Editing Administrative Law Funk/Outline

{{Infobox Text-Specific Outline
| subject         = Administrative Law
| authors         = Funk*Shapiro*Weaver
| text            = Administrative Procedure and Practice
| professor       = 
| school          = 
| related         = 
}}

==Introduction==

'''Administrative Law''' is the law that governs agencies and the law that agencies make.

'''Agency'''

Agencies execute the laws of the United State. An agency is ALWAYS created by statute. An agency has no power without Congressional action. Structure:
* <div style="margin-left:0.5in;margin-right:0in;"><u>Department-</u> the highest-ranking agency in terms of status. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Executive Branch Agencies</u>- subject to the control of the President. A Secretary serves until he/she resigns or is fired by the President. ex) dept. of agriculture, commerce</div>
** <div style="margin-left:1in;margin-right:0in;">Secretaries are nominated by President and voted in by Congress. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Independent Agencies</u>- headed by a multimember group that reaches a majority vote, members can only be removed for cause, members serve for a term of years, normally require that no more than a simple majority of the agency can come from a single party. </div>

'''Agency Categories'''

Congress delegates power to executive branch agencies. The agency uses its power to make and enforce regulations. The agencies decisions and laws are subject to review by the court.
* <div style="margin-left:0.5in;margin-right:0in;"><u>Regulatory Agencies</u>- agencies that regulate private conduct. These agencies exist at state, local, and federal levels. </div>
** <div style="margin-left:1in;margin-right:0in;">FTC regulates practices by commercial entities. p.16</div>
** <div style="margin-left:1in;margin-right:0in;">''Justification'' for regulation of private conduct- economic reasons (making markets more efficient) </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Entitlement Agencies</u>- agencies that administer entitlement programs. Focus on dispensing federal and state funds to right individuals. </div>
** <div style="margin-left:1in;margin-right:0in;">Social Security, Medicare, Medicaid, welfare, food stamps</div>
** <div style="margin-left:1in;margin-right:0in;">''Justification''- economic, in theory are insurance programs that the fed government created, thinking they would also help eliminate crime. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Everything Else</u>- IRS, the US Citizenship Immigration Services, Department of the State. </div>

'''Types of Agency Actions'''

There are three types of actions agencies can perform. Congress authorizes agencies to take these actions, specifying which agencies can do what. Agencies can exercise all three powers because an agency doesn’t derive its power from the constitution, but from Congress. Thus, it has derivative power. If it exceeds its power, it is subject to review by Congress and the Courts. Congress can modify an agency’s regulations
# <div style="margin-left:0.5in;margin-right:0in;"><u>Rulemaking</u>- agencies can promulgate rules that have the same force and effect as a law passed by congress. This reflects the legislative power of agencies</div>
# <div style="margin-left:0.5in;margin-right:0in;"><u>Adjudication</u>- agencies can apply an existing rule or statute to a set of facts to determine what outcome is required by the rule or statute. Determines whether individuals deserve entitlement. An agency may be able to prosecute violators. Typically, one party. This reflects the judicial power of agencies. </div>
# <div style="margin-left:0.5in;margin-right:0in;"><u>Investigation</u>- agencies can determine whether someone may be in violation of an agency rule or legislative mandate. This power is necessary to obtain information outside of agency. This reflects the executive power of agencies. </div>

==RULEMAKING==

'''§553.''' Rulemaking- when Congress or a state legislature creates an agency, it establishes a legislative mandate for the agency. As part of that mandate, the legislature can empower the agency to make rules. In other words, the legislature gives the agency the “power to fill up the details”
* <div style="margin-left:0.5in;margin-right:0in;">Whenever a new rule is made it only effects future conduct and is generally applicable (not individualized). An agency’s rulemaking authority is limited to what it has been delegated.</div>
** <div style="margin-left:1in;margin-right:0in;"><u>Rule</u>- the whole or a part of an agency statement of general or particular applicability and future effect §551(4). </div>

'''The Process'''
# <div style="margin-left:0.5in;margin-right:0in;">Determination of need for a rule</div>
# <div style="margin-left:0.5in;margin-right:0in;">Draft the rule</div>
# <div style="margin-left:0.5in;margin-right:0in;">The agency then publishes a notice of the rule</div>
# <div style="margin-left:0.5in;margin-right:0in;">Advocacy of private parties who can file written comment</div>
# <div style="margin-left:0.5in;margin-right:0in;">Ends with a promulgation of the rule in the Code of Federal Regulations</div>

'''Types of Rulemaking'''

'''Informal Rulemaking'''- '''§553'''. Involves fewer procedures than formal rulemaking. Agency must follow a simple three step process to engage in informal rulemaking:
# <div style="margin-left:0.5in;margin-right:0in;">'''Publish a notice''' of the proposed rules in the Federal Register (THERE ARE EXCEPTIONS)</div>
# <div style="margin-left:0.5in;margin-right:0in;">Must give interested persons the '''opportunity to participate''' in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” Thus, the agency has the option to permit oral presentation</div>
# <div style="margin-left:0.5in;margin-right:0in;">The agency must incorporate in the rules adopted a '''concise general statement of their basis and purpose'''</div>

'''Formal Rulemaking- §556 & §557 '''governs agencies when they engage in formal rulemaking. FR will be required if “rules are required by statute (like agency’s mandate/organic statute) to be made on the record after an opportunity for agency hearing.” An agency must follow the procedures in the listed sections after publishing a notice of the rule in the Fed Register.
* <div style="margin-left:0.5in;margin-right:0in;">AKA- 56 and 57 require an agency to undertake the same type of trial as it would use for adjudication in formal rulemaking. </div>
* <div style="margin-left:0.5in;margin-right:0in;">There is a presumption against formal rulemaking. Thus, the statute language must be as clear as possible and include at least the words “hearing” and “on the record”</div>
* <div style="margin-left:0.5in;margin-right:0in;">§557 prohibits Ex Parte Communications Outside of the Notice & Comment Period. </div>

'''Hybrid Rulemaking'''- adds more procedures than those specified under §553 informal making procedures, but impose less than those laid out in §556 and §557 formal procedure making.
* <div style="margin-left:0.5in;margin-right:0in;">Though APA only identifies informal and formal rulemaking, since the APA’s passage, Congress has created new agencies (or programs) while also imposing particular rulemaking procedures on those agencies. </div>
* <div style="margin-left:0.5in;margin-right:0in;">When Congress has imposed additional procedures, or substituted different procedures beyond those required by the APA. These procedures are typically more burdensome than informal rulemaking but less burdensome than formal rulemaking. (not recognized by APA)</div>

'''Notice and Comment- '''are essential to ensure the legitimacy of administrative norms and open democratic process with an opportunity for interested parties to communicate.''' '''

'''Sources of Rulemaking/Initiation Rulemaking'''<u>General Sources</u>
* <div style="margin-left:0.5in;margin-right:0in;">Legislation that requires specific regulation- this is the most common source (i.e. Clean Air Act and the EPA) </div>
* <div style="margin-left:0.5in;margin-right:0in;">Broad mandates that require the agency to adopt rules for broad societal goals- this gives an agency broad discretion in rulemaking (i.e. OSHA and protecting safety)</div>
** <div style="margin-left:1in;margin-right:0in;">Staff Recommendation- this is where rules typically begin. Staff may suggest a rule when they identify a problem that the agency should address. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">BOTTOM UP APPROACH</div>
** <div style="margin-left:1in;margin-right:0in;">Enforcement Efforts- agencies enforcement efforts may produce information that will show a need for a new or better rule. </div>
** <div style="margin-left:1in;margin-right:0in;">Formal System of Priority Setting- Agency can identify potential rulemaking subjects and rank them according to their importance. Thus, potential rules may be identified on on-going basis. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Proposals from White House of Congress- TOP DOWN APPROACH. The President can instruct departments to propose a rule. Congress can threaten an investigation or to cut agency budget if agency doesn’t make certain action.</div>

<u>Petition for Rulemaking</u>- looks more aggressive than lobbying, public influencing indirectly.
* <div style="margin-left:0.5in;margin-right:0in;">'''§553(3)''' ''who can petition''- says each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule. The APA does not require any further procedures, but an agency’s mandate may require more</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''§555(e)''' requires an agency to give “''prompt notice''” of a denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding, the notice shall be accompanied by a brief statement of the grounds of denial </div>
** <div style="margin-left:1in;margin-right:0in;">'''§551(13)''' “''Agency Action''”- includes “failure to act” and this definition of agency action applies to the judicial review chapter of the APA.</div>
*** <div style="margin-left:1.5in;margin-right:0in;">'''§706(1)''' ''Scope of Judicial Review of Agency Action'' that “the reviewing court shall compel agency action unlawfully withheld or unreasonably delayed”. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">Judged under the arbitrary and capricious standard of review. </div>

<u>Lobbying</u>- strategy that aims to persuade so you don’t have to fight for it.
* <div style="margin-left:0.5in;margin-right:0in;">Where should efforts be aimed?</div>
** <div style="margin-left:1in;margin-right:0in;">People who work for the agency- look to the organization form and find those who are in charge of what you want to change</div>
** <div style="margin-left:1in;margin-right:0in;">Office of legal counsel</div>
** <div style="margin-left:1in;margin-right:0in;">Outside the agency- members of congress who oversee the funding for the agency</div>
* <div style="margin-left:0.5in;margin-right:0in;">What should be said?</div>
** <div style="margin-left:1in;margin-right:0in;">Convince them to show how your change will help not only you, but them at the same time. </div>



<span style="color:#0000ff;">'''Telecommunications Research & Action Center v. Federal Communications Commission '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Agency Inaction))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">TRAC asked for judicial review of the FCC’s failure to decide whether a particular company should reimburse certain ratepayers for allegedly unlawful overcharges. The alleged overcharged occurred in 1978, and TRAC filed a petition in 1979 seeking FCC enforcement against the unlawful overcharges. The FCC issued a Notice of Inquiry seeking public comment, but failed to take any further action for the next 5 years. Chair of the Sub House Committee wrote to the FCC twice about the issue. The FCC responded that staff recommendation was expected in the fall – but during the fall, no recommendation was made. The FCC then responded that a recommendation was expected in the summer, but failed at this commitment too. After this court action was enough, the FCC announced it would have a recommendation by November 20, 1984. </div>
** <div style="margin-left:1in;margin-right:0in;">The court said that challenging the delay is just as relevant for rulemaking as it is for enforcement. That is because §555(e) is in the ancillary matters section and governs more than just rulemaking.</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Issue:'' may an agency’s delay in resolving overcharge claims warrant mandamus (an order governing an agency to do something)</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Test for Unreasonable Delay-''' is the agency’s delay so egregious as to warrant mandamus?</div>
** <div style="margin-left:1in;margin-right:0in;">The time agencies take to make decision must be governed by a “rule of reason”</div>
*** <div style="margin-left:1.5in;margin-right:0in;">AKA- not several years or decade</div>
** <div style="margin-left:1in;margin-right:0in;">The agency will be held to a Higher time standard when the issue involved human health and welfare standards</div>
** <div style="margin-left:1in;margin-right:0in;">The effect of expediting delay action on other high priority commitments the agency has.</div>
** <div style="margin-left:1in;margin-right:0in;">the nature and extent of the interests prejudiced by delay</div>
** <div style="margin-left:1in;margin-right:0in;">The court need not find unreasonable delay. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court'': they retained jurisdiction over whether the delays would justify mandamus because it was governed by a rule of reason. They told the agency they need to make a decision. </div>
** <div style="margin-left:1in;margin-right:0in;">Although courts are normally reluctant to engage in a review when an agency has not made a decision yet, unreasonable delay in agency in agency decision making falls into the narrow class of interlocutory appeals subject to judicial review</div>

<span style="color:#0000ff;">'''Arkansas Power & Light Co. v. Interstate Commerce Commission'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Denial of Petition))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">The ICC regulated the rate for which railroads could ship goods. Arkansas Power and other coal companies petitioned the ICC to institute rulemaking to collect data to enable the agency to implement its responsibility for approving the rates railroads may charge to captive shippers. ICC denied petition saying it would be unduly burdensome and should be done on a case by case basis. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Issue'': may a court compel an agency to institute rulemaking proceedings?</div>
* <div style="margin-left:0.5in;margin-right:0in;">Courts need not compel rulemaking when an agency has adequately explained its denial of a petition for rulemaking. Review is limited to ensuring that agency has adequately explained the facts and policy concerns it relied on, and the facts have some basis in the record. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' yes, but only in extremely rare instances. Because the agency explained why they denied it, there is not reason for the court to compel rulemaking procedures. </div>

<span style="color:#0000ff;">'''Massachusetts v. EPA'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">EPA denied petitions to issue regulations governing greenhouse gas emission. they basically said that the CAA doesn’t authorize the EPA to issue mandatory regulations regarding climate change and that even if the agency had the authority to set GHG emission standards, it would be unwise to do so at that time.</div>
* <div style="margin-left:0.5in;margin-right:0in;">An agency can deny a petition for rulemaking, but it must ground its reasons for action or inaction in a reasoned explanation that has basis in the mandating statute. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' the EPA offered no reasoned explanation for its refusal to decide whether GHG cause or contribute to climate change. Its action was arbitrary and capricious. </div>

'''EXCPETIONS to Rulemaking Procedures:'''

Exceptions because the public should not have a say over the items listed

'''§553(a) '''This section applies, according to the provisions thereof, except to the extent that there is involved-
# <div style="margin-left:0.5in;margin-right:0in;">''Military'' or ''foreign affairs'' function of the United States; or </div>
# <div style="margin-left:0.5in;margin-right:0in;">A matter relating to ''agency management'' or ''personnel ''or to ''public property, loans, grants, benefits, or contracts. ''</div>
## <div style="margin-left:1in;margin-right:0in;">Public Property- public land, Forest Service Bureau of Land Management and National Park Service Regulation</div>
## <div style="margin-left:1in;margin-right:0in;">Loans- student loans, small business loans, and housing rules</div>
## <div style="margin-left:1in;margin-right:0in;">Benefits-social security, Medicare, Medicaid, welfare rules</div>


'''§553(b) '''Except when notice or hearing is required by statute, this subsection does not apply- 
# <div style="margin-left:0.5in;margin-right:0in;">To ''interpretive rules'', general ''statements of policy'', or rules of agency ''organization, procedure, or practice; ''</div>
# <div style="margin-left:0.5in;margin-right:0in;">When the agency for ''good cause ''finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest</div>
## <div style="margin-left:1in;margin-right:0in;">“Good Cause” exception- Unlike the other exceptions, this exemption requires the agency to find good cause for invoking the exception and to public that finding and the reasons therefore with the rule. May include:</div>
### <div style="margin-left:1.5in;margin-right:0in;">Where advance notice would defeat agency’s regulatory objective</div>
### <div style="margin-left:1.5in;margin-right:0in;">Immediate action is necessary to reduce or avoid health hazards or imminent harm to persons or property, or</div>
### <div style="margin-left:1.5in;margin-right:0in;">Where inaction will lead to serious dislocation in government programs or the market place. </div>
## <div style="margin-left:1in;margin-right:0in;">Impracticable- a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings</div>
## <div style="margin-left:1in;margin-right:0in;">Unnecessary- unnecessary so far as the public is concerned</div>
## <div style="margin-left:1in;margin-right:0in;">Public Interest- supplements the previous terms and requires that pubic rulemaking procedures shall not prevent an agency from operating and that, on the other hand, lack of public interest in rulemaking warrants and agency to dispense with public procedure. </div>

'''§552. The Freedom of Information Act-''' NO agency rules are exempt from this section. It contains a general requirement that substantive rules of general applicability adopted as authorized by law and each amendment, revision, or repeal of the foregoing be published in the Federal Register for the guidance of the public. 

<span style="color:#0000ff;">'''American Hospital Assn. v. Bowen'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Procedural (management/Personnel) Exception))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">Congress amended the Medicaid system to create peer review organizations. Congress left the Department of Health and Services with broad discretion. They issued guidelines without notice and comment. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Rules of agency organization, procedure, or practice are exempt from the notice and comment requirements of agency rulemaking under the APA</div>
* <div style="margin-left:0.5in;margin-right:0in;">This exception is there to make sure that agencies retain control in their internal operations. When considering whether this execution applies to a procedural rule, the court looks to whether it entails a substantive ''value judgment'' or puts a stamp of approval or disapproval on any given type of behavior. </div>
** <div style="margin-left:1in;margin-right:0in;">Procedural- encoding a value judgment </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' notice and comment for these guidelines were unnecessary because of the exception. The directive did not define a new substantive standard, it simply allowed HHS to focus its inspections in a more productive way. It involved specific day to day duties about its members</div>

<span style="color:#0000ff;">'''Air Transport Association of America v. Dept. of Transportation'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Good Cause (procedure) Exception))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Overturned by JEM- this case extended substantive value judgment too far'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">Congress enacted amendments to the Federal Aviation Act. 9 months later the AAA made a body of regulations to govern the adjudication of administrative civil penalty actions. they did not follow the notice and comment procedure because they said it fell within the exemption of “good cause” </div>
* <div style="margin-left:0.5in;margin-right:0in;">Rules that substantially alter the rights of individuals, even if they involved a procedural aspect (like establishing an adjudicatory scheme governing adjudication of administrative civil penalty actions) are NOT exempt from the requirement of notice and comment. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' the defendant’s argument that these rules were strictly procedural was not taken by the court. These rules substantially altered the rights or interests of regulated parties. </div>
** <div style="margin-left:1in;margin-right:0in;">A rule is not exempt simply because it has the label “procedural” </div>

<span style="color:#0000ff;">'''JEM Broadcasting Company, Inc. v. Federal Communications Commission '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Procedural Exception))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">The FCC adopted a hard look regulation in anticipation of a flood of FM license applications. There was a fixed filling period during which the applications were checked for substantial completeness. If they were not complete they were not accepted and that was the end of it. </div>
** <div style="margin-left:1in;margin-right:0in;">''Hard Look rule-'' a rule that disallows the applicant from having a chance to amend its application </div>
* <div style="margin-left:0.5in;margin-right:0in;">A “hard look rule” does not require notice and comment rulemaking under §553 because it is procedural. '''Two-Part Test''' (modern standard)</div>
** <div style="margin-left:1in;margin-right:0in;">'''Does the rule alter the rights of the parties?'''</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If so, it is substantive- it must go through notice and rulemaking</div>
** <div style="margin-left:1in;margin-right:0in;">'''Are the substantive effects sufficiently grave so that Notice and Comment are needed to safeguard the policies underlying the APA?'''</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If not, it will likely be procedural. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' this is a procedural rule because they are saying there is a time window, they didn’t add new requirements. Thus, the hard look rule did not require notice and comment. </div>
** <div style="margin-left:1in;margin-right:0in;">The hard look rules did not change the substantive standards (like financial qualifications, proposed programming)</div>

'''Formal and Informal and Hybrid Rulemaking'''

