I. Types of federal agencies

A. APA §551(1) defines them

1. Does not include Congress, courts, gov’t, D.C., or President.

2. does not include labor unions or trade associations

3. does not include ADR or mediation groups.

4. does not include federal corporations like Amtrak or Tenn Valley Autho.

5. All agencies are sub-entities within a “department”

6. All Departments have Secretaries, except for DOJ

B. Executive agencies

1. Most agencies fall in this category

2. President appoints Department Secretary with advice and consent of the Senate.

a) They serve at the President’s pleasure. He can fire them at any time for any reason.

3. Each agency within a Department also has some sort of Head, who is appointed by the President with the advice and consent of the Senate, and who can be fired by the Pres at any time for any reason.

4. Agency/Dept heads serve until they resign or are fired.

5. Current Executive Branch Departments:

a) Ag

b) Commerce

c) Defense

d) Education

e) Energy

f) Health and Human Services

g) Homeland Security

h) HUD

i) Interior

j) Justice

k) Labor

l) State

m) Transportation

n) Treasury

o) Veteran Affairs

6. Examples of agencies that do not belong in any Department:

a) EPA

b) CIA

c) USPS

d) Social Security Administration

e) Farm Credit Administration

f) US Info Agency

g) US International Development Cooperation Agency

C. Independent agencies

a) Not part of any “department”, freestanding agencies.

b) The name of the agency is usually a “board” or “commission”

c) Members are usually “commissioners” or “board members”

2. 4 KEY Characteristics:

a) Not headed by one single person, rather, headed by a group of people who use majority rule to make decisions.

(1) In executive agencies, one person is the sole decision maker.

b) no more than a simple majority of the members come from a single party.

(1) I.e., a group of five could have not more than three from one party.

c) The group running the agency can only be removed for “cause” by the President.

d) Individuals in the leadership group serve for a term of years. The terms are staggered so no one President can wind up replacing an entire group.

3. 15 of these. Examples:

a) Nat’l Labor Relations Board

b) Securites & Exchange Comsn

c) Federal Trade Commission

d) FCC

e) Nuclear Regulatory Commission

f) Federal Reserve

D. Regulatory/Legislative agencies

1. Gov’t Accountability Office (GAO) is an example of a legislative agency

E. Judicial Branch agencies

1. judicial conference is an example of a judicial agency- each Circuit has it’s own conference

II. State agencies

A. Department heads are usually elected, rather than appointed by the governor.

III. Purpose of agencies

A. To execute the laws of the United States

B. To correct market errors

C. To regulate

1. avoid unacceptable outcomes of inefficiency

2. address inadequate consumer infor and insufficient competition

D. Administer entitlement programs

1. dispense aid

IV. Agencies’ source of authority

A. Constitution gives Congress the power to make all laws “necessary and proper” to exercising the three separated powers.

1. In light of complexity and rapidly changing society, it is necessary and proper for Congress to give quasi-leg and quasi-jud powers to agencies.

2. The “checks and balances” system naturally requires some overlap of powers. The necessary and proper clause gives Congress the power to ensure the overlaps happen in the right places.

3. Functional approach to the Constitution requires a “workable” government.

4. The court evaluates whether an administrative scheme undermines the proper functioning of any of the three branches.

5. It accepts that power may sometimes overlap as necessary.

6. the minority view on today’s Court.

B. Formalistic approach to the Constitution requires bright line separation of powers.

1. The court wants to see clear divisions of powers and duties. It rejects any overlap of duties.

2. Scalia camp

3. Branches are sealed compartments.

4. powers do not go beyond the legislature.

5. whatever admin agencies “DO” is not legislation because the Constitution tells us only Congress “does” legislation.

6. He doesn’t want Congress to give it’s power over to agencies, but he is ok with Congress giving direction to agencies to carry out on its behalf.

