed at particular parties, must use rule (§ 551; Londoner v. Denver)
o adjudication may be formal or informal (See § 555(e))
o Otherwise, agency may choose rulemaking or adjudication (See SEC v. Chenery – used adjudication to develop policy)
o need notice and comment in manual
o What process required in adjudication?
o need entitlement to get due process
 positive law (Roth) or assurances (Perry)
o SC says statute creates entitlement and court defines process (Loudermill)
 Rehnquist dissent – take the “bitter with the sweet”
o Use Mathews v. Eldridge balancing test
 private interest
 risk of error
 government’s interest (public interest and admin burden)
o employment cases get pre-termination hearing

Rulemaking
o Formal Rulemaking (§§556-57)
o only when required in agency enabling act or other statute
o conducted like a trial
o word “hearing” in statute doesn’t mean formal (Florida E. Coast Railway)
o Informal Rulemaking (§ 553)
o notice
 rule can’t exceed notice (Wagner Elec. Corp. v. Volpe) unless consistent with original scheme (South Terminal v. EPA)
o comment
 must provide notice of any data upon which the agency relies (U.S. v. Nova Scotia)
 word “hearing” in statute doesn’t mean formal rulemaking/oral presentation (Florida E. Coast Railway)
o no ex parte contacts
 no explicit ban in APA – basically need to disclose
 Rule (HBO v. FCC)
o must disclose to public when they form basis for action
o prohibited between formal notice of rulemaking and decision-making
 motivations irrelevant, just need reason (Sierra Club v. Costle)
 just have to show considered info. not how long or hard (Morgan IV)
 decision maker disqualified if has “unalterably closed mind” (See Assoc. of Nat’l Advertisers v. FTC)
o publication in Federal Register
o under Vermont Yankee, courts may not require agencies to add to procedures not specified in APA or statute
o exceptions
 military or foreign affairs
 “public property, loans, grants, benefits or contracts”
 interpretative rules
o notice and comment required if (1) non self-executing; (2) published in CFR; (3) invoked legislative authority; (4) amends legislative rule (Am. Mining Congress)
o Nova Scotia Food Prods (added whitefish to regulations – needed notice and comment)
o Hoctor (determination that strong fences had to be 8 feet)
o compare Shalala – didn’t need to use accounting protocol
 agency finds “good cause”
o must invoke at issuance
o Negotiated Rulemaking – formal negotiations with interested parties

Is judicial review available? (JR is mechanism for enforcing procedural and substantive constraints on agency action
o Does statute grant right to review? – APA § 704 says then JR available
o Overton Park – presumption that limited judicial review is available
o just need “law to apply”
o agency must provide record (“hard look” at record)
o review is basically procedural
 compare – Israel – substantive review
o exceptions
o statutory preclusion
 explicit
 implicit – separation of powers grounds
• functional considerations (See Block – no actions for consumers since Congress authorized actions by dairy producers)
 doesn’t apply if challenging enabling act (Johnson v. Robinson)
o “committed to agency discretion by law” (§ 701)
 no law to apply
 statute says agency has final authority (Webster v. Doe)
• but still get review of constitutional questions
 prosecutorial discretion (Heckler v. Chaney – presumptively not reviewable)
• doesn’t apply to rulemaking (See American Horse Protection Assoc.)
o but failure to make rule is not same thing as denial (See Norton v. S. Utah Wilderness Society)
o beneficiary suits
o explicit cause of action (e.g., citizen suit provision in environmental statute)
 means person falls within zone of interests but still need to satisfy standing
o implicit
 Test (Cort. v. Ash)
• statute creates federal right in favor of P
• indication of legislative intent to create or deny remedy
• Is remedy consistent with underlying purposes of statute?
• Is COA specifically relegated to state law
 presumption against implied right of action (Alexander v. Sandoval) so need indication in statute

Preliminary Objections to Review
o Is action final (as required by APA § 704)?
o 1) agency completed process AND 2) process had legal effect
 release of information not final action because no coercive effect (Flue-Cured Tobacco)
o inaction can be final
 need to show 1) immediate harm and 2) end of process (D.C. Circuit DDT Cases)
o doesn’t require change in legal position (AMP v. Gardner – review on whether drug or device)
o Is the action ripe?
o issues are fit for judicial review AND party seeking review would suffer hardship if review delayed until enforcement (Abbott Labs)
 Compare Toilet Goods – enforcement would clarify scope of regulation and will not cause plaintiffs to risk serious penalties
 Ohio Forestry v. Sierra Club – regulations that made logging more likely but did not authorize meant issue not ripe
o Has P exhausted administrative remedies? (§ 704; Myers v. Bethlehem Shipbuilding)
o sometimes not enforced for fairness concerns (See McKart v. United States)
o not required to exhaust when question is constitutionality of process (Mathews v. Eldridge)
o only need to exhaust as far as statute says (Darby v. Cisneros)
o Is action moot?
o not moot unless behavior is not reasonably likely to occur (Laidlaw)
 voluntary cessation is not enough
o exception if claim is “capable of repetition yet evading review” (Doe v. Sullivan)