<span style="color:#0000ff;">'''United States v. Allegheny-Ludlum Steel Corp. '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Formal))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">The agency statute for the ICC authorized the Commission “after hearing, on a complaint or upon its own initiative without complaint, (to) establish reasonable rules, regulations and practices with respect to car service” (i.e. not mention of requiring rules to be “on the record’). Some shippers challenged some the of ICC’s regulations believing that the regulations required the ICC to hold a hearing before promulgating the rules. </div>
* <div style="margin-left:0.5in;margin-right:0in;">An enabling act that requires a rule to be made after a “hearing” is exempt form the formal rulemaking requirements of §556 & §557 UNLESS the act also requires the rule to be made “on the record”</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Two Part Test''' → an agency must engage in formal rulemaking ONLY when the rule is required by statute to be made:</div>
** <div style="margin-left:1in;margin-right:0in;">On the record; and</div>
** <div style="margin-left:1in;margin-right:0in;">After opportunity for an agency hearing</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' informal rulemaking was appropriate. Although the enabling act required a “hearing,” the rule was exempt from the formal rulemaking requirements because the act did not require the rule to be made “on the record.” Under §553, the formal rulemaking requirements of 56 and 57 are invoked when rules must be made on the record. </div>

<span style="color:#0000ff;">'''United States v. Florida East Coast Railway Co.'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Affirmed ALS, Formal Rulemaking Trigger))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">Same facts as above about the ICC (which no longer exists). The ICA authorizes the ICC to engage in rulemaking only “after hearing.” It does not require that the rulemaking be on the record. The ICC decided that they would only receive comments in written form. Two railroad companies challenged this arguing that it did not comply with §556 and §557; and that they were prejudiced by the ICC only receiving comment in written form. DC found that this agency must use formal rulemaking procedures before rulemaking, the ICC challenged this.</div>
* <div style="margin-left:0.5in;margin-right:0in;">A “hearing” triggers the need for trial type proceedings in RM if the enabling statute outlines such requirements for the hearing…but 56 and 57 will not be invoked solely because a hearing is required. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Communications relevant to the agency proceeding not on the public record between an agency employee involved in the decisional process and an interested person outside the agency. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' this state requires that the rulemaking be done “after hearing,” but it does not require it be made on the record. Because of this wording, only the procedures of §553 apply. Formal rulemaking procedures are a lot stricter. </div>

<span style="color:#0000ff;">'''Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">The NRDC challenged a rule promulgated by the atomic energy commission, arguing that the AEC denied it meaningful opportunity to participate in rulemaking proceedings.</div>
* <div style="margin-left:0.5in;margin-right:0in;">A court does not have the authority to require additional procedures beyond those required in the APA (except as provided by law otherwise). </div>
* <div style="margin-left:0.5in;margin-right:0in;">A court should NOT impose trial like procedures in informal rulemaking (Congress can impose additional procedures)</div>
* <div style="margin-left:0.5in;margin-right:0in;">An agency cannot be compelled to support an informal rule with a full record because it would require a full adjudicatory hearing prior to the promulgation of every rule. </div>
* <div style="margin-left:0.5in;margin-right:0in;">AKA- court imposed procedures beyond APA are prohibited, Congress/Agency alone can require additional procedures. </div>

'''Informal Rulemaking'''
# <div style="margin-left:0.5in;margin-right:0in;">Notice</div>
# <div style="margin-left:0.5in;margin-right:0in;">Opportunity to participate</div>
# <div style="margin-left:0.5in;margin-right:0in;">(a) Concise and General Statement of Purpose (if rule created) and (b) reasoned explanation (<span style="color:#0000ff;">''MA v. EPA''</span>) (if rule denied)</div>

''Notice Requirement ''

The APA requires that a “general notice of proposed rulemaking shall be published in the Federal Register” = constructive notice. Agencies rarely rely on actual notice. APA does not require full text of proposed rules
* <div style="margin-left:0.5in;margin-right:0in;"><u>APA Requirements</u> - §553(b), NPRM ''must'' include:</div>
** <div style="margin-left:1in;margin-right:0in;">'''Time, place, and nature''' of the public proceeding</div>
** <div style="margin-left:1in;margin-right:0in;">Agency indication of '''the legal authority under which the rule is proposed'''<nowiki>; and</nowiki></div>
** <div style="margin-left:1in;margin-right:0in;">Either the terms or '''substance of the proposed rule''' or '''a description of the subjects''' and issues involved (like in the preamble) </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Court-imposed Rule-</u> Agencies must identify in the NPRM the data and methodology of any scientific evidence on which they rely (despite <span style="color:#0000ff;">''Vermont Yankee''</span>)</div>

''The Purpose of Requiring Notice and Comment''
* <div style="margin-left:0.5in;margin-right:0in;">Inform the agency so that the rules they adopt are as accurate and fair as possible</div>
* <div style="margin-left:0.5in;margin-right:0in;">Involve the public so that there is a sense of participation in rules.</div>
* <div style="margin-left:0.5in;margin-right:0in;">Agencies are not required to listen to comments, but must give consideration to. This is because they would have to start over every time a new person commented. </div>

''Common Procedural Challenge''
* <div style="margin-left:0.5in;margin-right:0in;">Adequacy of Notice- the notice of a proposed rule must “fairly apprise interested persons” of the issues in rulemaking. Interested persons are fairly apprised if the final rule is a “<u>logical outgrowth</u>” of the rulemaking proceeding.</div>
* <div style="margin-left:0.5in;margin-right:0in;">One issue the courts have not adequately addressed is to what extent an agency can change a final rule without being required to give new notice. If minimal change, most likely no new notice is required. </div>

<span style="color:#0000ff;">'''Chocolate Manufacturers Association v. Block'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Logical Outgrowth))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">WIC designs food packages based on the different nutritional needs of women, infants, and children. The USDA published a preamble, in which it discussed the general purpose of the rule and the problems associated with high sugar foods. Neither the preamble nr the rule talked about sugar in relation to flavored milks. Flavored milk had always been approved item in the WIC program. In response to comments the USDA deleted flavored milk from the WIC program. The CMA brought action to fight that final rule. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Although notices need not require every potential regulatory change that will be in the final rule, it must be “sufficiently descriptive to provide interested parties with a fair opportunity to comment and participate in rulemaking”</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Logical Outgrowth Test'''- notice is adequate if the changes in the original plan “are in character with the original scheme,” and the final rule is a “logical outgrowth” of the notice and comments already given. Case by case analysis and fact specific. </div>
** <div style="margin-left:1in;margin-right:0in;">Would members of the public have anticipated the change that the agency ultimately made with the final rule?</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If yes, notice was adequate.</div>
** <div style="margin-left:1in;margin-right:0in;">Does the final rule materially alter the issues involved during the rulemaking?</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If yes, notice was inadequate. </div>
** <div style="margin-left:1in;margin-right:0in;">Does the final rule substantially depart from the terms or substance of the proposed rule?</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If yes, notice was inadequate. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court:'' did not provide sufficient notice for its final rule. Although the rule was an outgrowth of the notices and comments during the rulemaking process, it was not a logical outgrowth nor was it in character with the original scheme. </div>
** <div style="margin-left:1in;margin-right:0in;">Had permitted the use of chocolate milk in the WIC program for years</div>
** <div style="margin-left:1in;margin-right:0in;">There was no indication that interested parties should be concerned about the sugar content in the flavored milk. Nowhere in the 12-page preamble did it speak of the prohibition of chocolate milk, it actually expressly noted that flavored or unflavored milk was permitted. </div>
** <div style="margin-left:1in;margin-right:0in;">Thus, the interested parties did not have a fair opportunity to contribute to the administration rulemaking process. </div>

''Opportunity for Comment''

The purpose of notice is to enable interested parties to comment on the proposed rule. §553(c) requires agencies to proved interested persons an opportunity to comment through “submission of written data, views, or arguments”
* <div style="margin-left:0.5in;margin-right:0in;">Oral hearings are not required</div>
* <div style="margin-left:0.5in;margin-right:0in;">No pre-determined time period- no specific time for comment period</div>
* <div style="margin-left:0.5in;margin-right:0in;">Final rule must be published 20 days prior to effective date §553(d)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Ex Parte Communication – informal context. If the statute does not expressly require anything to go in the record, a court will not enforce ex party communication. </div>

'''Judicial Review of Rulemaking''' §706

How courts review agency actions alleged to be substantially unlawful. The procedural and substantive requirements (agency mandate) for rulemaking are binding on agencies regardless of their enforceability in courts. However, absent judicial enforcement, agencies are less likely to comply with the laws. 
# <div style="margin-left:0.5in;margin-right:0in;">Judicial Review '''§706(2)'''</div>
## <div style="margin-left:1in;margin-right:0in;">Arbitrary and Capricious</div>
## <div style="margin-left:1in;margin-right:0in;">Unconstitutional- de novo</div>
## <div style="margin-left:1in;margin-right:0in;">No Statutory Authority- <span style="color:#0000ff;">''chevron''</span></div>
## <div style="margin-left:1in;margin-right:0in;">Procedurally Invalid- de novo</div>
## <div style="margin-left:1in;margin-right:0in;">Unsupported by Substantial Evidence </div>
### <div style="margin-left:1.5in;margin-right:0in;">Formal rulemaking </div>
### <div style="margin-left:1.5in;margin-right:0in;">§556/57 only </div>
## <div style="margin-left:1in;margin-right:0in;">Ignore</div>



'''When Chevron Applies → '''when Congress has delegated authority to the agency to make legislative rules carrying the force of law and the agency interpretation was promulgated in the exercise of that authority. 

<span style="color:#0000ff;">'''Chevron v. Natural Resources Dense Council, Inc. '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Statutory Interpretation/Authority))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">EPA had created a rule which interpreted the words “stationary source” to include what agencies called the “bubble policy.” The bubble policy was basically a cap over factories who had more than one stationary source. The bubble policy allowed these kinds of places to fix/upgrade one stack as long as they did not go over their total cap for emissions</div>
* <div style="margin-left:0.5in;margin-right:0in;">A court is required to defer to an agency’s interpretation of a statue if the statute is silent or ambiguous with respect to the question at issue and the agency’s interpretation of that statute is reasonable. Ambiguous statutes mean that Congress has granted the agency power broad deference to interpret. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Chevron Two Step:'''</u></div>
** <div style="margin-left:1in;margin-right:0in;"><u>Whether Congress has directly spoken on the issue</u> (can matter be resolved based on plain text of the statute)</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If statute/congressional intent is clear, no deference and apply it</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If statute is ambiguous or silent on the matter, go to step 2</div>
** <div style="margin-left:1in;margin-right:0in;"><u>Ask whether the agency’s interpretation is permissible or reasonable</u></div>
*** <div style="margin-left:1.5in;margin-right:0in;">If it is, court will give deference to agency and valid.</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If no, invalid. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Court: although Congress did not have specific intention to apply the “bubble concept” imposed by the EPA, the EPA’s interpretation was a reasonably policy choice because the statute did not define “sources”</div>
** <div style="margin-left:1in;margin-right:0in;">The interpretation was a permissible construction of the statute and seeks to accommodate progress in reducing air pollution with economic growth </div>
** <div style="margin-left:1in;margin-right:0in;">The agency’s interpretation is entitled to deference. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Separations of Powers-'' judges'' are'' not experts in the fired and must not make decisions to reconcile competing political interests. Congress gave the agency that policy-making authority and has political remedies if the agency is not acting in compliance. </div>

What courts can and should consider when deciding if a statute is ambiguous (step 1)
* <div style="margin-left:0.5in;margin-right:0in;">''Plain meaning approach'' (texualism) → specific language or definition, the language in the design of that statute as a whole. Tends to reduce ambiguity. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Holistic approach'' (interpretivisim) → congressional intent, beyond specific language, look to legislative purpose and history.</div>

'''Substantive Decisions (Findings and Conclusions)'''

Whenever an agency promulgates a rule it makes two types of substantive decisions:
# <div style="margin-left:0.5in;margin-right:0in;">Determines the basis of the evidence available to it</div>
# <div style="margin-left:0.5in;margin-right:0in;">What type of rule, if any, is appropriate in light of those facts?</div>

'''Scope of Review:''' §706 divides the scope of review into two categories
# <div style="margin-left:0.5in;margin-right:0in;"><u>Formal Rulemaking</u> → Substantive Evidence</div>
## <div style="margin-left:1in;margin-right:0in;">Courts should uphold a rule if it finds the agency’s decision to be “reasonable” or the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Courts need not agree, just must think a agency’s choice is reasonable. </div>
# <div style="margin-left:0.5in;margin-right:0in;"><u>Informal Rulemaking</u> → Arbitrary and Capricious</div>
## <div style="margin-left:1in;margin-right:0in;">A court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. </div>
## <div style="margin-left:1in;margin-right:0in;">Agencies must provide “adequate reasons” for adoption of the rule. When an agency lacks adequate reasons, its action is A&C</div>
## <div style="margin-left:1in;margin-right:0in;">An agency decision will also be A&C when it goes against intent of Congress. However, typically courts will just remand the rule rather than declare it invalid. </div>
### <div style="margin-left:1.5in;margin-right:0in;">Courts should give a “hard look” at agency decisions when reviewing informal rules.</div>
## <div style="margin-left:1in;margin-right:0in;">This does not apply to Hybrid Rulemaking</div>

A&C boils down to two things §706(2):
# <div style="margin-left:0.5in;margin-right:0in;">Agencies finding of fact</div>
## <div style="margin-left:1in;margin-right:0in;">Looking at whether agency has built a table that stands with the facts serving as foundation (legs). Are those findings of fact supported by evidence in the record? If not, need to take away each leg that doesn’t support. Maybe left with not enough support. </div>
# <div style="margin-left:0.5in;margin-right:0in;">Policy conclusions the agency draws from those facts</div>
## <div style="margin-left:1in;margin-right:0in;">Is this a good fit for findings of fact? i.e. is it the right shape tabletop</div>

'''Rulemaking Record'''

§706 requires the court to “review the whole record” when determining the ''validity'' of an agency rule.
* <div style="margin-left:0.5in;margin-right:0in;"><u>Formal Rulemaking</u> – the WHOLE record is the testimony and documents created by the agency conducted hearing procedure specified in §556-7</div>
** <div style="margin-left:1in;margin-right:0in;">The “record” is the evidence that the court evaluates to determine for the agency has met the substantive evidence standard. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Informal Rulemaking</u> – No record. The court will look at the information that the agency actually considered in making the decision</div>
** <div style="margin-left:1in;margin-right:0in;">Typically composed of Federal Register notices for the proposed and final rule, comments submitted, any studies or data created or used by the agency. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Deference</u> – when unknowable facts are being reviewed, courts should be highly deferential to agency decisions</div>

<span style="color:#0000ff;">'''Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins. Co. '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Arbitrary & Capricious)) '''</div>
* <div style="margin-left:0.5in;margin-right:0in;">The National Highway Traffic Admin appealed from a decision finding that the revocation of the requirement that new motor vehicles produced after September 1982 be equipped with passive restraints to protect occupants in the event of a collision, without considering the possible use of air bags, was arbitrary and capricious. </div>
* <div style="margin-left:0.5in;margin-right:0in;">When an agency modifies or rescinds a previously promulgated informal rule, it is required to supply a satisfactory, rational analysis supporting its decision of the rational connection between the facts found and the choice made. If not, the agency decision will be arbitrary and capricious</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Court'': the agency must better explain its reasons for rescinding the rule. Must show a rational connection between the facts found and decision rendered</div>
** <div style="margin-left:1in;margin-right:0in;">The agency failed the court’s “hard look” review- the department had made a fatal decision by failing to consider an obvious alternative to the problem proposed. </div>

<nowiki>**Agencies are allowed to change their mind, but it must be on the record and they must tell us why**</nowiki>

Rulemaking
# <div style="margin-left:0.5in;margin-right:0in;">Initiating Rulemaking</div>
## <div style="margin-left:1in;margin-right:0in;">Lobbying</div>
## <div style="margin-left:1in;margin-right:0in;">Petitioning for Rulemaking</div>
# <div style="margin-left:0.5in;margin-right:0in;">Rulemaking Procedures (APA)</div>
## <div style="margin-left:1in;margin-right:0in;">Exceptions</div>
### <div style="margin-left:1.5in;margin-right:0in;">Military/Foreign '''§553(a)'''</div>
### <div style="margin-left:1.5in;margin-right:0in;">Management/Personnel </div>
### <div style="margin-left:1.5in;margin-right:0in;">Public Property </div>
### <div style="margin-left:1.5in;margin-right:0in;">Interpretive Rules and Policy §'''553(b)'''</div>
### <div style="margin-left:1.5in;margin-right:0in;">Procedural – agency organization</div>
### <div style="margin-left:1.5in;margin-right:0in;">Good Cause </div>
## <div style="margin-left:1in;margin-right:0in;">Formal Rulemaking</div>
## <div style="margin-left:1in;margin-right:0in;">Informal Rulemaking</div>
### <div style="margin-left:1.5in;margin-right:0in;">Notice '''§553(b)'''</div>
### <div style="margin-left:1.5in;margin-right:0in;">Comment '''§553(c)'''</div>
### <div style="margin-left:1.5in;margin-right:0in;">Concise General Statement of their Basis and Purpose '''§553(c)'''</div>
# <div style="margin-left:0.5in;margin-right:0in;">Hybrid Rulemaking</div>
## <div style="margin-left:1in;margin-right:0in;">Statutes- extra rules added by congressional statute </div>
## <div style="margin-left:1in;margin-right:0in;">Executive Order- not required by statute</div>
# <div style="margin-left:0.5in;margin-right:0in;">Judicial Review '''§706(2)'''</div>
## <div style="margin-left:1in;margin-right:0in;">Arbitrary and Capricious</div>
## <div style="margin-left:1in;margin-right:0in;">Unconstitutional- de novo</div>
## <div style="margin-left:1in;margin-right:0in;">No Statutory Authority- chevron</div>
## <div style="margin-left:1in;margin-right:0in;">Procedurally Invalid- de novo</div>
## <div style="margin-left:1in;margin-right:0in;">Unsupported by Substantial Evidence </div>
### <div style="margin-left:1.5in;margin-right:0in;">Formal rulemaking </div>
### <div style="margin-left:1.5in;margin-right:0in;">§556/57 only </div>
## <div style="margin-left:1in;margin-right:0in;">Ignore</div>

==ADJUDICATION==

Adjudication is the process for formulating an “order.” Applies to regulated entities and individuals
* <div style="margin-left:0.5in;margin-right:0in;">Ex) adjudication can be used to determine whether entity has violated agency rule, determine eligibility of individuals, alleged violation of statutes or regulations. </div>

Any process that results in a final disposition, that is not rulemaking, is adjudication. Agencies ''can apply an existing rule or statute to a set of facts'' to determine what outcome is required by the rule or statute. An agency decision from adjudication will have the same force of law as if it had been made by a court. This reflects the ''judicial power'' of agencies.
* <div style="margin-left:0.5in;margin-right:0in;">'''Order'''- the whole or a part of a final disposition of an agency matter other than rulemaking, but including licensing. Can be affirmative, negative, injunctive, or declaratory in form</div>
* <div style="margin-left:0.5in;margin-right:0in;">EX) FDC can do investigation into trade process</div>

'''Overview/Review of APA Sections'''