V. Limits on agency power

1. Congress delegates power to agencies via statutes.

2. Congress gets to decide the scope of the agency’s rulemaking powers.

3. Agency powers always come from and are limited by statute (whereas congress’ and court’s power come from Constitution; thus, the ‘quasi’)

4. Congress controls funding for agencies.

B. Constitution- Bill of Rights.

1. Congress can’t tell an agency to go discriminate against people.

C. Statues

1. Ex: Glancy was tasked with getting rid of the “Committee on Subversive Activities” set up during the fifties. Was still hanging around during the seventies. So she wrote a statue to abolish the committee.

VI. Overview- What can agencies do?

A. Make rules (RM)

a) promulgating a regulation that has the same force and effect as a law as if passed by Congress.

2. Formal §553, 556, 557

a) RARELY USED

b) Required when statute tells us everything must be on the record”

c) Agency must undertake the same type of hearing it would use for formal adjudication (instead of notice and comment.)

d) §553(c) requires formal RM when the agency’s mandate/enabling statute requires the rules to be made on the record after an opportunity for agency hearing.

e) Judicial review= substantial evidence.

3. Informal §553

a) Step 1: publish proposed rule in Federal Register

b) Step 2: public notice and comment period

c) Step 3: Publish the final version of the rule in the Federal Register, with a concise general statement of the basis and purpose for the rule.

d) Judicial review= arbitrary and capricious.

4. Hybrid

a) Occurs when Congress tells an agency to do more than informal RM, but does not go so far as to require formal RM.

b) Might require an informal hearing where ppl can make oral comments, present and cross-examine witnesses.

c) Examples of agencies using hybrid:

(1) FTC

(2) Clean Air Act, run by the EPA

B. Adjudicate disputes relating to its rules

a) applies an existing rule or statute to a set of facts to determine what outcome is required by that law or statute.

b) Agencies only have this power if specifically granted to them; many agencies do not have this power.

2. §554(a) tells us when to use formal or informal

3. Formal §554-558

a) Trial-type proceedings

b) Agency must give notice and offer an opportunity to settle

c) any decision must be based on the entire record which includes the hearing transcript and evidence

d) Judicial review=substantial evidence.

4. Appeal of formal adjudication §557

a) ALJ makes initial decision

b) Agency can bypass the ALJ decision by appealing to the agency administrator.

(1) The administrator, or group, does not have to give deference to the ALJ’s findings of fact

c) Agency administrator must make his decision based on the entire record, and provide a written opinion.

5. Informal §554(e)

a) No APA procedures for informal adjudication

b) But the enabling statute may still require the agency to hold a hearing for a reasonable opportunity to be heard and present evidence.

c) If the agency action is going to deprive a person of his liberty or property, the due process clause kicks in.

(1) Thus, agency must give “some kind of hearing”

d) Judicial review = arbitrary and capricious

C. Investigate violations of rules

1. subpoena powers

2. file reports to Congress

VII. Judicial review of rules and adjudications

A. Most agency actions are subject to judicial review

1. Agency action must be final §704

2. Appellant must have exhausted administrative remedies.

3. Must be ripe

4. Appellant must have standing

a) §702 requires either a “legal wrong”

b) Or, adversely affected within the meaning of the relevant statute.

B. Review of Questions of law

1. claims regarding the meaning of a constitutional, statutory or regulatory provision.

C. Substantial evidence review of factual decisions made in formal rulemaking or formal adjudication.

D. Arbitrary and capricious review of questions of fact and judgment made in informal rulemaking and informal adjudication.

E. Review of agency inaction

F. Exceptions to judicial reviewability §701

1. when the statute specifically precludes it

2. or if the agency action is committed to agency discretion by law

G. Scope of review

1. Court can determine whether agency action is constitutional

2. Court can determine if agency action is contrary to statute.

3. Court can determine if agency procedures were adequate.

4. Court can review substantive adequacy of agency’s decision.

a) De novo (no deference)

b) Substantial evidence (upholds decision as long as it was reasonable)

c) Arbitrary and capricious, or abuse of discretion (high deference)

VIII. Overview- public access to agency info

A. Freedom of Information Act (FOIA)

1. requires agencies to turn over documents to the public

B. Federal Advisory Committee Act (FACA)

1. requires groups that give the gov’t advice to make information about their operations available to the public.