Does the party have standing?
o party a regulated party
o agency violated person’s legal rights (APA § 702 provides standing to “a person suffering legal wrong”)
o Test (See Lujan)
o Injury-in fact
 must be particularized (See Sierra Club; Lujan)
 aesthetic, conservational and recreational count (Sierra Club)
 injury need not be tied to legal claim (See Duke Power)
 relevant injury is to P (See Laidlaw – no injury to environment)
 unlikely to allow taxpayer challenges (See Richardson) except under Establishment Clause (See Flast)
 NOT generalized grievance
o Causation - injury “fairly traceable” to challenged conduct
o Redressability – remedy will redress injury
 no standing to seek injunction if violation in past (Steel Co.) or not likely to be subject to policy in future (Lyons)
o Interest “arguably within the zone of interests” regulated or protected by statute (Nat. Credit Union)
 intent of congress irrelevant (Nat. Credit Union)
 Citizen suit provisions override prudential limits but still need to meet constitutional reqs (See Lujan)
o Can’t assert 3rd party rights
o Associational standing (Hunt test)
o members have standing to sue
o interests are within association’s purpose
o litigation will not be adversely affected by lack of individual Ps

Inconsistent - ? is speculativeness
o Enough in SCRAP to have standing to sue ICC for increasing rates to carry recyclables
o Rates go up on recyclable materials  people use non-recyclables  materials discarded  students offended
o Simm v. EKWRO: too speculative that hospitals will provide less care when IRS regulation changed from provide all charity you can afford to keep emergency rooms open
o increased risk of unfavorable outcome is not enough

What standard of review?
o agency action
o formal adjudication or rulemaking – substantial evidence
 substantial evidence in light of ENTIRE record (Univ. Camera Corp. v. NLRB)
 court should uphold if reasonable mind would accept evidence as adequate to support a conclusion
 deference to ALJ if decision based on witness credibility
o informal rulemaking – arbitrary and capricious
 take a “hard look” at whole record (See Overton Park)
 need evidence (See Automotive Parts v. Boyd)
 rejected post hoc rationalizations (Nat’l Tire Dealers & Retreaders)
 procedural standard b/c consider all evidence
 JM – not sure standard is different than substantial evidence
 same standard for rescission (See State Farm)
o new issues or procedural inadequacies in agency action – de novo
o statutory construction (See Chevron)
o Is statute clear and unambiguous?  follow statute
 directly spoken
 statutory interpretation, including structure of statute and legislative history (See FDA v. Brown & Williamson)
o If not, defer to agency if reasonable
o only get Chevron deference when Congress intended to delegate rulemaking authority – power to issue rules with force of law(See Mead)
 so not in less formal cases such as opinion letters
 otherwise get Skidmore deference where expertise justifies
o relies on capacity and competence
o Chevron applies to interpretations not subject to notice and comment (See Barnhart v. Walton)
o BUT still construe statute to avoid constitutional difficulties (See Rust v. Sullivan)
o in increasing strictness – arbitrary and capricious  substantial evidence  clearly erroneous (court)
o Scalia said 1st two are same in ADAPSO

If reversible defect on judicial review, normal disposition is remand for new proceedings – rare for court to declare winner
If public right, does private right still exist?
o coexisting public and private remedies
o common law approach – borrow standard from law as standard of conduct
o staged interface – need public law ruling to bring claim
o primary jurisdiction (See Abilene)
o does not apply where issues to be decided by agency and court not inconsistent (See Nader v. Allegheny Airlines)
o public law superseded and eliminates common law
o agency could say pre-emption because supposed to adopt ALL necessary rules and regulations
o need intention to supersede or impossible to comply with state and federal law (See Geier)
 not true with federal action (See Sea Clammers)

28 U.S.C. § 1983
o applies to all laws not just equal rights statutes (Maine v. Thiboutot)
o to have right under federal grant must show
o statute benefits YOU
o Blessing test
 right not vague and amorphous (judicially enforceable standard)
 unambiguously imposes binding obligation
• MANDATORY condition (See Pennhurst – bill of rights not binding)
 no indication in statute that Congress intended enforcement by other means
• so can’t have exclusive means of enforcement
o unambiguous statement of right (Gonzaga v. Doe – no right to sue for privacy violation under FERPA)
 almost same statute as finding implied cause of action