'''§554''' – outlines the procedures required for <u>formal adjudication</u>. These procedures resemble those used in trial.
* <div style="margin-left:0.5in;margin-right:0in;">The requirement of notice to the parties of the hearing (b)</div>
* <div style="margin-left:0.5in;margin-right:0in;">The opportunity to reach a settlement (b) & (c)(1)</div>
* <div style="margin-left:0.5in;margin-right:0in;">The person in charge of the hearing is prohibited from receiving ex parte contacts or communications from the parties (this includes employees of the agencies) </div>

'''§556''' – outlines the procedures required for <u>hearings</u>.
* <div style="margin-left:0.5in;margin-right:0in;">Allows an ALJ and outlines the authority of the ALJ (b) & (c)</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Places the burden of proof on the agency'' (2)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Allows for oral and written evidence</div>
* <div style="margin-left:0.5in;margin-right:0in;">Allows cross-examination of witnesses</div>
* <div style="margin-left:0.5in;margin-right:0in;">Mandates that every decision be based on the entire record, including the hearing transcript and all documentary evidence (d)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Also, prohibits any person who makes the final decision during the appeals process from receiving ex parte contact. </div>

'''§557''' – outlines the procedures required for <u>appeals</u>. 
* <div style="margin-left:0.75in;margin-right:0in;">Requires the ALJ to “initially decide the case.” However, the agency can bypass this step (b)</div>
* <div style="margin-left:0.75in;margin-right:0in;">When the ALJ initially decides a case, ''any party can appeal the ALJ’s decision to an agency administrator or to commission members. ''</div>
** <div style="margin-left:1.25in;margin-right:0in;">''Only agency that congress created a separate group for appeals = OSHA''</div>
* <div style="margin-left:0.75in;margin-right:0in;">The parties have the right to submit briefs</div>
* <div style="margin-left:0.75in;margin-right:0in;">The administrator or commission are not required to give deference to the ALJ’s factual finding because “on appeal from or review of the initial decision, the agency has all the power which it would have in making the initial decision.”</div>

'''§554(d) – '''<u>Separation of Functions</u>''' '''
* <div style="margin-left:0.5in;margin-right:0in;">An ALJ is prohibited from consulting a person or party on a fact in issue, unless notice and opportunity for all parties to participate (1)</div>
* <div style="margin-left:0.5in;margin-right:0in;">An ALJ is not responsible to or subject to the supervision or direction of an employee or agency engaged in the performance of investigative or prosecuting functions for an agency (2)</div>

'''Formal Adjudication '''

Formal adjudication must resemble a trial, while informal does not require the same procedures. Under §554(a), whether an agency is required to engage in formal adjudication depends on what Congress has required by statute (“on the record after opportunity of hearing”). The components of FA:
# <div style="margin-left:0.5in;margin-right:0in;">'''Pre-hearing procedures''' –<u> ''NOTICE'' </u>(typically the complaint). Must begin with notice including time, place, and manner, legal authority for hearing, and matters of fact.</div>
## <div style="margin-left:1in;margin-right:0in;">Did the agency inform the D of the nature of the charges against him or her?</div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Intervening Parties''' – district court has allowed parties to intervene in an adjudication. Public is allowed to be in here as long as they have standing. </div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Discovery''' – allowed in formal but not in informal. Can use the Freedom of Information Act against agency to get information and subpoenas are also available to both the party and the agency. </div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Settlement''' – courts can allow parties to enter into a consent agreement §556</div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Hearing''' – resembles a judicial trial (hearings, motions, exhibits, witnesses) §556(c)</div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Hearing Officer'''- head of agency or members of commission have the authority to preside over agency adjudication §556(b)(1) and (3). However, the vast majority do not preside over hearings, ALJs do. </div>
## <div style="margin-left:1in;margin-right:0in;">ALJ- make findings of fact. Has all the powers as a trial judge. ALJs are purportedly independent of the agency (no control over pay, not limited to fixed term and serve indefinitely, exempt from performance ratings, right to formal adjudication before terminated, agencies do not have supervisory authority over ALJs under the Separation of Powers Provision, agencies cannot assign cases to ALJ)</div>

''How to determine when §554 requires an Agency to use Formal Adjudication'' → D.C. says use the Chevron test. There is not presumption for or against formal adjudication. If a statute is ambiguous, use the Chevron test to determine whether formal or informal adjudication is required. AKA – the court will defer to the agency interpretation of a statute rather than determining what the language meant for itself.
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Chemical Waste Management''</span></div>

'''When APA has to make a decision after the hearing, then what? Depends on the Circuit. '''
* <div style="margin-left:0.5in;margin-right:0in;"><u>First Circuit-</u> assumes that a hearing requires formal procedures. Do not need to see the phrase, “on the record,” the preference should be formal procedures for adjudication.</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Seventh Circuit</u>- statute has to specifically use the words “on the record.” Formal is not required unless it uses that phrase.</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>DC Circuit-</u> apply Chevron, it is ambiguous when Congress says they have to hold a hearing because a hearing can mean many things. It should be up to the agency’s discretion. </div>

<span style="color:#0000ff;">'''National Labor Relations Board v. Local Union No. 25, International Brotherhood of Electrical Workers'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' NLRS protects union workers from employers. Flores complained that the union was refusing to refer him for jobs because he was not a member of the union.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''': the ALJ cannot rule on issues that are not raised in the complaint. Parties are required to get proper notice first. In this case, the ALJ was looking at issues not raised and therefore could not rule on them because there was no proper notice. </div>



<span style="color:#0000ff;">'''Southwest Sunsites, Inc. v. Federal Trade Commission'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' FTC filed a complaint against Sunsites for “violating” the FTCA. FTC had new deception standard that imposed a greater burden of proof on the FTC.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' there does not need to be notice when an agency applies a standard that is more narrow. This standard was actually harder for the agency to prove.</div>

<span style="color:#0000ff;">'''John Capanos and Sons, v. Food and Drug Administration'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' the company made injectable medications. They were then told they could not produce these medications anymore because they constantly violated procedures. They wanted a hearing and were told the needed to show a genuine issue of material fact. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the notice requirement was inadequate because it did not show them what they had to submit. The notice wasn’t clear. </div>

'''Informal Adjudication'''

The APA does not outline any procedures for an agency that is not required by mandate to conduct adjudication “on the record after the opportunity of an agency hearing.” §554(a)

'''Other Constraints on Adjudication (Both Formal and Informal)'''
# <div style="margin-left:0.5in;margin-right:0in;">Agency action must meet the minimal requirements of §555, that governs ALL agency proceedings</div>
## <div style="margin-left:1in;margin-right:0in;">The right in any proceeding to be represented by counsel</div>
## <div style="margin-left:1in;margin-right:0in;">The right of any interested person to appear before an agency in any proceeding</div>
## <div style="margin-left:1in;margin-right:0in;">The right to have an agency conclude a matter within “reasonable time”</div>
## <div style="margin-left:1in;margin-right:0in;">The right to retain copies of material to be submitted to an agency</div>
## <div style="margin-left:1in;margin-right:0in;">The right to utilize agency subpoena power</div>
## <div style="margin-left:1in;margin-right:0in;">Right to receive prompt notice of denial of a request, application, or petition, as well as a “brief statement of the grounds for denial”</div>
# <div style="margin-left:0.5in;margin-right:0in;">The statute still may require some procedures even if the mandate does not require formal adjudication.</div>
# <div style="margin-left:0.5in;margin-right:0in;">Agencies may impose ''their own requirements'' for informal procedures and publish them in the Code of Federal Regulations </div>
# <div style="margin-left:0.5in;margin-right:0in;">''The Due Process Clause'' may apply to certain types of agency action – if there are not enough procedures in place for an informal adjudication, and a person’s property or liberty are at stake, the court will have to determine whether the due process clause obligated the agency to use more procedure than before. </div>

'''Ex Parte Communications'''

The APA prohibits ex parte contacts in formal adjudication, but NOT informal adjudication. The prohibition applies to “''any interested party outside the agency''” (interested party is someone who has a greater interest in the matter than the general public). 
* <div style="margin-left:0.5in;margin-right:0in;">§554(d) also bars an “''employee or agent engaged in the performance of investigative or prosecuting functions''” from communicating with anyone who is responsible for making a decision in the matter (like ALJ or Board member). The prohibition applies to both the decision maker and the party! → can’t have one sided communication </div>
* <div style="margin-left:0.5in;margin-right:0in;">A person who gets a communication must completely disclose it on the record and allow the opposing party to respond. </div>

''Factors in ex parte communications:''
* <div style="margin-left:0.5in;margin-right:0in;">Oral or written communication</div>
* <div style="margin-left:0.5in;margin-right:0in;">Not on the public record,</div>
* <div style="margin-left:0.5in;margin-right:0in;">To which reasonable prior notice to all parties is not given</div>
* <div style="margin-left:0.5in;margin-right:0in;">Communication related to the merits of the provisions is explicitly prohibited</div>
* <div style="margin-left:0.5in;margin-right:0in;">Remedy = disclosure or new hearing</div>

§557(d)(1)(A) → outside in (relevant to the merits), interested person can’t talk about the matter to either the body comprising the agency or anyone else involved. 

§557 (d)(1)(B) → inside out

§557(d)(1)(C) → disclosure

§557(d)(1)(D) → hearing

§557(d)(1)(E) → ex parte communication prohibitions begin once the party receives the notice of the complaint

<span style="color:#0000ff;">'''Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule''': An ex parte communication will only cause a remand of the original decision if the agency’s decision making was irrevocably tainted as to make the ultimate judgment of the agency unfair. Us the following factors:</div>
** <div style="margin-left:1in;margin-right:0in;">Gravity of ex parte communication</div>
** <div style="margin-left:1in;margin-right:0in;">Whether the contacts influence the agency’s ultimate decision</div>
** <div style="margin-left:1in;margin-right:0in;">The party that made the ex parte contacts benefit</div>
** <div style="margin-left:1in;margin-right:0in;">Whether the contents were unknown to the opposing parties</div>
** <div style="margin-left:1in;margin-right:0in;">Whether the vacation of the agency’s decision and remand for new proceedings serve a useful purpose. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the ex parte communications were not enough to cause a remand of the original decision because the communications had no effect on the final decision of the agency. </div>

'''Due Process Hearings'''

The Due Process Clause requires the government to hold some type of hearing (for disputes of factual issues) before it deprives an individual of “life, liberty, or property”
# <div style="margin-left:0.5in;margin-right:0in;">Is it rulemaking? If yes, no Due Process issues</div>
# <div style="margin-left:0.5in;margin-right:0in;">Is the government making an '''individualized determination?'''</div>
## <div style="margin-left:1in;margin-right:0in;">Does not mean legislation and generalized decision making (which is the majority)</div>
# <div style="margin-left:0.5in;margin-right:0in;">Is the individualized determination by government affecting a '''constitutionally protected interest'''?</div>
## <div style="margin-left:1in;margin-right:0in;">Liberty</div>
## <div style="margin-left:1in;margin-right:0in;">Property- a contractual agreement, taxation, government entitlements</div>
# <div style="margin-left:0.5in;margin-right:0in;">'''How much process is due'''? Only go to this step if you answered “YES” to the previous three questions. If no procedure is used – then due process issue (<span style="color:#0000ff;">''Mathews v. Eldridge''</span>) </div>

'''Individualized Decisionmaking'''

Due process is required for individual deprivations of property or liberty, but policy-based deprivations of property or liberty <u>affecting a class</u> of individuals do not. 

<span style="color:#0000ff;">'''Londoner v. Denver'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The plaintiffs had a tax assessment placed on the land they owned by the City of Denver for the cost of paving a street near their land. The charter for the city granted the city power to make local improvements and to assess the cost upon property specifically benefited. The charted laid out requirements for the City to make such assessments, including due notice and opportunity for hearing to those affected by the assessment. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Due process is required when there is an individualized adjudication where someone’s deprived of his or her property or liberty.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''''':'' the assessment was void because the plaintiffs were not afforded the opportunity to be heard and did not have adequate notice</div>
** <div style="margin-left:1in;margin-right:0in;">Before the tax became irrevocably fixed, the taxpayer shall have an opportunity to be heard and must have notice (either by personal or publication, or by a law)</div>
** <div style="margin-left:1in;margin-right:0in;">Although an opportunity was given to submit in writing all objections and complaints of the tax, there should have been a hearing because of the issue</div>

<span style="color:#0000ff;">'''Bi-Metallic Investment Company v. State Board of Education'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The State Board of Equalization decided to increase the valuation of all taxable property in Denver by 40 percent. The Plaintiff brought the suit on the grounds that he was deprived property without due process of law because he did not have an opportunity to be heard</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Due process simply does not apply to general adjudication (lawmaking/rulemaking).</div>
* <div style="margin-left:0.5in;margin-right:0in;">Due process is only required when “''a relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds''”</div>
** <div style="margin-left:1in;margin-right:0in;">If a rule affects more than “a few people” there is no requirement for an opportunity to be heard</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' state board did not violate the due process rights of Denver citizens because they made a general adjudication.</div>
** <div style="margin-left:1in;margin-right:0in;">It is impracticable that everyone should have a direct voice in the adoption of a rule that only affects a few people</div>
** <div style="margin-left:1in;margin-right:0in;">Voters ultimately are in control of those making the rules, the safeguard in general lawmaking is the political process. </div>

'''Protected Interests'''

'''Property'''

The court will ask does the government action constitute a deprivation of life, liberty, or property? If not, Due Process Clause does not apply. Deprivations of life, liberty or property include fundamental rights, but do not include “privileges.” In <span style="color:#0000ff;">''Goldberg v. Kelly''</span>, the line between fundamental rights and privileges became nonexistent when the court held that a government entitlement (welfare determination) was entitled to due process under the Due Process Clause. 
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Goldberg''</span>- we can have a due process entitlement in statute. Claim of entitlement to welfare payments that was grounded in a statute defining eligibility- right to a hearing that may attempt to show recipients were within the statutory terms of eligibility</div>

<span style="color:#0000ff;">'''Board of Regents v. Roth'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((We can have a DP entitlement in K))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': Teacher was hired as an assistant professor for a fixed term of one year. After the term was completed, the school informed him that he would not he rehired for the next year. The teacher brought this action alleging that the school’s decision not to rehire him infringed on his 14<sup>th</sup> amendment rights.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' If an individual has a contract for one year of employment, he cannot have a claim to more than a year → a person must be of a “''legitimate claim of entitlement''” to have a protected interest under the DPC.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the school’s decision did not infringe on the teacher’s 14<sup>th</sup> amendment rights</div>
** <div style="margin-left:1in;margin-right:0in;">Because the teacher was dismissed without cause (no charge against him for dismissal) the teacher did not lose any interests that would be protected by the 14<sup>th</sup> amendment. </div>
** <div style="margin-left:1in;margin-right:0in;">The teacher did not have a legitimate claim of entitlement to the rehiring because his contract was for only a year and nothing more. </div>

<span style="color:#0000ff;">'''Perry v. Sinderman'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Implicit Entitlements, Implied K))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Professor challenged state university decision not to employ him for another year. K had been renewed for four years, after fourth year it was not renewed so sued claiming the failure to give him notice of reasons and to provide an opportunity for a hearing violated DP. </div>
** <div style="margin-left:1in;margin-right:0in;">Employment was not secured by a formal contractual tenure provision, there was an understanding fostered by the college administration. The college had a de facto tenure program, and that he had tenure under that program. Claimed he legit relied on that provision that had been in the college’s official faculty guide for many years. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''''':'' a formal contract of tenure would support a legitimate claim of entitlement, but it also recognized that “there may be an unwritten ‘common law’ in a particular university that certain employees shall have the equivalent of tenure. </div>
** <div style="margin-left:1in;margin-right:0in;">Implied contract right in long term employment with usual practice went beyond agreement, usual practices. </div>

'''Liberty '''

Liberty includes all of “those privileges long recognized…as essential to the orderly pursuit of happiness by free men” 
* <div style="margin-left:0.5in;margin-right:0in;">The right to engage in a common occupation in life - <span style="color:#0000ff;">''Meyer v. Nebraska''</span></div>
* <div style="margin-left:0.5in;margin-right:0in;">The government triggers DP protection when it denies or revokes a person’s license to engage in a profession – <span style="color:#0000ff;">''Gibson v. Berryhill''</span></div>

<span style="color:#0000ff;">'''Paul v. Davis'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Reputation Alone is not protected interest))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' In an effort to reduce shoplifting in the area during Christmas time, a couple of police departments dispersed a flyer with names and pictures of those who have been known for shoplifting in the past. One flyer names the group “active shoplifters.” One of the men on the list brought this action claiming that his designation as an “active shoplifter” deprived him of liberty protected by the 14<sup>th</sup> amendment. He claimed that this designation would inhibit him from entering business establishments and impair his future employment opportunities. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Reputation alone is NOT one of the liberty interests protected by DP</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Stigma Plus Test'''</u>- in order to have a liberty interest a person must have their reputation harmed PLUS a disability imposed (like loss of employment) </div>
** <div style="margin-left:1in;margin-right:0in;">There must be something lost, for example because of bad record, police officer could not get another job or he lost a job because of bad interest. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the shoplifting reputation was not a liberty interest protected by the 14<sup>th</sup> amendment</div>
** <div style="margin-left:1in;margin-right:0in;">Reputation is not a tangible interest that would be covered; a tangible interest would be something like employment. </div>



<span style="color:#0000ff;">'''Codd v. Velger'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Must have some Factual Dispute))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Velger claimed that he was wrongly dismissed from his position in a police department. He was dismissed without a hearing or a statement of reasons. His position was probationary, so he had no property interest in it, but he alleged that he was entitled to a hearing because of the “stigmatizing effect” of materials that were placed in his personnel file. He claimed that this material caused him to be fired at his subsequent job and had prevented him from finding other similar employment. The material contained a report that stated that Velger had put his revolver to his head in a suicide attempt during police training. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' In order for the court to mandate a hearing, there must be some factual dispute in question relating to the alleged deprivation of the protected interest (like employment)</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' Velger does not have a DP claim because there is no factual dispute at issue. There was no factual dispute between the employer and the discharged employee that had some significant bearing on the employee’s reputation. This is not such a case because Velger has not affirmatively asserted that the report of his apparent suicide attempt was false. </div>



<span style="color:#0000ff;">'''Cleveland Board of Education v. Loudermill'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': Law in Ohio that stated a civil servant can only be terminated for cause and allowed an administrative hearing (teacher). Lied on app because he was a felon. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' if a state statute gives you and a protected interest in your job, it cannot deny you the right without going through constitutional procedures. </div>

<span style="color:#0000ff;">'''Shands v. City of Kennett'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Four firemen were discharged by the city council when they asked a member of the city council to block the appointment of a new volunteer fireman requested by the Chief and instead appoint a friend of the four firemen. The letter stated their dismissal was for insubordination and misconduct. The four firemen appeared before the city council stating why they had done nothing wrong. The council held a closed-door session with witnesses and aid of counsel. The council found that the four firemen were justly dismissed because they tried to interfere with the hiring process. The council wrote a letter stating that they were dismissed for “department personnel matters.” The fireman brought suit claiming a deprivation of their liberty interest protected by the DPC when the Councilmen discussed their charged in the media and with the closed door session. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' An interest must rise to the ''level of stigma required by the Constitution'' to be considered a ''protected liberty interest'' under the DPC. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''''':'' the firemen do not have a DPC because the Councilman’s statements did not rise to a level of stigmatization that would be protected by the liberty interests of the DPC. </div>
** <div style="margin-left:1in;margin-right:0in;">The general allegation of misconduct in this case does not rise to a level of constitutional stigma. Usually the requisite stigma is found in cases were the employee is accused of dishonesty, immorality, criminality, racism or the like. </div>

'''What Hearing Procedure Must be Used?'''