C. Government in the Sunshine Act

1. requires some agencies to open their meetings to the public

D. Privacy Act

1. Limits public access to certain private information

Rulemaking

I. Non legislative Rules

A. Definition of a rule (contrast with order)

1. general applicability, vs. naming particular entities at whom the rule is directed.

2. Future effect, no retroactive rules allowed w/out specific statutory authority to do so.

B. Legislative Rules

1. Make law—are legally binding.

2. Specific statutory authority is required. Agencies are not inherently allowed to make legislative rules.

a) Agency with authority to make leglisltaive rules may also opt to use adjudication to make legally binding policies

b) Maybe b/c adjudication is less transparent to the public

3. The methods for making legislative rules= formal, informal and hybrid rulemaking, or formal, informal adjudication.

4. Examples

a) Motor vehicle safety standards

b) Workplace safety standards

C. Non Legislative Rules

1. If the rule is non-leg, the only procedure required by the APA is that it be published in the Federal Register per FOIA, §553(b)(3)(A).

2. The agency must follow it’s own interpretation.

a) until it says otherwise and explains the reason for the change. (Rust v. Sullivan p388)

3. TEST for determining whether a rule is non-leg or leg:

a) Is the policy setting forth a new duty or norm?

(1) How does the agency characterize it’s own action? Courts will defer to this.

(2) If it’s clarifying an existing duty, then it’s nonleg. But if there is a new duty, (ex: “must”) the rule is leg.

b) Is it binding? Is it final?

(1) If yes, it must go thru Notice and Comment.

(2) If no, it’s a policy statement and does not need to go thru Notice and Comment.

4. interpretative Rules (§553(b)(3)(A)

a) a statement issued by the agency to advise the public of the agency’s construction of the statutes and rules which it administers.

b) clarifies the nature of the duties already established

c) explains how an existing law is binding on those subject to it, but the explanation itself is not binding until it is adopted via rulemaking or an adjudication.

5. rules about agency organization, procedure or practice (§553(b)(3)(A)

6. policy statements (§553(b)(3)(A)

a) informs the agency’s staff and public about the agency’s position on various situations

b) Describes how the agency might react to situations in the future

c) Describes how the agency plans to exercise its discretion in the future.

d) Glorified press release

7. procedural rules are not binding on the public so the agency does not need specific statutory authority to make non-leg rules

a) agency’s that do not have authority to make legislative rules must rely on adjudications to make legally effective policy

b) Ex: NLRB

D. Judicial review of non-leg statutory interpretations usually get Skidmore, less deference than Chevron.

1. Interpretations are “entitled to respect” but only to the extent that those interpretations have the power to persuade.

2. Skidmore deference is not nothing, but it’s not a lot, either. It’s similar to the deference the CA Sup Ct would give to another state supreme court.

3. There is some kind of presumption that an agency’s actions in its area of expertise knows more than the court does. Administrative competence gets the nod but its much easier to undermine NL rules than Leg rules.

4. To the extent the agency is sticking to business, the Courts will defer.

5. a Non-Leg rule might get Chevron deference depending on:

a) relatedness of the legal question to the agency’s expertise

b) the importance of the issue to administration of laws the agency is tasked with enforcing

c) how complex the issue is

d) how much time/effort the agency has put into deciding the issue.

e) If Congress intended the agency to fill in gaps, ambiguity

6. Whether the agency gets Skidmore or Chevron is decided on a case-by-case basis.

7. If Court likes the agency’s interpretation, it can use it. But, it doesn’t have to use the agency’s interpretation.

E. Judicial review of non-leg rules that interpret the agency’s own regulations get deference.

1. Per Bowles v. Seminole Rock- aka, Seminole Rock doctrine.

2. Unless the interpretation is plainly erroneous or inconsistent with the regulation.

3. Examples:

a) Agency’s interpretation of it’s own regulations contained in an amicus brief

b) Interpretive rule filed by the Sentencing Commission

II. Triggers to Rulemaking

A. If an agency needs to gather legislative facts, it needs to engage in rule making.

1. Legislative facts= facts that tell us what is going on, but they don’t tell us what to “do” about some issue.

B. Statutory mandates

1. Congress mandates that the agency make rules

a) Congress strongly suggests the agency makes rules.

2. President tells the agency to make a rule

C. Petitions for rulemaking

1. other political pressure

D. Agency findings warrant a new rule

III. Petitions for Rulemaking

A. First, talk to the agency staff and reg-writers.

1. find out what they think, gauge awareness levels

2. education them about the issue.

3. Have arguments to show the agency why the rule is necessary.

a) Good for the economy

b) Comports with purpose/goal of existing statutes.

c) Has the authority to make the rule—better yet, show it that Congress wants it to do this via legislative history

d) Agency’s enabling statute requires it to make a rule about this topic

e) Show what other countries/geos are doing

f) Present new research/data

g) Show agency why it’s good for them, not why its good/bad for your client.

B. Second, try lobbying with Congress.

1. Register yourself as a lobbyist

2. Get them to lean on the agency.

3. Careful not to piss the agency off.

4. Look for allies

5. knock on every door

C. Third, try filing a petition for RM with the agency. §553(e)

1. Agencies are required to give interested persons the right to petition for the issuance, amendment or repeal of a rule.

2. check the Code of Fed Regulations to see if there are any rules this agency has made about how to petition

3. send a letter to the agency administrator requesting the change you want

4. Agency has wide discretion to approve/deny the petition.

D. Agency must give prompt notice of denial of a petition §555(e)

1. notice shall be accompanied by a brief statement for the grounds thereof §555(e)

2. Agency’s failure to respond constitutes an “agency action,” which means the petitioner can take the agency to court for failing to respond.

3. Agency can easily justify denial of petition

a) Doesn’t have authority to make the rule

b) Doesn’t think the issue is important given it’s resources or competing interests.

E. Judicial review of petitions for RM

1. Court has the power to compel agency action unlawfully withheld or unreasonably delayed. §706(1)

a) Is the agency’s delay so egregious as to warrant mandamus?

2. Test for unreasonable delay:

a) The time agencies take to make decisions must be governed by a rule of reason

b) Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the agency’s enabling statue

c) Delays that might be reasonable in the sphere of economic regulation are less tolerable in the sphere of human health and welfare

d) Court should consider the effect of expediting delayed action on the agency activities of a higher competing priority

e) Court should consider the nature and extent of the interests prejudiced by delay

f) Court need not find any impropriety lurking behind agency lassitude to hold that the agency action was unreasonably delayed

3. Risks in taking agency to court for unreasonable delay

a) even if petitioner wins, the court is going to remand it to the agency and force it to respond; the court will not necessarily tell the agency to adopt a rule one with the outcome the petitioner wants.

b) the agency is not going to be happy about being hauled into court. So it might be more likely to adopt a rule against the petitioner or just reject the petitioners request for RM.

4. Court is going to show high deference to agency.

5. If the agency declines the petition for RM, it’s unlikely the court will overturn the agency’s decision. (Arkansas Power &Light v. ICC, and Spotted Owl v. Hodel)

6. Court will only overturn agency decision if it’s arbitrary and capricious, or a clear abuse of discretion.

a) Even if it is, the court is likely to remand to the agency to explain its reasoning better

b) Court is very unlikely to force an agency to adopt a specific rule.

IV. Formal Rulemaking1. best used for broad questions of policy

2. rarely used

3. Also a good method for CYA

4. more thorough

B. Most often used because Congress has required it

1. If Congress tells an agency it must use §556 and §557, it is telling agencies to use formal rulemaking.

2. Or, if Congress tells the agency it can only make rules “on the record, after opportunity for agency hearing,” then it is telling agencies to use formal rulemaking.

a) Careful, just because Congress requires a “hearing” does not necessarily mean the agency must use formal rulemaking.

b) BUT, the agency (like NLRB) can skip rulemaking and go straight to adjudication because it’s easier.