<span style="color:#0000ff;">'''Goldberg v. Kelly'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((MUST have evidentiary hearing before losing welfare benefits))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Under the state system in effect, the welfare recipient was given notice of the proposal to terminate and the reasons therefor as well as an opportunity to respond in writing, before the termination took place. After termination, the recipient was entitled to a full-blown administrative hearing equivalent to what is provided under the APA, and if successful there, was entitled to back payments for the period after termination</div>
* <div style="margin-left:0.5in;margin-right:0in;">An evidentiary hearing must occur before the termination of one’s welfare benefits</div>
* <div style="margin-left:0.5in;margin-right:0in;">In addition, it <u>required procedures normally associate with highly formalized adjudication</u>:</div>
** <div style="margin-left:1in;margin-right:0in;">Timely and adequate notice detailing reasons for proposed termination</div>
** <div style="margin-left:1in;margin-right:0in;">An effective opportunity to defend (like cross examination, presenting witnesses and evidence)</div>
** <div style="margin-left:1in;margin-right:0in;">The right to be represented by counsel</div>
** <div style="margin-left:1in;margin-right:0in;">A decision based on the evidence</div>
** <div style="margin-left:1in;margin-right:0in;">Impartial Decision maker</div>
** <div style="margin-left:1in;margin-right:0in;">A statement explaining his decision and evidence relied upon. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' found post termination hearing inadequate. Welfare was the last safety net and termination deprives the recipient “of the very means by which to live while he waits.” </div>
** <div style="margin-left:1in;margin-right:0in;">Due process required an evidentiary hearing before termination. </div>
** <div style="margin-left:1in;margin-right:0in;">Required not only a pre-termination hearing but also one that included most of the procedures associated with highly formalized adjudication</div>



<span style="color:#0000ff;">'''Mathews v. Eldridge'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Evidentiary hearing NOT required after loss of disability benefits))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Eldridge received disability insurance benefits beginning in June 1968. In March 1972, Eldridge received a questionnaire form the state agency charged with monitoring his medical condition. The state agency received reports from physicians who had treated him and decided to terminate his disability benefits. The agency informed Eldridge by letter that his benefits would tentatively be terminated. This letter included a statement of reasons for the proposed termination and advised Eldridge that he may request reasonable time to submit additional information pertaining to his condition. In a written response, Eldridge disputed a characterization of his medical condition and indicated that the agency had enough evidence to establish his disability. The state agency made its final determination and notified Eldridge that his benefits would be terminated at the end of July 1972. The notification informed Eldridge that he would be able to seek reconsideration by the state agency within six months. Instead, Eldridge brought suit relying on Goldberg to allege his constitutional right to an evidentiary hearing. </div>
* <div style="margin-left:0.5in;margin-right:0in;">An evidentiary hearing is not required prior to the termination of disability benefits</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Due Process Factors (Three Part Test) </u>What hearing procedures must be used'''</div>
*# <div style="margin-left:1in;margin-right:0in;"><u>The magnitude of the private interest that will be affected by the official action</u></div>
*#* <div style="margin-left:1.5in;margin-right:0in;">AKA- how serious is the deprivation? </div>
*#** <div style="margin-left:2in;margin-right:0in;">''Court-'' the magnitude of the interest is the uninterrupted receipt of income pending the final administrative decision. Eligibility for disability benefits, unlike welfare benefits, is not based on need.</div>
*# <div style="margin-left:1in;margin-right:0in;"><u>The risk on an erroneous deprivation of such interest through the procedures used, and the probable value (if any) of additional or substitute procedural safeguards.</u></div>
*#* <div style="margin-left:1.5in;margin-right:0in;">AKA- what is the value of additional procedure?</div>
*#** <div style="margin-left:2in;margin-right:0in;">''Court-'' the risk of error is low because it is based on ''medical documentation.'' Physicians provide the evidence. </div>
*# <div style="margin-left:1in;margin-right:0in;"><u>The government’s interest </u>(including the function involved and the fiscal and administrative burdens that additional or substitute procedures would require)</div>
*#* <div style="margin-left:1.5in;margin-right:0in;">AKA- is there government and public interest? (is it costly?)</div>
*#** <div style="margin-left:2in;margin-right:0in;">''Court''-administrative burden, incremental cost resulting from increased number of hearings, and expense of providing benefits to ineligible recipients pending decision. Yes, would have to do it for everyone</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the present administrative procedures fully comport with Due Process, evidentiary hearing prior to termination was NOT required.</div>

'''Distinguishing between <span style="color:#0000ff;">''Goldberg ''</span>and <span style="color:#0000ff;">''Eldridge'''''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Eligibility for disability benefits, unlike welfare benefits, is not based on need</div>
* <div style="margin-left:0.5in;margin-right:0in;">The potential deprivation is generally likely to be less in Eldridge than Goldberg</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>The determination for disability income is based on medical documentation and is a lot easier of a decision than the determination of welfare benefits</u></div>
** <div style="margin-left:1in;margin-right:0in;">Ex) for the welfare benefits you may need witnesses and to check the credibility of documentation. </div>

<span style="color:#0000ff;">'''Board of Curators of the University of Missouri v. Horowitz'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Academic evaluation is not subject to DP))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' A student was consistently receiving poor evaluation for her clinical rotations in medical school. Faculty expressed dissatisfaction with her behavior (poor attendance and lack of concern for personal hygiene) and advanced to her final year in a probationary status. The Council decided to not allow her to graduate, and unless her performance improved, recommended her dismissal from the school. The student was reviewed by seven practicing physicians with whom she worked and additional faculty. The Council recommended she be dismissed and after the student appealed to the Dean, the Dean concurred to that decision. The student brought this action claiming that she was entitled to procedural protections of the 14<sup>th</sup> amendment and was deprived of a liberty interest. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' A seat to a Medical School program is not a property interest, thus a trial like hearing is not required</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the student was not deprived of her liberty interests. Due Process does not require any more procedure than what occurred here.</div>
** <div style="margin-left:1in;margin-right:0in;">The student never claimed a deprivation of a property interest, if she did, she would have to show that her sear at the Medical school was a property interest under state law.</div>
** <div style="margin-left:1in;margin-right:0in;">The procedures in this case were sufficient under the DPC. Requiring a trial like “hearing” would make it costly for the school and would destroy the effectiveness as part of the teaching process. Academic evaluations of students are more subjective and evaluative determinations</div>
** <div style="margin-left:1in;margin-right:0in;">This type of determination is different from disciplinary actions taken against students that require hearings. </div>

<span style="color:#0000ff;">'''Gabrilowitz v. Newman'''</span>-
* <div style="margin-left:0.5417in;margin-right:0in;">When a criminal case based on the same conduct giving rise to the disciplinary proceeding is pending in the courts, “the denial to the student of the right to have a lawyer of his own choice to consult with and advise during the disciplinary proceeding would deprive him of due process of law”</div>
<span style="color:#0000ff;">'''Osteen v. Henley'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Osteen curb stomped someone and then broke someone else’s face because they were making fun of someone’s girlfriend. At the hearing, he was not allowed to have a lawyer. The school suspended Osteen for two years. Osteen sued arguing that his expulsion constituted a deprivation of property without due process of law</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Issue:''' is there a right to counsel in student disciplinary proceeding?</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' No. To determine what process is due in a student disciplinary proceeding, courts must consider:</div>
** <div style="margin-left:1in;margin-right:0in;">The costs of the additional procedure sought – here, cost would be high</div>
** <div style="margin-left:1in;margin-right:0in;">The risk of error if it is withheld, and</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The right to counsel is withheld could be trivial. </div>
** <div style="margin-left:1in;margin-right:0in;">The consequences of error to the person seeking procedure. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">The expulsion is not so grave because he can still go back in two years. </div>

'''Neutral Decision Maker'''

A fundamental aspect of due process is a Neutral Decision maker. In an adjudication, if a decision maker is prejudiced or biased against or for a party, it will be a violation of the Constitution’s guarantee of DP. 

<span style="color:#0000ff;">'''Withrow v. Larkin'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The state of Wisconsin authorized its Examining Board to investigate individuals suspected of practicing medicine without a license or performing other acts of professional misconduct, and to temporally suspend a physician’s license if there was probable cause to suspect wrongdoing. The Board sent a notice to a physician that a contested hearing would be held to determine whether he had engaged in the prohibition act of performing abortions in his practice, and to decide whether his license would be temporarily suspended. Appellee moved from a restraining order against the contested hearing, the DC granted the motion and the Board appealed. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Test for Bias'''</u> → is the decision maker’s mind “''irrevocably closed''?”</div>
** <div style="margin-left:1in;margin-right:0in;">This can be shown through extrinsic evidence. This is usually only shown through public statements.</div>
** <div style="margin-left:1in;margin-right:0in;">Does decision maker have a pecuniary interest? Has he been target of personal abuse/criticism? </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' The Board stayed within the accepted bounds of DP, even with both investigative and adjudicatory powers. </div>

'''Judicial Review of Adjudication'''

Judicial review of an agency decision typically takes place in federal district court unless the agency’s mandate authorized another federal court for review. §706 specifies the grounds for judicial review. 
* <div style="margin-left:0.5in;margin-right:0in;">ALJ → board → court</div>

'''Formal Adjudication of FACTS → The Substantial Evidence Standard '''

§706(2)(E) provides that agency action is to be held unlawful if it is “unsupported by substantial evidence” in FORMAL rulemaking and adjudication. The substantial evidence test is a <u>highly deferential</u> test but it must be applied to the ''whole record on both sides''. 
* <div style="margin-left:0.5in;margin-right:0in;">''Substantial Evidence'' = enough evidence that the agency’s finding is not unreasonable</div>
** <div style="margin-left:1in;margin-right:0in;">Court ask whether a “reasonable mind might accept” a particular evidentiary record as “adequate” to support a conclusion. </div>

'''Substantial Evidence and the ALJs Credibility Findings'''

§557 states that an agency “has all the powers which it would have in making its decision on review” has been interpreted to give the agency the power of de novo review. Essentially meaning that the agency is not required to defer to the findings of the ALJ at all, which in turn, was also assumed by the courts. However, ''Universal Camera Corp. v. NLRB'' clarified that a reviewing court must review the ALJs decision because it was a part of the whole record. 
* <div style="margin-left:0.5in;margin-right:0in;">''Thus, the court must take the ALJ decision into account when assessing whether an agency used the substantial evidence for its findings and conclusions. ''</div>

'''Mixed Questions of Law and Fact'''
* <div style="margin-left:0.5in;margin-right:0in;">Fact = was a person fired because of union activity or because of poor work? No reference to statute needed</div>
* <div style="margin-left:0.5in;margin-right:0in;">Law = does a statute require the employer’s motivation for the discharge to be solely or only partially based on the employees’ union activity to make it illegal?</div>

The “substantial evidence” standard governs disputes concerning facts found by the agency. A different standard for questions of law exists. §706 authorizes a court to hold unlawful and set aside agency action that is unconstitutional, “in excess of statutory right,” or “otherwise not in accordance with law.”

<span style="color:#0000ff;">'''National Labor Relations Board v. Hearst'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' A union filed an unfair labor charge against a newspaper who refused to bargain collectively with the union representative of the “newsboys” who distributed newspapers. The newspaper refused to bargain with the union representative because they contended that the newsboys were not within the meaning of “employees” under the Wagner Act. The Act requires employers to bargain collectively with their “employees.” As Congress, did not define employee, the newspaper argued that the “common law definition” of employee should apply. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' If a Board’s determination involves both issues of law and fact, that determination will be accepted as long as it has “'''warrant on the record'''” (i.e. substantial evidence) '''and a reasonable basis in law'''. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Question of fact – does the record support the NLRB’s conclusions for the working conditions of newsboys (substantial evidence)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Question of law – under the terms of the NLRA, what is the definition of employee? (chevron) </div>
* <div style="margin-left:0.5in;margin-right:0in;">Mixed Questions of Law and Fact – are Newsboys EEs under the NLRA? (substantial evidence)</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' sustained the Board’s finding that newsboys are employees</div>
** <div style="margin-left:1in;margin-right:0in;">Congress did not intend the term “employee” under the Warner Act to be as narrow as the common-law definition of “employee.” Congress focused on the economic relationships in employment – which can include a broad range of individuals (such as independent contractors) </div>
** <div style="margin-left:1in;margin-right:0in;">The definition of “employee” should not be determined by the courts, but by the agency created by congress to administer the act. </div>
** <div style="margin-left:1in;margin-right:0in;">If the Board’s finding is supported by the record, it is not the courts function to substitute its own inferences of fact for the Boards. </div>

<span style="color:#0000ff;">'''Evening Star Newspaper Company v. Kemp'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Fact''': An employee for the Evening Star was killed while on the clock and his widow was awarded under the Longshoreman’s and Harbor Workers’ Compensation Act. The gun was owned by the employee. At the time of the shot it was in the hands of another employee. It appeared to be an accident. The handgun was carried for personal protection and for protection of the employer’s property. After an evidentiary hearing, and ALJ found for widow. This finding was affirmed by the Board. Evening Star appealed. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' The decision in this case had '''warrant in the record and a reasonable basis in the law''', and thus, was upheld. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''''':'' the decision should be upheld because the ALJ’s findings of fact/law was supported by substantial evidence in the record and was not inconsistent with the law. </div>
** <div style="margin-left:1in;margin-right:0in;">There is a strong legislative and judicial policy favoring awards in workmen’s compensation cases.</div>
** <div style="margin-left:1in;margin-right:0in;">If an employer gives employees “free time” while they are still on the clock, any accident resulting therefrom should be considered as sustained in the course and arising out of employment. This will hold true unless the activity is “totally unreasonable that it severs the employees’ connection with the employer”</div>
*** <div style="margin-left:1.5in;margin-right:0in;">Sever = the gun was carried for employment purposes and the injury occurred on the employer’s premises during work-time. The employee did not instigate the shot. Thus, the accident in this case does not work as a severance. </div>

<span style="color:#0000ff;">'''Durrah v. Washington Metropolitan Area Transit Authority'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((NO warrant in record or NO reasonable basis in law))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Durrah, a new employee of WMATA, was on a night shirt at Post No. Where he was responsible from monitoring all traffic entering or leaving the depot. At 4am, Durrah left Post No. 1 and purchased a soda from vending machine in the employees’ lounge on the premises. He slipped on a staircase on his return to the Post and has complained of a knee injury- seeking benefits under the Longshoremen’s and Harbor Workers’ Compensations Act. In contravention of WMATA’s instructions, Durrah did not report that he was leaving the Post and did not obtain a substitute to cover the post in his absence. An ALJ denied Durrah’s claim and the Board affirmed. Durrah appealed. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' It is not “necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ''obligations and conditions'' of the employment create the ''zone of special danger'' out of which the injury arose.”</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' reversed the Board’s decisions and remanded. The decision ''did not have warrant in the record'' or ''a reasonable basis in law. ''</div>
** <div style="margin-left:1in;margin-right:0in;">Durrah’s injury would have been unquestionably covered if it weren’t for the breaking of the work rule, but ''it was unclear by the ALJs finding just HOW the breaking of the work rule completely severed him from the service of his employer.'' The asserted violation did not place Durrah in the path of new risks, nor did it alter the time, place, and manner in which Durrah would have been injured if he would have complied. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">Question of Fact- he did not check out of the post. He was on WAMATA’s premises</div>
*** <div style="margin-left:1.5in;margin-right:0in;">Question of Law- does contravening the policies of employment necessarily mean that you are outside the scope of employment under the Act. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">Mixed Questions- did Durrah’s actions violated the Workers Compensation Act.</div>

'''Informal Adjudication → Arbitrary and Capricious Review. '''

When an agency engages in informal adjudication, §706(2)(F) allows a court to overturn an agency decision if it is “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” ''Courts require an agency to provide for adequate reasons explaining their decision.'' 
* <div style="margin-left:0.5in;margin-right:0in;">The APA requires agencies to “articulate a satisfactory explanation for its action including ‘a rational connection between the facts found and the choice made.’”</div>

Three types of defects that make agency decision look non-reasoned:
# <div style="margin-left:0.5in;margin-right:0in;">Irrational or implausible</div>
# <div style="margin-left:0.5in;margin-right:0in;">Adequate consideration to regulatory issues (<span style="color:#0000ff;">''State Farm''</span>)</div>
# <div style="margin-left:0.5in;margin-right:0in;">Agency fails to supply information for adequate information</div>

'''Three Step Process for Substantial Inquiry:'''
# <div style="margin-left:0.5in;margin-right:0in;">Did the party act within its scope of authority?</div>
# <div style="margin-left:0.5in;margin-right:0in;">Did the party make a choice that was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?”</div>
## <div style="margin-left:1in;margin-right:0in;">Was the decision based on the relevant factors or has there been a clear error or judgment?</div>
# <div style="margin-left:0.5in;margin-right:0in;">Did the party’s action follow the necessary procedural requirements?</div>

<span style="color:#0000ff;">'''Citizens to Preserve Overton Park v. Volpe'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': The Secretary of Transportation authorized the construction of a six-lane highway that went through Overton Park. the highway would sever the zoo from the rest of the park. Under statutes passed in 66 and 68, the Secretary was prohibited from authorizing the use of federal funds for highways through public parks if: a feasible and prudent alternative rough exists OR all possible planning takes place to minimize the harm. Private citizens and organizations brought suit. The approval of the construction for the highway was accompanied by a statement by the Secretary that did not address either of those requirements. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''A & C standard''' = operates as an incentive to make agencies to provide a written explanation of decision so something is available to the court when reviewing. </div>
** <div style="margin-left:1in;margin-right:0in;">A court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. </div>
** <div style="margin-left:1in;margin-right:0in;">This case initiated the concept of “record” for an informal agency proceeding</div>
* <div style="margin-left:0.5in;margin-right:0in;">§706(2)(A)- did the secretary reasonably believe that no feasible or alternative route existed and minimized harm as much as possible. </div>
** <div style="margin-left:1in;margin-right:0in;">''To judge the secretary’s decision, there must be some type of “record” on which he made his decision'' (there wasn’t in this case)</div>
* <div style="margin-left:0.5in;margin-right:0in;">In this case, the reviewing court must be able to find that the Secretary reasonably believed that no feasible alternative existed and that harm was minimized as much as possible.</div>
** <div style="margin-left:1in;margin-right:0in;">The absence of factual findings does not necessarily require the case be remanded </div>

Record = the court will look at the information that the agency actually considered in making the decision. This is typically composed of ''Federal Register notices for the proposed and final rule, comments submitted, and any studies or data related or used by the agency'' (this is what they will look at when there is no final record)