C. Step 1: publish notice of the formal rulemaking hearing.

D. Step 2: §556 Agencies must hold formal trial-type hearings

1. Agency must give public notice of the time, place and nature of the proceeding.

2. Parties must be allowed an opportunity present witnesses, cross-examine witnesses

3. Parties must have the opportunity to present evidence

4. Proponent of the rule or order has the burden of proof.

5. Adversarial proceeding

6. Rules of evidence apply

E. §557 no ex parte communication is allowed.

1. avoid this by simply disclosing the communication in the record

2. ex part communications violate due process of those not privy to the communication

3. communications that do not affect the final outcome need not be disclosed.

4. If the agency is going to use the info from the ex parte communications, then it must disclose that info. The purpose of disclosure is that the agency’s rule is going to be judicially reviewed based on the record.

5. Parties affected must have a chance to rebut the communication.

F. No undue influence allowed.

1. If pressure forced the Secretary to make a decision based upon irrelevant factors, then it’s undue influence.

2. If the decisions if affected by any extraneous considerations, then it’s undue influence.

G. Step 3: the agency must publish detailed findings of fact and law.

1. a complete statement of conclusions of law

2. a detailed statement of material facts

V. Judicial Review of Formal Rulemaking

A. 3 Step Analysis:

1. Look at the statute giving the agency authority to make rules.

a) Make sure it’s there. Sometimes agencies don’t have RM authority.

b) Frame the boundaries of the agency’s authority.

2. Look at the entire RM record.

3. Discuss the lack of a reasonableness between the facts found and the agency’s choice.

B. The Court considers the entire record

C. The Court upholds the agency’s action if it is supported by substantial evidence.

1. This standard requires the Court to uphold a rule if it find the agency’s decision was “reasonable”

2. Some courts apply the standard to mean that it should uphold the rule if the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.”

D. Court gives deference to the agency.

E. The standard is very similar to the “clearly erroneous” standard.

VI. Informal Rulemaking1. best used for nitty gritty technical issues

2. most common method by far

B. Step 1: Agency publishes a Notice of Proposed Rulemaking (NPRM) in the federal register. (553(b))

1. Must contain the time, place and nature of public rule making proceedings. 553(b)(1)

a) Time= time during which public comments will be received and/or oral comments

b) Place= address where comments should be sent, or where hearing will take place.

c) Nature= informal, notice and comment, or formal.

Step 2: Agency collects comments from interested parties. (553(c))

2. does not require oral hearing

3. written comments are usually accepted for 30-90 days.

4. ex parte communications are acceptable.

5. If the agency relies on the information, it must record the info on the record.

6. Comments received after the public comment period has closed, if relied on by the agency, must also be included in the record.

C. Step 3: Agency publishes final version of the rule in the Fed Reg w/ a clear explanation of the basis and the purpose for the rule.

1. Final rules must be published at least 30 days before it becomes effective. (553(d))

2. as long as the final rule is a logical outgrowth of the original published rule, it’s ok.

3. But, if the final rule “materially alters” the issues or “substantially departs from the terms or substance of the NPRM”, the agency must re-do public notice and comment.

a) Ex: FDA proposed restriction on sugar content in breakfast cereal. End result was a rule that banned flavored milk. Not ok.

b) Ex: FDA proposes rule making vegetarian meals available to students. End result was that vegetarian meals would be the ONLY meals available to students. Not ok.

VII. Judicial Review of Informal Rulemaking

A. 3 Step Analysis:

1. Look at the statute giving the agency authority to make rules.

a) Make sure it’s there. Sometimes agencies don’t have RM authority. Was it supposed to use formal RM?

b) Frame the boundaries of the agency’s authority.