==CHOICE OF PROCEDURES AND NONLEGISLATIVE RULES==

'''Option # 1: Adjudication '''

{| style="border-spacing:0;width:7.6819in;"
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
| align=center| '''Advantages '''
| align=center| '''Disadvantages'''
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
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* <div style="margin-left:0.5in;margin-right:0in;">Case by case manner allows for the agency to address specialized problems which arise</div>
* <div style="margin-left:0.5in;margin-right:0in;">Not ever principle needed for effective administration should be turned into a rule</div>
* <div style="margin-left:0.5in;margin-right:0in;">Problems arise that an agency easily could not foresee- and there cannot be resolved by a general rule</div>
* <div style="margin-left:0.5in;margin-right:0in;">The agency may not have enough experience in an area to create a rule</div>
* <div style="margin-left:0.5in;margin-right:0in;">The problems may be so wide and varied that it would be impossible to make a rule</div>

|| 
* <div style="margin-left:0.5in;margin-right:0in;">The party may not have any warning if the agency is adopting a new policy through adjudication (i.e. rulemaking would be fairer because it has a prospective effect and thus gives parties more notice)</div>
* <div style="margin-left:0.5in;margin-right:0in;">The cost of the party to litigate the case</div>
* <div style="margin-left:0.5in;margin-right:0in;">Rulemaking has a broader effect</div>
* <div style="margin-left:0.5in;margin-right:0in;">Rulemaking involves a lot of input by interested parties</div>
* <div style="margin-left:0.5in;margin-right:0in;">Rulemaking allows for bright line procedures</div>

|-
|}

'''Legal Constraints '''

<span style="color:#0000ff;">'''National Labor Relations Board v. Bell Aerospace Company Division of Textron, Inc. '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' A union sought to unionize “buyers” at Bell’s plant. There was an issue over whether “buyers’ were “managerial employees” and thus not subject to the NLRA. In the adjudication, the NLRB reversed its prior policy that “managerial employees” were exempt from the Act and found that only managerial employees with labor management responsibilities were exempt. The Supreme Court reversed the Board’s decision and held that the NLRB’s original policy of exempting all managerial employees was correct. The issue of whether the buyers were managerial employees still existed and the case was remanded. The court of appeals held that the decision of whether a buyer is a managerial employee could only be made via rulemaking. the Supreme Court disagreed. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' if an agency had both rulemaking and adjudicatory authority, the decision to use rulemaking or adjudication ''lies primarily with the informed discretion of that agency''. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the NLRA’s choice to use adjudication rather than rulemaking was valid.</div>
** <div style="margin-left:1in;margin-right:0in;">The agency can essentially promulgate a rule through an adjudicative proceeding (<span style="color:#0000ff;">''SEC v. Chenery Corp.)''</span></div>
** <div style="margin-left:1in;margin-right:0in;">Although there may be situations where the Board’s reliance on an adjudication would amount to an abuse of discretion or a violation of the Act, this is not the case.</div>
** <div style="margin-left:1in;margin-right:0in;">'''Abuse of discretion = new liability, or fines or damages or reliance '''</div>

<span style="color:#0000ff;">'''Retail Wholesale and Department Store Union v. National Labor Relations Board'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The Board issued a new rule that specified that former economic strikers had a right (until they obtained “other regular and substantial equivalent employment”) to reinstatement when jobs opened up (i.e. when permanent replacements left). This was a drastic change from the old rule, which did not give an economic striker any entitlement to reinstatement. The Board held that an employer had committed an unfair labor practice when it failed to hire workers who were permanently replaced during a strike to fill new job openings. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Issue:''' whether the new rule could have retroactive effect. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' retroactive force to an agency policy will be denied if the court determines that inequality of retroactive application is not balanced by sufficient, significant statutory interests.</div>
** <div style="margin-left:1in;margin-right:0in;"><u>'''Balancing Test:'''</u></div>
*** <div style="margin-left:1.5in;margin-right:0in;">Whether the particular case is one of ''first impression''</div>
*** <div style="margin-left:1.5in;margin-right:0in;">Whether the new rule represents an ''abrupt departure from well-established practice'' or merely attempts to ''fill a void'' in an unsettled area of law</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The extent to which the party has relied on the former rule</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The ''degree of the burden'' which a retroactive order imposes on a party</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The ''statutory interest'' in applying a new rule despite the reliance of a party on the old standard. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' declined to give the retroactive effect to the policy. Retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by the law. </div>

<div style="margin-left:0.25in;margin-right:0in;"></div>

'''Option #2: Rulemaking'''

Rulemaking can be enforced through adjudication. Congress alone can give an agency the authority to make legislative rules. Enforcement of a rule is distinguished from adjudication because a person does not have the ability to call on witnesses in a rule enforcement. * <div style="margin-left:0.5in;margin-right:0in;">An agency can curtail a party’s right to full adjudication even if Congress granted that right. </div>

'''Retroactive Rulemaking''' → agencies need an express grant by Congress to have the authority to make retroactive rules. 
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Addison v. Holly Hill Fruit Products''</span>- the particular regulatory definition of “area of production.” for the purpose of exempting certain food processors from the wage and hour laws of the Fair Labor Standards Act was beyond the Administrators statutory authority</div>
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Bowen v. Georgetown University Hospital''</span>- the Secretary promulgated a new rule retroactively, in effect, making it as if the original rule had never been set aside by the courts. The rule was struck down. </div>

'''Ambiguous Rules''' → an agency can adopt rules that may be ambiguous or unclear. If a party brings an enforcement action in court, the court will interpret the meaning and may give deference to the agency. However, if the enforcement occurs in agency adjudication, the agency will interpret it. 

<span style="color:#0000ff;">'''General Electric Company v. U.S. Environmental Protection Agency'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' EPA fined GE because it had violated a regulation based on EPA’s interpretation. Initially GE complied with the disposal requirements of the EPA regulation, but in 87 GE changed its procedures. GE and EPA essentially disagreed about whether the regulations require incineration of the disposed solvent, not just distillation. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' if an agency interpretation is not ”''ascertainably certain''” from the regulations, the regulated party will not be liable for any violations. </div>
** <div style="margin-left:1in;margin-right:0in;"><u>'''Ascertainable Certainty Test'''</u> = has the regulated party received, or should have received, notice of the agency’s interpretation by reading the regulations? If the party has an “ascertainable certainty” of what the agency expects of regulated parties, the party has been fairly notified. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the agency’s interpretation is not “ascertainably certain” from the regulations, thus GE’s liability and fine are set aside. </div>
** <div style="margin-left:1in;margin-right:0in;">The EPA interpretation is permissible, but did not provide GE with fair warning/notice, an agency must provide pre-enforcement warning of interpretation.</div>
** <div style="margin-left:1in;margin-right:0in;">The regulations call for “distillation.” The EPA interpreted this to mean “disposal,” this strays far from the common understanding of the word and is not ‘reasonably comprehendible to people of good faith.”</div>
** <div style="margin-left:1in;margin-right:0in;">The regulations also apparently permit distillation and do not bar it. </div>

'''Option #3: Nonlegislative Rules'''

Nonlegislative Rules- an agency pronouncement that advises the public of the agency’s view on an issue but it is NOT legally binding on third parties, thus are exempt from the requirement of notice and comment and an agency does not need the express authority from Congress to enact them. 
* <div style="margin-left:0.5in;margin-right:0in;">Legislative Rules- binding effect and require a notice and comment period. </div>

'''§553 identifies two types of nonlegislative rules:'''
# <div style="margin-left:0.5in;margin-right:0in;">'''Interpretive '''– a statement issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers</div>
## <div style="margin-left:1in;margin-right:0in;">Purpose: compliance within the agency AND advise the public, prospectively, about agency’s intention </div>
# <div style="margin-left:0.5in;margin-right:0in;">'''General statements of policy'''- a statement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power. </div>

{| style="border-spacing:0;width:7.65in;"
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
| align=center| '''Advantages'''
| align=center| '''Disadvantages'''
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
|| 
* <div style="margin-left:0.5in;margin-right:0in;">Easy means of informing the public as to agency’s views and intentions</div>
* <div style="margin-left:0.5in;margin-right:0in;">Can be used as a management tool to issue guidance to agency employees- there can be nonlegislative rules for internal agency purposes</div>
* <div style="margin-left:0.5in;margin-right:0in;">Regulated entities typically comply with nonlegislative rules even though they are not legally binding</div>
* <div style="margin-left:0.5in;margin-right:0in;">The regulated community cannot claim “surprise”</div>

|| 
* <div style="margin-left:0.5in;margin-right:0in;">Adopted without public input. It takes too much time and expenses to challenge a nonlegislative rule</div>
* <div style="margin-left:0.5in;margin-right:0in;">No opportunity to contest a rule (in some cases)</div>
* <div style="margin-left:0.5in;margin-right:0in;">An agency may treat a nonlegislative rule as binding on the public. This can be challenged in courts.</div>
* <div style="margin-left:0.5in;margin-right:0in;">Regulated agencies can be adversely affected when they follow an agency interpretation, and that interpretation is remanded or changed. </div>

|-
|}

<div style="text-align:center;">FOIA Requirement to publish nonlegislative rules in federal register</div>

'''Distinguishing Nonlegislative from Legislative Rules'''
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Binding Effect Test '''</u>→ does the statement of agency impose a ''new duty'' OR does it merely announce the ''intention to impose a new duty'' at a future time? (must vs. should)</div>

<span style="color:#0000ff;">'''American Hospital Association v. Bowen'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Retroactive Rulemaking))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' HHS implemented a system of “peer review” of Medicare outlays without undertaking notice and comment rulemaking. HHS issued a series of directives and transmittals governing the PRO program. Included was a Request for Proposals (RFP) that told would-be PROs what review procedures their proposals must address, and what provisions their bids must contain.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' if a statement does not have a binding effect, it will be considered a nonlegislative rule.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the RFP is a nonbinding statement of policy exempt from notice and comment requirements</div>
** <div style="margin-left:1in;margin-right:0in;">The RFP binds neither the agency nor the PROs to whom it is sent. It simply establishes “taking points” and provides a foundation on which the agency and the would-be PRO can negotiate</div>
** <div style="margin-left:1in;margin-right:0in;">The RFP neither has a “present effect” nor does it prevent future exercises of discretion on the part of agency decision making</div>
** <div style="margin-left:1in;margin-right:0in;">Final PRO contracts have been known to differ from the RFP</div>

'''Policy Statements''' → issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power in subsequent adjudication or rulemaking. Don’t have a present effect. Does not impose a new legal duty* <div style="margin-left:0.5in;margin-right:0in;">DOES NOT purport to interpret an existing duty in a regulation but rather announces that the agency intends to adopt new policies in the future. </div>

'''Interpretive Rules''' → clarify the nature of the duties previously established by an agency’s statutory mandate or by a regulation promulgated by the agency. In an interpretive rule, an agency announces how an existing law or statute is binding on those who are subject to it. Does not impose new legal duty
* <div style="margin-left:0.5in;margin-right:0in;">An agency can enforce interpretive rules ONLY through adjudication or rulemaking</div>
* <div style="margin-left:0.5in;margin-right:0in;">If Congress HAS NOT granted an agency rulemaking power, and rule is issued by the agency is necessarily interpretative </div>
* <div style="margin-left:0.5in;margin-right:0in;">If Congress HAS granted an agency rulemaking power, look to:</div>
** <div style="margin-left:1in;margin-right:0in;">The agency’s ''characterization of its actions''</div>
** <div style="margin-left:1in;margin-right:0in;">The ''source of the duty a party is obligated to obey'' (look to the binding effect test)</div>

<span style="color:#0000ff;">'''Metropolitan School District v. Davila'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' interpretive rules don’t create a new duty, but clarifies and existing rule (must be in statute or regulation that has been promulgated via notice and comment)</div>



<span style="color:#0000ff;">'''American Mining Congress v. Mine Safety & Health Administration'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' An agency issued a three Program Policy Letters (PPLs) that purported to interpret when x-ray results constituted a diagnosis of silicosis or one of the other pneumoconiosis. The letters noted that certain x-ray readings qualified as “diagnoses” of lung disease within the meaning of agency reporting regulations. However, these PPLs were issued without notice and comment requirements. Nor was it published in the Federal Register.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the policy letter was an interpretive rule</div>
** <div style="margin-left:1in;margin-right:0in;">The Part 50 regulations themselves require the reporting, not the PPL. There is no legislative gap that required the PPL as a predicate. </div>
** <div style="margin-left:1in;margin-right:0in;">The agency did not mean to act legislatively. </div>

'''Legal Protection of Reliance on Nonlegislative Rules'''

<span style="color:#0000ff;">'''Perez v. Mortgage Brokers Ass’n'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Procedural argument))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Whether mortgage loan officers were exempt from overtime hours. Change it over and over again via an interpretive rule that they could or could not. Mortgage industry sued and challenges newest finding, wanting notice and comment (even though interpretive rules don’t need it)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Argument for reliance – interpretive rules that amend earlier IR that generate newer rules, and there is reliance. </div>
** <div style="margin-left:1in;margin-right:0in;">It is essentially amending the regulation because the ambiguity now means what the interpretive rule is. Essentially becomes part of the regulation and that regulation needs to be amended via rulemaking with notice and comment. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Concurrence – shouldn’t pretend notice and comment requirement is somehow dispensable. Regulated entities are subject to an ever greater unfairness. </div>
** <div style="margin-left:1in;margin-right:0in;">Can’t use notice and comment for more favorable record for arbitrary and capricious </div>
** <div style="margin-left:1in;margin-right:0in;">She can wait and be the poster child for enforcement </div>

<span style="color:#0000ff;">'''Heckler v. Community Health Service'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' the Medicare program allows for the reimbursement of providers of heath care services rendered to Medicare beneficiaries. The interim payments that the providers receive are not always correct so Congress has authorized the Secretary to make retroactive adjustments to reimbursements that are inadequate or excessive. Some providers elect to receive the reimbursement through a fiscal intermediary. Without obtaining guidance by the Department of Health and Human Services, as was required, the Travelers Cos. (fiscal intermediary) overpaid Community Health services around $71, 480. Travelers, after three years of providing reimbursements, decided to submit a formal request to the Department for instructions. This is when Travelers realized they had paid Community Health Services certain reimbursements that they should not have. The Court of Appeals found that the government may be estopped from collecting the overpayment because of the “affirmative misconduct” of its agents and the Travelers erroneous advice coupled with its failure to seek advice from DHHS. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' estoppel cannot be used. The traditional elements of estoppel are not present in this case (traditionally) has not applied to government action. </div>
** <div style="margin-left:1in;margin-right:0in;">The health care provider did not lose any rights, but merely as induced to do something that could be corrected at a later time. Although the provider the provider will be adversely effect, there was no finding of the extend to the effect of having to make the repayment. </div>
** <div style="margin-left:1in;margin-right:0in;">As a participant in the Medicare program, the provider had a duty to familiarize itself with the legal requirements for cost reimbursement. </div>
** <div style="margin-left:1in;margin-right:0in;">The provider only received oral advice from Travelers, written evidence is required. </div>
** <div style="margin-left:1in;margin-right:0in;">The provider was put on ample notice of the care with which its costs reports must be prepared, yet the provider prepared these statements based on the oral advice of Travelers. This is not the kind of reliance that would give rise to an estoppel against a private party. </div>

<span style="color:#0000ff;">'''Office of Personnel Management v. Richmond'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Charles Richmond sought advice from a federal employee and received erroneous information that permitted him to receive more than was permitted by the eligibility requirements of the relevant statute. Richmond lost six months of benefits months of benefits because of this erroneous advice. Richmond argues that the erroneous and unauthorized advice of the employee should give rise to equitable estoppel against the government, despite the fact that the payments would be made contrary to statute. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' estoppel may not be applied to the government in an action where a government employee gave wrongful advice to a citizen, and that advise disadvantaged the citizen, but if estoppel were enforced, the government would be forced to take an action not authorized by law. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' The Federal government may not make payments not authorized by statute regardless of the advice given by a government employee to a benefits claimant. </div>
** <div style="margin-left:1in;margin-right:0in;">There may be a case where estoppel can be applied to government action…but this is not one. </div>
** <div style="margin-left:1in;margin-right:0in;">The operation of estoppel against the government in the context of payment of money from the treasury could render the Appropriations Clause useless – this Clause provides that no payments can be made by the treasury unless authorized by statute. </div>
** <div style="margin-left:1in;margin-right:0in;">By allowing estoppel in cases where an employee misadvised a citizen, this control of public funds would be given to the executive. Congress has always been in charge of government funds. </div>

'''Judicial Deference and Agency Choice of Procedures''' → will a court defer to agency’s position?

'''Interpreting from Interpretive Rule to Statute use these '''(interpreting own agency)

<span style="color:#0000ff;">'''Christensen v. Harris County'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Agency interpreting their own regulation</div>

* <div style="margin-left:0.5in;margin-right:0in;">Before there was Chevron, <span style="color:#0000ff;">''Skidmore''</span> looked at what agency said and respect that, but not given deference. This became the default so that anything that is not Chevron is here. </div>
** <div style="margin-left:1in;margin-right:0in;">AKA- agency action gets respect but NOT deference</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Whether agency action in question used APA procedures''</div>
** <div style="margin-left:1in;margin-right:0in;">Clarification based on procedures agency uses when they create something binding, then they apply the deference.</div>
** <div style="margin-left:1in;margin-right:0in;">If it didn’t go through APA procedures and thus not binding, that’s when we go through this one. </div>

<span style="color:#0000ff;">'''United States v. Mead Corporation'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' matters for tariff is planners are considered “bound diaries” or “regular notebook” because diaries are subject to a different import tax. Mead had been treating them like regular notebook but others say they are bound and need to pay more on importing them. </div>
* <div style="margin-left:0.5in;margin-right:0in;">This was not meant to be policy making. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' takes what used to be a one factor test and turns it into a two-factor test:</div>

# <div style="margin-left:1in;margin-right:0in;">APA procedures, if used, gives ride to deference (<span style="color:#0000ff;">''Chevron''</span>); OR</div>
# <div style="margin-left:1in;margin-right:0in;">Other ways of finding Congress’s intent to be binding (doesn’t apply here though) </div>
## <div style="margin-left:1.5in;margin-right:0in;">Any evidence of congressional intent</div>

<span style="color:#0000ff;">'''Barnhart v. Walton'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Did not go through notice and comment (not binding)</div>
* <div style="margin-left:0.5in;margin-right:0in;">Adds to the already existing list:</div>
** <div style="margin-left:1in;margin-right:0in;">APA procedures → chevron</div>
** <div style="margin-left:1in;margin-right:0in;">Congress intent </div>
*** <div style="margin-left:1.5in;margin-right:0in;">Long standing policy interpretation – congress could have override it if they wanted to</div>
*** <div style="margin-left:1.5in;margin-right:0in;">If there had been intervening statutory amendments- this was even on Congress’s radar and they didn’t clarify it </div>
*** <div style="margin-left:1.5in;margin-right:0in;">The interstitial nature of the policy question- policy interpretation in the gray area, around things that have not been defined.</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The related expertise of the agency</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The importance of the question at issue</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The complexity of that issue</div>
*** <div style="margin-left:1.5in;margin-right:0in;">The careful consideration. </div>

<nowiki>** on exam, do analysis of all three. If you can apply the factors, would want Chevron deference. Would want to argue that the court should extend deference to agency any way possible.</nowiki>
* <div style="margin-left:0.5in;margin-right:0in;">ex) transgender bathrooms, just want to be able to use the bathroom, don’t care if the agency “wins”</div>

'''Interpreting from Interpretive Rule to Regulation''' = <span style="color:#0000ff;">''Auer''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Use when interpreting its own ambiguous interpretation to a regulation</div>
** <div style="margin-left:1in;margin-right:0in;">When it is ambiguous and broad, when the statute says one thing and the interpretation says something completely different. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Outer limit – when the regulation is parroting the statute, then agencies would always get deference. </div>
** <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''Gonzalez''</span>: physician assisted suicide, “legitimate medical purpose,” court says that the statute and regulation said the same thing. Thus, no deference. </div>
* <div style="margin-left:0.5in;margin-right:0in;">See chart</div>

'''Interpreting from Regulation to Statute''' = <span style="color:#0000ff;">''Chevron''</span> (binding) 

Why would court be willing to defer to agency interpretation of its own interpretation?
* <div style="margin-left:0.5in;margin-right:0in;">They are the best source because of their expertise, they understand the ambiguity</div>

==REVIEWABILITY==

'''Cause of Action'''

The Plaintiff must state a cause of action- is the plaintiff citing a judicially enforceable right? (i.e. statute, constitution). If the matter is not covered by statute, the APA provides a cause of action for anyone legally harmed by agency action under '''§702 = '''''requires that a person has suffered a legal wrong or has been adversely affected''

To successfully assert a cause of action under the APA, a plaintiff must meet five requirements established by the APA. The Government must raise any objections to the adequacy of the plaintiff’s satisfaction of the APA’s cause of action requirements or waive them. 
# <div style="margin-left:0.5in;margin-right:0in;">The appeal must be one that is <u>not excluded from review</u>'' ''either by </div>
## <div style="margin-left:1in;margin-right:0in;">Statute; or</div>
## <div style="margin-left:1in;margin-right:0in;">The agency action is committed to agency deference by law</div>
# <div style="margin-left:0.5in;margin-right:0in;">The agency must have performed an “<u>agency action”</u> </div>
# <div style="margin-left:0.5in;margin-right:0in;">§702 cause of action is limited to persons suffering “<u>legal wrong</u>” or those “<u>adversely affected</u> or aggrieved…within the meaning of a relevant statute.”</div>
## <div style="margin-left:1in;margin-right:0in;">Courts refer to the zone of interests’ requirement as an aspect of standing. </div>
# <div style="margin-left:0.5in;margin-right:0in;">§704 provides that only agency action specifically reviewable by statute or “<u>final agency action for which there is no adequate remedy in court</u>” is reviewability in a court under the APA. </div>
# <div style="margin-left:0.5in;margin-right:0in;"><u>Exhaustion of remedies</u>- §704 also states that an agency action is final for purposes of judicial review even if a person has not appealed within the agency, unless the agency by rule requires such an appeal and stays its action pending that appeal, in which case the action would be final only after the conclusion. </div>

''Adverse Affect'' = defendant must pass the “zone of interest” test: that his injury falls within the zone of interests sought to be protected by the statutory provision that forms the legal basis of his complaint.
* <div style="margin-left:0.5in;margin-right:0in;">If the plaintiff’s suit will serve the interest of the statute, it is within the zone of interest, even if the plaintiff’s motives were not contemplated by Congress</div>
* <div style="margin-left:0.5in;margin-right:0in;">When a person is directly being regulated, he is always within the zone of interest. </div>

'''Standing'''

Standing is an element of jurisdiction. The doctrine of standing comes from Article III’s statement that the judicial power of the United States extends to “cases and controversies.” It focuses on whether the person bringing the lawsuit is an appropriate person to bring the suit. It has to be a plaintiff who has a stake in the litigation.
* <div style="margin-left:0.5in;margin-right:0in;">If the connection between the plaintiff and the lawsuit is not sufficient, the court has no jurisdiction, because the lawsuit is not considered a “case” or “controversy” </div>
* <div style="margin-left:0.5in;margin-right:0in;">Have to have standing for EACH count of complaint to get into court. </div>

'''Basic Constitutional Test for Standing'''

Has the plaintiff suffered an injury (or is the plaintiff about to suffer an injury) caused (or about to be caused) by the alleged illegal action, and would a favorable court decision remedy (or avoid) that injury?

'''Injury in Fact''' → this will satisfy the standing requirement. If government action or inaction injures a third party in some real fashion, then the person has suffered a sufficient injury for standing purposes. An invasion of legally protected interest which is concrete and particularized (must affect the plaintiff in a personal and individual way) AND actual or imminent, not conjectural or hypothetical (<span style="color:#0000ff;">''Lujan''</span>).
* <div style="margin-left:0.5in;margin-right:0in;"><u>Generalized Grievances</u>- ideological or theoretical injury rather than actual, particularized injuries, will not satisfy standing. Thus, a citizen is not deemed injured simply because the government acts unlawfully and the person is upset with that.</div>
** <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''Sierra Club v. Morton''</span>- SC held that the Sierra Club did not suffer injury in fact from degradation of the environment solely by reason of being an organization interested in the environment. However, the Court allowed that ''injury to a person’s environmental, aesthetic, or recreational enjoyment of a place could qualify as injury in fact. ''</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Associational or Representational Standing</u>- an association (like a public interest group or environmental group) can sue in its own name on behalf of its members if: (1) one of its members would have standing to bring the action, (2) the lawsuit relates to the purposes of the organization, and (3) neither the claim asserted nor the relief requested requires participation of individual members. </div>

<div style="margin-left:0.5in;margin-right:0in;"></div>

'''Causation and Redressability''' → the injury must be a result of government action and a favorable court decision would remedy that injury. Injury caused by agency action redressable by relief that the court can provide. 
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Simon v. EKWRO''</span>- welfare rights organization challenged IRS regulation that reduced the amount of free medical care that hospitals had to provide in order to qualify as tax exempt charitable institutions. Court said causation and redressability were “purely speculative.” </div>

'''Prudential Requirements''' → the plaintiff cannot assert the rights of third persons. APA §702 delimits this prudential requirement by granting a COA to a potential plaintiff who is claiming the rights of a third person- all that is required under this section is that the plaintiff is suffering a “legal wrong” because of the agency action. 
* <div style="margin-left:0.5in;margin-right:0in;">A “legal wrong” in the context of the APA means an action by the government that interferes with a person’s constitutional, statutory, or common law rights.</div>
* <div style="margin-left:0.5in;margin-right:0in;"><span style="color:#0000ff;">''Tileston v. Ullman-''</span> court held that a physician did not have standing to assert that a state law that prohibited the prescription of contraceptives violated the constitutional rights of his patients. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Example''''':''' If OSHA adopted a regulation prohibiting employers from employing women in certain kinds of jobs, an employer could challenge that regulation as denying equal protection of the laws to women employees. The employer would be asserting the rights of third persons – the right of women to equal protection. But the employer has a cause of action under §702 to make this argument because the employer is suffering a “legal wrong” because of agency action. OSHA’s action interfered with the employer’s freedom to contract. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Exception''': the court will permit associations to represent their members under the doctrine of “associational standing” </div>

'''Statutory Grant of Jurisdiction''' → even if the plaintiff has standing, there must still be a statutory grant of power. For administrative law, this is typically not an issue. The APA itself does not grant jurisdiction. 

'''Standing in the States''' → the constitutional limitation of “cases and controversies” only applies to federal judicial power (and hence, administrative law) but does not apply to the states. Most states have their own rules of standing. 

<span style="color:#0000ff;">'''Lujan v. Defenders of Wildlife'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The Endangered Species Act was initially read by the Secretary of the Interior to protect species in foreign countries. Upon further review, the Secretary re-interpreted the Act to only protect species in the United States. Thus, the ESA was held to be inapplicable to the federal funding of projects in foreign nations. The plaintiffs, organizations dedicated to wildlife conservation, filed an action against the Secretary seeking an injunction requiring the Secretary to reinstate the initial interpretation of the ESA. Three Theories of Harm:</div>
** <div style="margin-left:1in;margin-right:0in;">Ecosystem nexus (NO HARM)- one member claimed she visited the habitat of the Nile crocodile, and that the rehabilitation of a dam threatened to destroy the habitat. She wanted to return one day.</div>
** <div style="margin-left:1in;margin-right:0in;">Animal nexus (NO HARM)- another member claimed that they wanted to observe the endangered species one day again.</div>
** <div style="margin-left:1in;margin-right:0in;">Vocational nexus- maybe harm</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Congress does not have the unlimited power to confer standing on individuals who do not meet the constitutional requirements of injury-in-fact, causal connection, and redressability. </div>
** <div style="margin-left:1in;margin-right:0in;">A speculative injury does not qualify as an injury in fact (concrete, legally protected interest and actual/imminent). A plaintiff must allege that the government acted illegally, causing an injury which constitutional law will recognize, and asking for appropriate redress for that injury. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' maybe if the plaintiffs had purchased tickets to visit the area at a definite point in the future. Otherwise their harm is just too speculative, no concrete plans to go back. </div>

'''The Implications of Lujan'''

Before Lujan, Congress had the unlimited power to create standing even for insufficient injuries. Congress could confer standing by defining injuries and articulating chains of causation that would give rise to a case or controversy where none existed before by statute. After Lujan, Congress does not have the unlimited power to confer standing on individuals who do not meet the constitutional requirements of injury-in-fact, casual connection, and redressability. There are certain types of injuries that are too insufficient to allow Congress to create standing. 

<span style="color:#0000ff;">'''Massachusetts v. Environmental Protection Agency'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Outlier case that allows a state to have standing))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' 12 states and several cities of the US brought suit against the EPA to force that federal agency to regulate carbon dioxide and other GHGs as pollutants. §202(a)(1) of the CAA requires the Administrator of the EPA to set emission standards for “any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In 2003, the EPA made two determinations: (1) the EPA lacked authority under the CAA to regulate carbon dioxide and other GHGs for climate change purposes; and (2) even if the EPA did have such authority, it would decline to set GHG emissions standards for vehicles. </div>
** <div style="margin-left:1in;margin-right:0in;">''MA argued:'' it was injured because increased GHG emissions induced global warming; global warming results in sea level rise; and MA owns coastal land that is being inundated by this sea level rise. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the petitioners have standing. The current rationale for not regulating is inadequate and required the agency to articulate a reasonable basis in order to avoid regulation. MA was suffering an immediate, particularized harm caused by EPA’s failure to act and that EPA’s action would at least alleviate that harm- the normal standard for assessing standing. </div>
** <div style="margin-left:1in;margin-right:0in;">This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity, the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. </div>
** <div style="margin-left:1in;margin-right:0in;">The CAA gives the EPA the authority to regulate tailpipe emissions of GHGs. GHGs fit well within the CAA’s capacious definition of air pollutant. </div>
** <div style="margin-left:1in;margin-right:0in;">Remanded case to EPA, requiring the agency to review its contention that it has discretion in regulating carbon dioxide and other GHGs. </div>

<span style="color:#0000ff;">'''Summers v. Earth Island Institute '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': a statute required the United States Forest Service to provide notice and an opportunity to comment before the Service made timber sales. The Forest Service nevertheless adopted a rule that provided that it would not provide notice and an opportunity to comment for certain types of timber sales. P argued that the absence of notice and comment has created an injury to them. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' violations of procedures designed to protect or benefit members of the public are not injuries for purposes of standing even to those members of the public who wish to utilize those procedures. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' persons who wished to comment on such types of timber sales were held not to be injured for standing purposes by being precluded from commenting. </div>
** <div style="margin-left:1in;margin-right:0in;">Even in notice and comment, unless comment affects something that is specific and ongoing, the mere fact you didn’t get notice and comment itself is not enough.</div>
** <div style="margin-left:1in;margin-right:0in;">The regulations under challenge neither require nor forbid any action on the part of the respondents. They only govern the conduct of FS officials. The regulation must actually affect the plaintiffs for them to have standing. </div>
** <div style="margin-left:1in;margin-right:0in;">There is no concrete or imminent harm here, thus no injury in fact. One of the more specific cases were already settled and remedied…a party cannot bring suit after their harm has been legitimately remedied. </div>

<span style="color:#0000ff;">'''Monsanto Co. v. Geertson Seed Farm'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((possibility of injury is enough))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': The Animal and Plant Health Inspection Service deregulated certain genetically engineered alfalfa plants. A number of organic alfalfa farmers, Geertson Seed Farms, among other parties, brought suit claiming that the APHIS decision violated NEPA. The plaintiffs claimed that because of the ruling, they would have to incur significant costs to test their plants for contamination. They also claim that the ruling would require them to incur costs to decrease the likelihood that their plants were infected. Monsanto argued that the plaintiffs lacked standing. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' to establish standing, a party must establish that its injury is concrete, fairly traceable to the challenged action, and redressable. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''': plaintiffs have alleged injury sufficiently concrete to standing. The plaintiffs showed that there is a “substantial risk” that the deregulation will result in their alfalfa plants being contaminated. Given that risk, and the fact that the plaintiffs market and sell organic alfalfa, the harm to the plaintiffs is that they are forced, at a significant cost, to take certain measures to ensure that their plants are not contaminated before they are marketed and sold. </div>
** <div style="margin-left:1in;margin-right:0in;">Because of the sheer risk of contamination, the plaintiffs will incur these costs whether or not their plants are affected. This is sufficient to establish concrete injury. </div>



<span style="color:#0000ff;">'''Clapper v. Amnesty International USA'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Threatened injury must be certainly impending for injury in fact))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The Foreign Intelligence Surveillance Act authorized the US government to conduct surveillance on non-US citizens that were outside the US Amnesty International USA. Plaintiffs are lawyers, journalists, and human rights researchers, among other things, who do work that often has them communicating with individuals abroad that the plaintiffs claimed are likely to be subject to surveillance under FISA. The plaintiffs brought suit seeking a declaratory ruling that this portion of FISA was unconstitutional. the plaintiffs claimed there was an “objectively reasonable likelihood” that the plaintiffs’ communications would be recorded under FISA. Alternatively, the plaintiffs claimed that given the risk of surveillance, they had to spend significant funds to ensure that their communications were kept confidential. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule''': threatened injury must be certainly impending to constitute actual or imminent. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' plaintiffs do not present any evidence that their communication has been intercepted by FISA. They merely claim that there is an “objectively reasonable likelihood” that their communications will be intercepted in the future. No standing. </div>

'''Agency Action'''

Only “agency action” can be reviewed by the court under '''§702'''. The action must be a final action. 

“A person suffering a legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” '''§701'''
* <div style="margin-left:0.5in;margin-right:0in;">Defined in §551(13): “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent denial thereof, or failure to act”</div>
* <div style="margin-left:0.5in;margin-right:0in;">Agency action includes: promulgating a rule (legislative or not), issuing an order, and other types of actions.</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Example'': failure to grant a license</div>



<span style="color:#0000ff;">'''Lujan v. National Wildlife Federation'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': The plaintiffs submitted four affidavits alleging that the “land withdrawal review program” itself harmed them. The land withdrawal review program involved all of BLM’s activities concerning the withdrawal of classifications of certain lands. The issue was whether these activities would constitute “agency action” and thus make this suit allowable under §701 review.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' The “land withdrawal review program” is not agency action within the meaning of §702 (or 701?), nor is it final agency action under §704. </div>
** <div style="margin-left:1in;margin-right:0in;">'''(1) '''The program does not encompass a single agency action, regulation, or order. The petitioners have referred to it as the continuing operations of the BLM in reviewing the withdrawal revocation applications, the classifications of public lands, and the developing of land use plans. </div>
** <div style="margin-left:1in;margin-right:0in;">'''(2) '''The individual actions identified by the petitioners are also insufficient because they can be considered as rules of general applicability. However, these actions are merely future actions that are not ripe yet – they must have some immediate harming affect and they do not.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''TAKE AWAY'''- After this case, citizen suits have not been totally discredited but recognized as allowing congress to create standing, who must do so within constitutional requirements of Article III</div>


'''Exclusions from Judicial Review Under the APA'''

<u>'''Statutory Preclusion '''</u>

'''§701(a)(1) '''of the APA makes clear that judicial review is not available when statutes preclude judicial review OR the agency action is committed to agency discretion by law. These types of statutes are rare, but many statutes limit judicial review to certain circumstances, rather than precluding it altogether. 