2. Look at the RM record.

a) The “record” in notice and comment rule making = 1) the notice, 2) comments, 3) final rule.

3. Discuss the lack of a rational connection between the facts found and the agency’s choice.

B. Courts may not impose additional procedures on agencies.

1. per Vermont Yankee

C. Courts overturn a rule if it is arbitrary and capricious.

a) Arbitrary and capricious defined in Overton Park.

2. Narrow and deferential review, although it is thorough.

3. A court is not to substitute its judgment for that of the agency.

4. Court will give the agency a chance to explain itself before invalidating the rule.

a) If the court invalidates the rule, it is remanded to the agency.

b) The agency can decide to rewrite the rule or to abandon it

5. The agency must examine the relevant data and articulate satisfactory explanation for its action including a “rational connection between the facts found and the choice made.”

6. Reviewed on appeal for clear error

7. Examples of arbitrary and capricious decisions:

a) The agency has relied on factors which Congress has not intended it to consider (p176)

b) The agency entirely failed to consider an important aspect of the problem (p176)

c) The agency offered an explanation for its decision that runs counter to the evidence before the agency (p176)

d) The agency decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. (p176)

e) The agency has acted inconsistently with past decisions without explaining the basis for the change.

f) FDA succumbing to the sugar lobby and increasing the amount of sugar acceptable in cereals, when it set out to lower sugar levels in cereals to benefit children’s nutrition. More sugar in cereals is not good for children’s nutrition no matter how you look at it.

D. Hard Look Doctrine

1. this is NOT the Court taking a hard look; it’s the Court making sure the agency took a hard look at the facts before making its decision.

2. Court scrutinizes the agency’s reasoning to make certain that the agency carefully deliberated about the issues raised by its decision.

3. Valuable in that it forces agencies to think through the full implication of their policy.

4. Dangerous in that it results in rulemaking ossification; agencies spend too much time anticipating litigious issues and RM becomes cumbersome.

5. May be irrelevant because remedy is for Court to remand the rule to the agency to fix it. Agencies know how to rewrite the rule so that it meets the same goal but satisfies the court.

Hybrid RulemakingE. Involves situations where agency can choose between

formal/informal Rulemaking, but must also follow some other rules like...

VIII. National Environmental Policy Act (NEPA)

A. Agencies must file a Environmental Impact Statement (EIS) whenever their activity might have significant effect on human environment.

1. EIS describes the effect the proposed action will have on the environment and the effects alternative actions would have.

2. This does NOT require the agency to take action based on the environmental impact. This is only a procedural requirement, i.e., the report must be filed.

3. Even if the report indicates dire consequences, the agency can still take the prposed action.

IX. Regulatory Flexibility Act (Reg Flex)

A. Requires agencies to do a Reg Flex Analysis whenever they propose rules that may have significant economic impact on a substantial number of small businesses, organizations, or governments.

1. The analysis looks at how the regulation will impact the small businesses because it (for example)

a) requires them to keep records for a ceratin length of time

b) requires them to eliminate saturated fats from their food

B. Analysis must be published.

1. If the agency fails to comply with this rule, the court may remand the rule back to the agency.

2. In reality, this is not a barrier to rule making. Agencies can always “get through” it.

3. The ethos of caring about small businesses has dwindled.

4. Purpose is not to bury small businesses with procedures.

C. The Reg Flex Analysis goes to the Small Business Administration General Counsel.

a) He writes a report on it.

b) The report goes to the Pres and to Congress.

c) If it “fails” Reg Flex, the rules lives on. There is no teeth.

D. Reg Flex allows for judicial review but zero cases have succeeded on it.

a) the agency need only prove that it went through the steps of Reg Flex.

X. Paperwork Reduction Act 1. Requires the agency to do notice/comment prior to imposing any

reporting or recordkeeping requirement on people.