The courts tend to not interpret statutes as precluding judicial review because (1) it would most likely be unconstitutional to preclude constitutional claims, and (2) the APA provides a cause of action for any person harmed by agency action (VERY rare, courts generally do not limit judicial review)

'''Preclusion by Statute'''→ can be expressly or implicitly.
* <div style="margin-left:0.5in;margin-right:0in;">Implicitly- rare and reluctant because Congress has the ability to do it expressly </div>
** <div style="margin-left:1in;margin-right:0in;">Rejected- <span style="color:#0000ff;">''Abbot Labs''</span>, too generous of a standard, won’t be included just because the statute mentions it, cannot assume.</div>
** <div style="margin-left:1in;margin-right:0in;">Accepted- <span style="color:#0000ff;">''Community Commission Institution''</span>, had to be a really compelling reason. It was a complex administrative scheme. </div>

<u>'''Committed to Agency Discretion '''</u>

'''§701(a)(2) '''if an “action is committed to agency discretion by law” (i.e. omits a standard under which to exercise discretion of agency) review will be precluded. In other words, if statute grants discretion to an agency, and the law omits a standard under which to assess the exercise of that discretion, then Congress has committed that action to agency discretion by law (very rare)
* <div style="margin-left:0.5in;margin-right:0in;">''Example:'' an agency’s choice not to prosecute or enforce its regulations absent an express statutory mandate to prosecute. </div>

<span style="color:#0000ff;">'''Citizens to Preserve Overton Park, Inc. v. Volpe'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Supreme court addressed this section of 701, stating that it was a “very narrow exception” that applied only where a statute was phrased in such broad terms that “there was '''no law to apply'''”</div>
** <div style="margin-left:1in;margin-right:0in;">“No law to apply” means that Congress had created such a broad statute that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''If there is “no law to apply” then the action is committed to agency discretion (no standard)''</div>

<span style="color:#0000ff;">'''Heckler v. Chaney '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' the respondents were convicted and sentenced to death by lethal injection. They appealed to the FDA, arguing that while the drugs to be involved in the lethal injection had been approved, the manner in which they were going to be used had not, in violation of the Food, Drug, and Cosmetic Act’s prohibition against “misbranding.” They also argue that the Act’s procedures for “new drugs” should be applicable, given that these drugs were being utilized for new and un-tested purpose. The respondents also argued that the FDA is required to exercise its enforcement power to ensure that states only use drugs that are “safe and effective” for human execution. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' ''an agency’s decision not to pursue an enforcement action (or investigate) is presumptively unreviewable, as such actions are “committed to agency discretion by law” under''''' §701(a)(2)'''</div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>Three reasons why reviewing an agency’s decision not to act is unsuitable to judicial review:</u></div>
** <div style="margin-left:1in;margin-right:0in;">(1) An agency decision whether to initiate enforcement actions are usually based on a complicated balancing of multiple factors, such as efficient allocation of limited resources, likelihood of success, and the relationship of potential action to the overall enforcement strategy of the of the agency. The courts are ill-suited to perform such an analysis. </div>
** <div style="margin-left:1in;margin-right:0in;">(2) When an agency chooses not to act, they are not exercising any coercive power over others that might be worthy of heightened judicial protection. </div>
** <div style="margin-left:1in;margin-right:0in;">(3) The Court found an agency’s discretion not to seek enforcement as being analogous to exercises of prosecutorial discretion that courts have traditionally been unwilling to review. </div>
* <div style="margin-left:0.5in;margin-right:0in;">The presumption of unreviewability is rebuttable where (a) an agency declines to act based “solely” on its belief that it lacks jurisdiction, or (b) where an agency “consciously and expressly” adopts a policy that it represents an abdication of its statutory responsibility. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court: '''the agency did not need to take action. Such decisions are presumptively unreviewable under the common law and was Congress’ intention under the APA to codify the common law. </div>
** <div style="margin-left:1in;margin-right:0in;">Agencies have expertise in determining what enforcement actions should be </div>
** <div style="margin-left:1in;margin-right:0in;">Alternative means of holding agencies accountable for other enforcement- use political branches to tell the agencies it is wrong. Judicial review is meant to be a safeguard against political branch.</div>

<span style="color:#0000ff;">'''Webster v. Doe'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' respondent was an exemplary employee of the CIA for several years, and was promoted from a clerk-typist to a covert electronics technician. He voluntarily told the CIA that he was homosexual, and was almost immediately placed on administrative leave. The Director later terminated his employment, finding him to be a security threat. The statute precluded judicial review of the Director’s determination: “The Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he <u>shall deem</u> such termination necessary or advisable in the interests of the US.”</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' an agency will have broad discretion to take an action when it is ''expressly committed to agency discretion in statute. ''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' judicial review under the APA is not permitted. The statute clearly granted broad discretion to the Director. Congress intended to commit individual employee discharges to the Director’s discretion. No reviewability in the way the statute was worded, “deemed”</div>
** <div style="margin-left:1in;margin-right:0in;">The respondent does have a constitutional claim – rational basis</div>
*** <div style="margin-left:1.5in;margin-right:0in;">Even if the statute doesn’t have standards to apply, can bring Constitutional claim</div>
*** <div style="margin-left:1.5in;margin-right:0in;">Harder when standard comes from another statute rather than the constitution. </div>

'''Timing'''

Three principles have an impact on the timing of judicial review:
# <div style="margin-left:0.5in;margin-right:0in;">A party can obtain judicial review only of '''final agency actions''' unless Congress has authorized review at an earlier stage</div>
# <div style="margin-left:0.5in;margin-right:0in;">A party may have to '''exhaust any administrative remedy''' as a prerequisite to agency review.</div>
# <div style="margin-left:0.5in;margin-right:0in;">A party can obtain judicial review of any agency action only if that action is '''ripe''' for review. </div>

<u>'''Finality '''</u>

'''§704''' says that only final agency action is reviewable, must be binding. If a statute provides for judicial review, then review proceeds pursuant to the statute (not the APA). If no specific statutory provision for review exists, the agency action must be final and no other remedy can exist for a party to proceed with review under the APA. If the agency decision is not final, the case will be dismissed for lack of subject matter jurisdiction. 
* <div style="margin-left:0.5in;margin-right:0in;">Non-legislative rules are not binding because they could be changed at any time but does not automatically mean it’s not final – finality can be challenged before binding agency action</div>

'''Direct or Immediate Effect''' → to determine whether an agency action is final, ask ''whether the agency has completed its decision-making process and whether the result of that process is one that will directly affect the parties <span style="color:#0000ff;">Franklin v. Massachusetts''</span> .

'''Agency Actions are Deemed Final When '''
# <div style="margin-left:0.5in;margin-right:0in;">They mark the consummation of the agencies decision process (aka they are not interlocutory), AND </div>
## <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''National Laundry v. Shultz''</span> – <u>Final</u></div>
### <div style="margin-left:1.5in;margin-right:0in;">Court was deciding for everyone; whole industry was affected. </div>
## <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''Taylor Callahan Coleman v. Dole''</span> – <u>Not Final </u></div>
### <div style="margin-left:1.5in;margin-right:0in;">Two opinion letters that the administrator made, the opinion letters were challenged on basis that they were legislative rules. The letters were not final agency action. DOL had stated in advisory opinions that it was merely guidance. </div>
# <div style="margin-left:0.5in;margin-right:0in;">Action is one which rights or obligations have been determined or legal consequences flow</div>
## <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''Appalachian Power Company v. EPA ''</span></div>
### <div style="margin-left:1.5in;margin-right:0in;">EPA tried to say it was just advisory and said they were going to enforce it. Court said that rights, obligations, and legal consequences flowed from that advisory because they were going to enforce it.</div>
## <div style="margin-left:1in;margin-right:0in;"><span style="color:#0000ff;">''Bennett v. Spear ''</span></div>

'''Elements that Demonstrate''' '''Finality'''<span style="color:#0000ff;">'' Abbot Labs''</span> and <span style="color:#0000ff;">''Taylor</span><span style="color:#0000ff;">''' '''''</span>
# <div style="margin-left:0.5in;margin-right:0in;">Whether the challenged action is definitive statement of the agency’s position</div>
# <div style="margin-left:0.5in;margin-right:0in;">Whether the actions have the status of laws with penalties for noncompliance</div>
# <div style="margin-left:0.5in;margin-right:0in;">Whether the impact on the plaintiff is direct and immediate</div>
# <div style="margin-left:0.5in;margin-right:0in;">Whether immediate compliance was expected. </div>



<span style="color:#0000ff;">'''Taylor-Callahan-Coleman Counties District Adult Probation Department v. Dole'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The Wage and Hour Administrator, from the Department of Labor, issued an opinion letter in 1974 advising a party that a certain type of probation officer (as described in the letter) was exempt from the overtime requirements of the FLSA. In 1988, DOL issued two opinion letters stating that a certain type of probation officer was not exempt from the overtime requirements of the FLSA. the Probation Department challenged the letters on the grounds that they were legislative rules that had not gone through notice and comment, nor were they consistent with prior regulations and the statute. the plaintiffs argue that the court has jurisdiction under the APA’s judicial review grant. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' In order for agency action to be final, (1) the action must mark the ‘consummation’ of the agency’s decisionmaking process (not tentative or interlocutory in nature), and (2) the action must be one in which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow’</div>
** <div style="margin-left:1in;margin-right:0in;">Finality requires a definitive statement of agency. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the letters are NOT FINAL AGENCY ACTION (did not have binding effect) and, thus, the case is dismissed for lack of subject matter jurisdiction. Only applied to one person, thus the narrow application of opinion letter cannot be challenged besides the person who wrote it. Not a definitive determination of law. </div>
** <div style="margin-left:1in;margin-right:0in;">This case is distinguished from other cases because the letter involved was not one of general applicability, nor did it involve a letter that resulted in a big loss for union members who lost a chance. </div>

<span style="color:#0000ff;">'''Appalachian Power Company v. EPA'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' under Title V of the 1990 amendments to the CAA, states are required to submit operating permits and proposed and final permits related to stationary sources of air pollution to the EPA for approval. If the EPA objects to the permits within 45 days, the state may not issue the permit. In 1992, the EPA promulgated rules implementing the permit program. These rules mandated that permits contain a requirement for periodic monitoring. The rules were unclear as to whether this monitoring requirement trumped existing, non-periodic, monitoring requirements for certain polluters. To address this point, the EPA issued a document entitled “Periodic Monitoring Guidance for Title V Operating Permit Programs.” the Guidance clarified that permits are to require “periodic monitoring” even in situations where the source of pollution was already subject to a different, non-periodic, monitoring requirement. Electric power companies and trade associations representing the nation’s chemical and petroleum industry challenged</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' although agency action was titled as “policy statement,” it was final action which policy statement flowed. The guidance letter creates obligations. It’s a letter based upon a settled agency position, a position it plans to follow in reviewing permits, a position it will insist local authorities comply with, an a position EPA officials are bound to apply. </div>
** <div style="margin-left:1in;margin-right:0in;">The fact that the Guidance may be altered does not mean that it is not a final agency action. All laws are subject to change- even the Constitution. That doesn’t mean that they are not binding. </div>

<u>'''Exhaustion '''</u>

Exhaustion is a common-law concept and is codified in '''§704'''. Where Congress has mandated exhaustion, it is required; where it has not, judicial discretion governs. Exhaustion protects administrative agency authority and promotes judicial efficiency. 
* <div style="margin-left:0.5in;margin-right:0in;">A party must exhaust all administrative remedies within the agency before going to court. A party could potentially lose their chance to utilize all administrative remedies due to the lengthiness of a court case (aka miss deadline to file agency appeal). </div>
* <div style="margin-left:0.5in;margin-right:0in;">A person need not appeal to the agency for the agency action to be considered final, unless there is a statute requiring the appeal. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Pros and Cons of being withheld from judicial review'':</div>

{| style="border-spacing:0;width:7.65in;"
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
| align=center| '''Pros'''
| align=center| '''Cons'''
|- style="border:0.5pt solid #000001;padding-top:0in;padding-bottom:0in;padding-left:0.0785in;padding-right:0.075in;"
|| 
* <div style="margin-left:0.5in;margin-right:0in;">Gatekeeper to ensure judicial economy</div>
* <div style="margin-left:0.5in;margin-right:0in;">Efficiency </div>
* <div style="margin-left:0.5in;margin-right:0in;">Making plaintiff go through agency could enhance record that courts can review later on''' '''</div>

|| 
* <div style="margin-left:0.5in;margin-right:0in;">Might end up harming plaintiff because it takes a while to get administrative relief</div>
* <div style="margin-left:0.5in;margin-right:0in;">Agency may be biased</div>
* <div style="margin-left:0.5in;margin-right:0in;">Sometimes individual harm</div>

|-
|}

'''Purpose of Exhaustion Doctrine'''
* <div style="margin-left:0.5in;margin-right:0in;">Recognized congresses delegation to agencies not the courts (separation of powers)</div>
* <div style="margin-left:0.5in;margin-right:0in;">It allows agencies to correct own mistake and promotes judicial efficiency (note also creates a better record for the court)</div>

'''Common Law Exhaustion Doctrine''' → requires plaintiffs to exhaust administrative remedies before seeking judicial review by the courts. Applies to non-APA COAs 

<span style="color:#0000ff;">'''McCarthy v. Madigan'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Exception to common law exhaustion))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' the general “Administrative Remedy Procedures for Inmates,” promulgated by the Federal Bureau Prisons allows prisoners to “seek formal review of a complaint which relates to any aspect of imprisonment.” The review process does not provide for any kind of hearing. Petitioner did not go through the prison administrative remedy, but filed suit in District Court, alleging respondents violated his 8<sup>th</sup> Amendment constitutional rights by their deliberate indifference to his needs relating to a back injury and psychiatric problems. He did not pursue the administrative remedy because he was seeking money damages (which were unavailable administratively. </div>
* <div style="margin-left:0.5in;margin-right:0in;"><u>'''Exhaustion Test'''</u> → exhaustion NOT required where the plaintiff’s need for judicial review outweighs the government’s need for efficiency. </div>
** <div style="margin-left:1in;margin-right:0in;">Prejudice – administrative remedy prejudices the court action</div>
** <div style="margin-left:1in;margin-right:0in;">Remedy sought is impossible to grant – where the remedy sought is not possible by pursuit of the administrative remedy.</div>
** <div style="margin-left:1in;margin-right:0in;">Bias of administrative process – so that recourse to the agency is inappropriate</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' although petitioner did not exhaust all the administrative remedies, he was still entitled to a hearing in court based off the nature of his claims. </div>
** <div style="margin-left:1in;margin-right:0in;">Balancing Test- given the type of claim raised and the particular characteristics of the Bureau’s grievance procedures, P’s interests outweighed the countervailing interests favoring exhaustion. Petitioner did not have to exhaust his constitutional claim for money damages</div>
** <div style="margin-left:1in;margin-right:0in;">Congressional Intent- congress neither enacted nor mandated the general grievance procedure promulgated by the Bureau. Further, the grievance procedure did not include monetary relief. </div>

'''APA Exhaustion Doctrine'''

'''§704''' of the APA codifies the common-law concept and explicitly requires exhaustion of all intra-agency appeal that are mandated by either:
# <div style="margin-left:0.5in;margin-right:0in;"><u>Statute</u>'' '''''OR '''</div>
## <div style="margin-left:1in;margin-right:0in;">Agency says if you want this to be final, you have to appeal it first</div>
## <div style="margin-left:1in;margin-right:0in;">Not final until appeal to head of agency takes place</div>
# <div style="margin-left:0.5in;margin-right:0in;"><u>Agency rule requiring exhaustion and agency provides an automatic stay pending appeal </u></div>
## <div style="margin-left:1in;margin-right:0in;">AKA- action meanwhile is inoperative</div>
## <div style="margin-left:1in;margin-right:0in;">Initial action on hold until appeal, doesn’t continue while appealed within agency </div>
## <div style="margin-left:1in;margin-right:0in;">Doesn’t take effect until final </div>

EXCEPTIONS- if the statute does not require exhaustion (or silent as to exhaustion), or if the agency regulations do not require exhaustion, or there is not stay provided, plaintiffs can immediately seek judicial review. 
* <div style="margin-left:0.5in;margin-right:0in;">Up to the agency on whether or not there is an exhaustion requirement. Final even though there might be: </div>
** <div style="margin-left:1in;margin-right:0in;">Application for declaratory order</div>
** <div style="margin-left:1in;margin-right:0in;">Application for reconsideration </div>
** <div style="margin-left:1in;margin-right:0in;">Application for appeal to superior agency authority - Just because you may be able to appeal through the agency doesn’t mean it is not final</div>

<span style="color:#0000ff;">'''Darby v. Cisneros'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' Darby was self-employed South Carolina real estate developer whom the Department of Housing and Urban Development debarred from participation in the program for a period of 18 months. Petitioner filed suit against HUD in District Court, and Respondents filed a motion to dismiss on the grounds that Petitioner had failed to exhaust administrative remedies. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' §704 constitutes a statutory exhaustion provision that substitutes the common-law doctrine. </div>
** <div style="margin-left:1in;margin-right:0in;">“Automatic stay pending appeal” = they will not take action until end of agency review. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Federal courts cannot require exhaustion of administrative remedies ''unless mandated by statute or agency rules.'' In other words – where the APA applies, an appeal to “superior agency authority” is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' Darby doesn’t have to use available process because it was an optional appeal, it was not required. </div>

'''Finality vs. Exhaustion'''
* <div style="margin-left:0.5in;margin-right:0in;">The finality requirement is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.</div>
* <div style="margin-left:0.5in;margin-right:0in;">The exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.</div>

<u>'''Ripeness'''</u>

Judicial review is only permitted if that action is ripe (meaning that it is the correct time to hear the case). It is the requirement case be ready for litigation. It is not an APA requirement; it is a common law jurisdictional question and applies to all federal court cases. Therefore, it applies to all cases. It looks to the proper time for a court to review the agency action. Courts are concerned about intervening too soon and if a dispute is too far in the future a good record.
* <div style="margin-left:0.5in;margin-right:0in;">Generally, rules that require immediate enforcement with threat of fines or penalties will be ripe under <span style="color:#0000ff;">''Abbott Labs''</span></div>
* <div style="margin-left:0.5in;margin-right:0in;">However, conditional legislative rules will not be ripe in a pre-enforcement context under <span style="color:#0000ff;">''Toilet Goods''</span>. </div>

'''Multi-Factor Test for Ripeness:'''
# <div style="margin-left:0.5in;margin-right:0in;">'''Is the issue <u>FIT</u> for judicial decision'''? (Abbott Labs)</div>
#* <div style="margin-left:1in;margin-right:0in;">Nature of claims legal or factual? (Abbott Labs/Ohio Forestry)</div>
#* <div style="margin-left:1in;margin-right:0in;">Final agency action? </div>
#** <div style="margin-left:1.5in;margin-right:0in;"><span style="color:#0000ff;">''Abbot Labs''</span>- although it was a pre-enforcement case, the rule was final and published in the federal register, and the agency stated it expected compliance.</div>
#* <div style="margin-left:1in;margin-right:0in;">Is the record complete? aka- what was the meaning of the statute, what did congress intend?</div>
# <div style="margin-left:0.5in;margin-right:0in;">'''Would parties suffer <u>HARDSHP</u> if the court withheld review?''' (<span style="color:#0000ff;">''Toilet Goods''</span>/Abbott Labs)</div>
#** <div style="margin-left:1.5in;margin-right:0in;"><span style="color:#0000ff;">''Abbott Labs''</span>- court found hardship because the companies would have to incur cost of re-producing all their labels. Also, if they refused to comply they could immediately suffer enforcement action or fines. </div>
#* <div style="margin-left:1in;margin-right:0in;"><u>Would judicial intervention inappropriately interfere with future agency action? </u></div>
#** <div style="margin-left:1.5in;margin-right:0in;"><span style="color:#0000ff;">''Ohio Forestry-''</span> the court wanted to allow the Agency to proceed with plan so they could refine policy. The Sierra club had additional opportunities to litigate before harm was incurred. </div>

<span style="color:#0000ff;">'''Abbott Laboratories v. Gardner'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' FDA issued drug manufactures to list generic names on bottle, not just the trade name. Plaintiffs sought pre-enforcement review, agency denied review and P’s sued. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Is the issue fit for judicial review now as opposed to the future?</div>
** <div style="margin-left:1in;margin-right:0in;">Arbitrary and capricious- effects the rule itself. This is a purely legal question that is not affected by agency’s thought process.</div>
** <div style="margin-left:1in;margin-right:0in;">Mixed questions- should wait for enforcement, not purely legal. </div>

* <div style="margin-left:0.5in;margin-right:0in;">Drug companies were NOT prohibited by ripeness doctrine from challenging an FDA regulation requiring a prescription drug’s generic name to appear on all related printed materials.</div>
* <div style="margin-left:0.5in;margin-right:0in;">The government argues that the case was not ripe because the regulation had yet to be enforced; however, that argument failed as the Court found the issues to be fit for judicial resolution, and the drug companies would experience substantial hardship if denied a pre-enforcement challenge to the statute. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' the basic rationale of ripeness is to avoid entangling in abstract agreements and prevent judicial interference until formal agency action.</div>
** <div style="margin-left:1in;margin-right:0in;">NOTE → problem here was PRE-ENFORCEMENT! if post-enforcement, no ripeness issue. </div>



<span style="color:#0000ff;">'''Toilet Goods'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Not Ripe, failed hardship))'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts''': rule provided that if a person failed to give an employee of the FDA access to manufacturing facility the FDA could suspend license. Private company brought a pre-enforcement challenge.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court''': held that action was not ripe. Unlike in Abbott Labs, it was a conditional requirement. Had to have a person come to the facility and be refused. Court found there was no sure immediate enforcement.</div>
** <div style="margin-left:1in;margin-right:0in;">There wasn’t a double bind of hardship, both compliance and non-compliance wasn’t costly.</div>

<span style="color:#0000ff;">'''Ohio Forestry Association, Inc. v. Sierra Club'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Factor whether intervention inappropriately interferes))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' The Sierra Club challenged the lawfulness of a federal land and resource plan adopted by the United States Forest Service on the ground that it permitted too much logging and clearing for Ohio’s Wayne National Forest. The Plan set logging goals, selected areas of the forest which were suitable for timber production, determined which methods of timber harvest were appropriate, but did not itself authorize the cutting of any trees. Before the Forest Service could permit logging, it would have to go through additional steps, including a notice and comment procedure and an environmental analysis. The Sierra Club objected when the Forest Service first proposed its plan, and pursued various administrative remedies to have the Plan modified, prior to bringing this action in federal court.</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' suit was not ripe for review. To withhold judicial consideration at that stage would not cause the parties significant hardship as the plan did not even confer the right to cut any trees. </div>
** <div style="margin-left:1in;margin-right:0in;">From the agency’s perspective, judicial review that that stage would hinder its ability to refine its policies through revision of the plan or application of the plan in practice. </div>
** <div style="margin-left:1in;margin-right:0in;">Review of SC’s claims at that stage would have required time-consuming judicial consideration of the details of an elaborate plan, without the benefit that a particular logging proposal could provide. </div>
** <div style="margin-left:1in;margin-right:0in;">Congress did not provide for pre-implementation judicial review of forest plans. </div>

==AGENCY STRUCTURE==

'''Different analytic frameworks for evaluating blendings of power that are NOT specifically authorized by the Constitution:'''
# <div style="margin-left:0.5in;margin-right:0in;">''Formalism-'' a technique that interprets constitutional requirements as literal as possible. Has the impact of minimizing the extent to which the powers of the three branches overlap. </div>
## <div style="margin-left:1in;margin-right:0in;">Under this approach, the Court identifies the power being exercised as legislative, judicial, or executive, and then it determines whether the power is being exercised by an inappropriate branch. </div>
## <div style="margin-left:1in;margin-right:0in;">Congress is setting <u>intelligible principal</u> (ultimate goal) and it is up to agency to delegate</div>
## <div style="margin-left:1in;margin-right:0in;">When the Supreme Court concludes that a governmental structure is unconstitutional, it usually takes a formalistic approach to constitutional interpretation</div>
## <div style="margin-left:1in;margin-right:0in;">''Formalist is someone who classifies power then assigns it to a branch of government ''</div>
### <div style="margin-left:1.5in;margin-right:0in;"><span style="color:#0000ff;">''Youngstown Sheet & Tube Co. v. Sawyer''</span>- the court struck down President Truman’s order directing the Secretary of Commerce to seize and operate the nation’s steel mills. It held that Congress did not authorize the seizure, and the President had improperly aggregated to himself the power to make law. </div>
# <div style="margin-left:0.5in;margin-right:0in;">''Functionalism'' – technique that has the impact of extending the extent to which the powers of the three branches overlap, on the ground that the Constitution itself commingles powers among the branches.</div>
## <div style="margin-left:1in;margin-right:0in;">Under this approach, the Court determines whether Congress has gone too far in commingling of powers by using a “core function” test. </div>
### <div style="margin-left:1.5in;margin-right:0in;">This test approves the commingling of power as long as one branch’s exercise of a power does not jeopardize the “core function” of another branch. </div>
### <div style="margin-left:1.5in;margin-right:0in;">AKA- whether it is a concept necessary to protect fundamental branch interests</div>
## <div style="margin-left:1in;margin-right:0in;">When the Court is less strict about separation of powers, it usually uses a functional approach which interprets constitutional powers in a nonliteral manner. </div>
## <div style="margin-left:1in;margin-right:0in;">''Functionalist asks if one branch of government is unduly interfering with the power of another branch, and is it an appropriate sharing of power?''</div>

'''Delegation of Legislative Power'''

'''The Delegation Issue'''

The Constitution authorizes the delegation of rulemaking to agencies because Article 1, §8 provides that Congress has the power “to make all laws which shall be necessary and proper for carrying into execution” the other powers in Article 1. 
* <div style="margin-left:0.5in;margin-right:0in;">All agency action must fall within the statutory grant of rulemaking power provided by congress. The constitutional Delegation Doctrine gives Congress the authority to delegate broad quasi-legislative and quasi-judicial power as long as it gives an agency an <u>Intelligible Principle</u> in exercising the power. </div>

'''Intelligible Principle Test (Modern Application)'''

Congress does not violate the prohibition against delegating its legislative powers as long as it sets the boundaries of the agency authority. Meaning that a agency may make legislative like policy decision so long as they are within the overarching principle defined by congress in its enabling statute. If, however the delegation is broad and ambiguous, it may not offer sufficient guidance to the courts concerning the extent of the agency’s authority to promulgate rules. 

<span style="color:#0000ff;">'''Whitman v. American Trucking Associations, Inc. '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' ATA challenged the EPA’s promulgation of National Ambient Air Quality Standards for ozone and particular matter. The Clean Air Act requires EPA to establish standards “requisite to protect the public health” with an “adequate margin of safety.” ATA argued on judicial review of the NAAQS (National ambient Air Quality) that the EPA’s construct of the CAA violated the nondelegation doctrine</div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Issue:''' whether the statute has delegated legislative power to the agency. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule''': when Congress confers decisionmaking authority upon agencies CONGRESS must “lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.” </div>
** <div style="margin-left:1in;margin-right:0in;">Intelligible Principle Test- when IP is there, the agency’s power to exercise is no longer called legislative powers. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' remanded the case to the agency. Court reaffirms intelligible principle test and says that the CAA’s language easily meets that test. The court rejected allowing an agency to cure unlawful delegation of legislative power by adopting, in its own discretion, a limited construction of the statute. Congress must make the important policy decisions. </div>
** <div style="margin-left:1in;margin-right:0in;">When sweeping regulations are provided by congress, there needs to be some type of guidance. Court said that requisite is enough of an agency delegation to fulfill its role</div>
** <div style="margin-left:1in;margin-right:0in;">Justice Stevens Concurrence- he is functionalist, doesn’t think IP is real. </div>

'''The Legislative Veto'''

'''Delegation of Legislative Veto is UNCONSTITUTIONAL '''

Until the legislative veto was declared to be unconstitutional, Congress reserved for itself the right to veto rules or orders in almost 200 statutes. The veto was popular because Congress could delegate substantial discretion to an agency and still retain the authority to disapprove of specific agency decisions (be able to delegate authority to the executive and then veto rules or orders within the statutes). The veto violates the requirements of presentment and bicameralism. 

<u>Presentment and Bicameralism</u>

Bicameralism → every bill or resolution out of Congress must pass both houses

Presentment → every bull or resolution out of Congress must be signed by the president 

<span style="color:#0000ff;">'''Immigration and Naturalization Service v. Chadha'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' the Attorney General was given ability to stay deportation in situations of hardship. Chadha’s student visa lapsed. He was a person without a country. Under the statute, any stay of deportation by the agency had to be reported to Congress and if Congress object, they could overrule the stay. Congress did so here. Chadha appealed arguing legislative veto was unconstitutional. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' legislative vetoes have the effect of law, violating bicameralism and presentment requirements. Every bill or resolution must pass both houses and be signed by the president. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' determined that the legislative veto in §224 of the Immigration Act was unconstitutional. Supreme Court stated that THAT part of the Act could not be severed or separated, thus the entire section was unconstitutional, despite the immigration statute having a severability clause. </div>
** <div style="margin-left:1in;margin-right:0in;">House action altered rights, thus it was legislative in effect</div>

'''Post-Veto Developments '''

Congress took two steps to reassert its authority over agency decisionmaking in the wake of <span style="color:#0000ff;">''Chadha''</span>. In 1995, the House of Reps established “Corrections Day” as a method to expedite review of both perceived mistakes made by Congress and perceived errors made by agencies. Further, a 1996 law, the Congressional Review Act, required agencies to submit all rules to Congress for its review and stays the effective state of major rules to permit legislative review. 

'''Corrections Day '''

Involves a process established by the House of Reps for correction of confessional and agency “mistakes.” After a House committee approves a bill, it can apply to have it placed on the Corrections Calendar which specifies one or two days a month when the House will consider adoption of the bill under fast-track procedures. The rules for CD expedite consideration of the bill in three ways: (1) there is a limited time for debate; (2) only the chair of the committee with jurisdiction over the bill can move to amend it; and (3) opponents are limited to one motion to recommit the bill. However, a bill must pass by a 60% majority on CD. Any bill that fails to pass can be considered at a later day under normal House rules. 
* <div style="margin-left:0.5in;margin-right:0in;">''Corrections Day has essentially disappeared from view. It had virtually no effect on agency regulations and certainly did not reestablish any form of legislative check on regulations. ''</div>

'''Congressional Review of Agency Rulemaking'''

Under the CRA, agencies must submit all new rules to Congress and Comptroller General, along with copies of any cost-benefit analysis, regulatory flexibility analysis, and analysis undertaken pursuant to the Unfunded Mandates Reform Act. 
* <div style="margin-left:0.5in;margin-right:0in;">A major rule cannot take effect until 60 days after the previous information is submitted to Congress, or after the rule is published in the Federal Register, whichever date is later.</div>
* <div style="margin-left:0.5in;margin-right:0in;">A “major rule” is one with an annual economic impact of $100 million or more or with other significant regulatory impacts identified in the legislation. </div>
** <div style="margin-left:1in;margin-right:0in;">This stay does not apply if a rule is not a major rule, if the Prez certifies by executive Order that immediate implementation is necessary for an imminent threat to health or safety or other emergency, or if an agency determines that it has good cause for promulgating the rule without prior notice and comment. </div>
* <div style="margin-left:0.5in;margin-right:0in;">In 17 years, Congress has voted to overturn only one agency regulation. </div>

'''The Regulations from the Executive in Need of Scrutiny Act of 2011'''

The REINS Act would amend the CRA to require Congress to approve by law all major rules before they could take effect. Judicial review of actions under the Act would be precluded, except that a court could determine whether a Federal Agency had completed the necessary requirements under this chapter for a rule to take effect. 
* <div style="margin-left:0.5in;margin-right:0in;">This bill has passed and failed several times</div>

'''Appointment and Removal'''

<u>'''Appointments Clause'''</u>

Article 2, Section 2 says that the President shall nominate and ''appoint'' all officers of the United States whose appointments are not otherwise provided for in the Constitution of by law, but Congress may enact laws allowing the President, Heads of Departments, or Courts of Law to appoint ''inferior officers''. 

'''Officers of the United States '''

All persons who can be said to hold an office under the government, someone exercising significant authority pursuant to the law of the United States. * <div style="margin-left:0.5in;margin-right:0in;">Article 2 requires that the President nominate and appoint the Officers, with the advice and consent of the Senate.</div>
* <div style="margin-left:0.5in;margin-right:0in;">Congress may NOT appoint Officers of the United States. </div>
** <div style="margin-left:1in;margin-right:0in;">It may however, appoint people to positions that are not of the Officer level like employees</div>

'''Inferior Officers of the United States'''

Generally speaking, inferior officer connotes a relationship with some higher-ranking officer or officers below the President. Lower level executive officials beneath the President. Have supervision and control.
* <div style="margin-left:0.5in;margin-right:0in;">Congress may allow inferior officers to be appointed by the President, Heads of Departments, or Courts of Law</div>

'''Employees'''

People who do not exercise “significant authority pursuant to the laws of the United States” do not need to be hired pursuant to the Appointments Clause
* <div style="margin-left:0.5in;margin-right:0in;">Lesser functionaries, subordinate to Officers. </div>



<span style="color:#0000ff;">'''Buckley v. Valeo'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Congress was trying to assert itself for appointing officers to federal commissioners in the FEC. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' Officers do not include all employees of the US. The Appointments Clause refers only to appointment of “officers” and “inferior officers” but does not say anything about other employees. </div>
* <div style="margin-left:0.5in;margin-right:0in;">'''Court:''' held that Congress may NOT appoint administrative officials. The FED could not engage in executive functions such as rulemaking and enforcement because 4 of its 6 members were appointed by members of Congress. Only ''officers of the US'' may exercise that authority and that such officials be appointed in accordance with the Appointments Clause. </div>
* <div style="margin-left:0.5in;margin-right:0in;">Formalist- set precedent for formalistic approach of determining who is an officer. </div>

'''Principal Officers'''

High-level officials in the executive branch and heads of independent agencies
* <div style="margin-left:0.5in;margin-right:0in;">Must be appointed by the President</div>



'''Factors separating <u>INFERIOR</u> officers from <u>PRINCIPAL</u> officers '''p.598
* <div style="margin-left:0.5in;margin-right:0in;">Subject to removal by higher executive branch official</div>
* <div style="margin-left:0.5in;margin-right:0in;">Only empowered to perform certain, limited duties under the statute</div>
* <div style="margin-left:0.5in;margin-right:0in;">Only has power in a limited jurisdiction</div>
* <div style="margin-left:0.5in;margin-right:0in;">Has a limited tenure</div>


<span style="color:#0000ff;">'''Morrison v. Olson'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Facts:''' In passing the Ethics in Gov’t Act, Congress created the office of Special Prosecutor to investigate misdeeds by gov’t officials. It provided that the AG must investigate allegations and report to a special judicial division, which was enabled to appoint an independent counsel which in turn would have full prosecutorial authority. The counsel could be removed only by impeachment or by the AG for good cause.</div>

* <div style="margin-left:0.5in;margin-right:0in;">'''Court''': due to the limited scope of the counsel’s office, the counsel is an inferior officer, not a principal officer. Court held that the supervisory powers of the special division are of ministerial nature and do not trespass on the authority of the Executive. </div>
** <div style="margin-left:1in;margin-right:0in;">Relied on the limited scope and duration of the independent counsel’s appointment and the AG’s removal power, to hold that the independent prosecutor is not a principal officer. </div>
** <div style="margin-left:1in;margin-right:0in;">AKA- <u>if inferior officer, have supervision and control</u></div>

<span style="color:#0000ff;">'''Edmond v. United States'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Military judges were subject to supervision and control, thus were considered inferior officers</div>
** <div style="margin-left:1in;margin-right:0in;">Control because they were subject to removal for any reason. </div>

<u>'''Removal Power/Impeachment Clauses'''</u>

Constitution is silent as to the removal of officers. Congress may, under certain circumstances, restrict the Presidents power to remove executive officials but Congress itself may not retain advice and consent power over removal of officials or participate in the removal of officials except through exercise of the impeachment power. Article 2, Section 4 says that the president, vice president, and civil officers can be impeached for treason, bribery, and other high crimes. 

'''Limits on Presidential Removal Power'''

The President has nearly unrestricted power to remove “the most important subordinates”
* <div style="margin-left:0.5in;margin-right:0in;">The President’s power to remove independent Officers (those not purely Executive in nature) is limited. Congress can require that the President only remove these people for “good cause” (<span style="color:#0000ff;">''Morrison v. Olson''</span>)</div>
** <div style="margin-left:1in;margin-right:0in;">Congress can restrict the President’s power to remove even purely Executive Officers so long as the procedures do not interfere with his ability to execute the law of the US. </div>
*** <div style="margin-left:1.5in;margin-right:0in;">Must look to whether a restriction on the President’s removal impede the President’s ability to faithfully execute the law. </div>

<span style="color:#0000ff;">'''Meyers v. United States'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Ct ruled that Congress may not statutorily require President to seek Senate’s permission before removing a local postmaster. This case is cite as establishing the President’s unlimited constitutional power to remove purely exec officials. '''Congress may not restrict the removal of principal officers, but may allow restrictions on inferior officers'''</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Purely executive officials may be removed at will by the president''</div>



<span style="color:#0000ff;">'''Humphrey’s Executor v. United States '''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''((Old standard))'''</div>

* <div style="margin-left:0.5in;margin-right:0in;">FTC. The court held that Congress may limit President’s removal power to require a finding of cause before an official exercising '''quasi-legislative''' and '''quasi-judicial''' power may be removed. Ct distinguished ''Myers'' because exercised purely executive, whereas ''Humphrey'' exercised legislative rulemaking and adjudicatory powers. Therefore, ''Humphrey'' was likely not an inferior, and so ''Meyers'' did not apply to him. However, the quasi-leg and quasi-judicial nature of the functions he performed provided a sufficient justification for restricting the President’s removal of a principal officer.</div>
* <div style="margin-left:0.5in;margin-right:0in;">''President could not remove and FTC commissioner without good caus. Included quasi-legislative and quasi-judicial powers. ''</div>

<div style="text-align:center;"><nowiki>**Both cases above are formalism**</nowiki></div>

<span style="color:#0000ff;">'''Morrison v. Olson'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">'''Rule:''' President has to show good cause for removal to give independent counsel true independence</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Must look to whether a restriction on the President’s removal impede the President’s ability to faithfully execute the law. ''</div>
* <div style="margin-left:0.5in;margin-right:0in;">This court takes functionalist approach – asks if one branch giving all the power to itself or is it interfering with another branches power to exercise</div>
** <div style="margin-left:1in;margin-right:0in;">President doesn’t have to have absolute power to remove counsel </div>
** <div style="margin-left:1in;margin-right:0in;">Good law, just addresses a statute that doesn’t exist anymore</div>

'''Legislative Removal'''

A direct congressional role in the removal of officers tasked with executing the laws is an unconstitutional blending of the separate powers. All executive powers must rest with executive officials. 
* <div style="margin-left:0.5in;margin-right:0in;">Congress cannot reserve for itself the power of removal of an officer charged with the execution of the law except by impeachment. AKA- congress may not remove executive officials. </div>

<span style="color:#0000ff;">'''Browsher v. Synar'''</span>
* <div style="margin-left:0.5in;margin-right:0in;">Court held that the comptroller general, an official subject to removal by joint resolution of Congress (with presentment to President), could not exercise authority under the laws of the US and thus could not establish potentially binding spending reductions under the Balanced Budged & Emergency Deficit Control Act of 1985. </div>
* <div style="margin-left:0.5in;margin-right:0in;">''Congress assigned the Comptroller General authority to execute an Act so he clearly had executive duties and is, therefore, not subject to legislative removal. ''</div>
* <div style="margin-left:0.5in;margin-right:0in;">The Court held this would violate the separations of powers because Congress would be interfering with the execution of the laws through the power to participate in the removal of an officer of the US</div>
** <div style="margin-left:1in;margin-right:0in;">Congress can only do this unless it gets the President to sign a bill</div>
* <div style="margin-left:0.5in;margin-right:0in;">''Compare function and structure to see if the two concepts are compatible. ''</div>
** <div style="margin-left:1in;margin-right:0in;">Make sure it is not an executive function</div>
** <div style="margin-left:1in;margin-right:0in;">See how it is set up. </div>