B. Implicated when agency wishes to impose a recordkeeping requirement on 10 or more persons

1. Record keeping= collection of information requiring answers from ten or more persons

C. Implicated when agency requires the collected info to be made available to the public.

1. includes information collected during investigations

D. Requires agencies to:

1. plan carefully before they collect information

a) Each agency must designate a CIO to review each proposed collection of info for compliance with the Act.

b) Requires agency to publish proposed collection in the federal register.

c) Must certify that the collection is necessary for the agency’s proper functioning, does not unnecessarily duplicate other info, is minimally burdensome.

2. have their proposed collections of information reviewed by OMB

a) public gets 30 days to comment on the proposal

b) OMB has 60 days to approve it. Approvals last 3 years.

c) If the collection is part of a rule, OMB can disapprove it only if the agency’s responses to OMB’s comments are “unreasonable.” (rarely happens)

d) OMB assigns the collection a control number.

(1) Control number must appear on the form the aency makes ppl fill out

E. A violation provides individuals with a defense if/when the gov’t seeks to punish you for not providing info.

1. A violation does not create a private cause of action.

F. Applies to all federal agencies, except:

1. GAO, FEC, D.C. USPS

XI. Executive Order 12866

A. Requires executive agencies to engage in cost/benefit analysis when making a “major rule.”

1. Major rule= $100M adverse impact or more on the entire economy

2. Analysis includes a cost/benefit to all of society.

3. Requires publishing, and at least 30 days of comment.

B. OMB reviews all rules that fall within this requirement.

a) It can sit on a rule that it doesn’t want passed.

b) President controls OMB.

c) The Vice President can spring rules from OMB.

2. No judicial review.

a) Can’t take OMB to court.

XII. Information Quality Act of 2000

A. Purpose is to keep junk science out of government

1. Congress told OMB to issue guidelines about the quantity and quality of information agencies may use to make rules

2. signals an increasing level of congressional delegation.

3. OMB’s standards help an agency defend itself in court, to show that its rules were not arbitrary and capricious.

4. no private right of action to sue if agency does not meet the OMB guidelines

5. at the end of the day, if the agency does use junk science the resulting rule is not going to be thrown out unless it was arbitrary and capricious.

XIII. Negotiated Rulemaking Act1. Good to use when there is a small number of participants.

2. Agency picks a facilitator.

3. Parties enter into negotiations about what the rule should look like. Then, the agency does notice and comment of proposed rule making.

4. Usually done face to face

5. no more than 15 interests represented

6. agency sends someone who has authority to bind the agency

XIV. Exemptions from Rulemaking §553

A. Procedural Rules

1. rules involved military or foreign affairs (a)(1)

a) does not apply to civilian employees of the Dept of Defense.

b) Ex of foreign affairs exception:

(1) During Iran hostage crisis, INS unilaterally changed the rule to require illegally-immigrated-Iranians to leave the US within 15 days of notice, instead of the usual 90 days notice.

2. rules involving agency mgmt/personnel (b)(2)

3. rules involving public property, loans, grants, benefits, or contracts. (b)(2)

a) allowed Nat’l Park Service to change rules governing permits for cruise ships in public parks without using public notice and comment

4. interpretative rules (b)(3)(A)

a) Not technically binding. Unless, the parties go to court and the court finds the agency’s interpretation is correct.

b) Thus, an interpretive rule can reflect what the law is even if it does not make law.

c) If there is no substantial impact, then the rule is likely to be interpretive.

5. statements of policy (b)(3)(A)

6. rules of agency organization, procedure or practice (b)(3)(A)

B. Good cause §553(b)(3)(B)

1. when the agency for good cause finds notice and comment is:

2. impracticable,

a) Most litigated

3. unnecessary,

a) because changes are technical or not material

4. or contrary to the public interest.

a) Because immediate action is necessary to protect the public interest

b) Because congress has mandated a time limit that does not allow for public comment

c) When public notice will allow the regulates to game the system

5. Examples:

a) Coast Guard decides two weeks before fireworks show it wants to set up safety zone around the barge. Decision is based on fire that broke out on similar barge. No time for public notice and comment; high risk of danger to public=impracticable and contrary to public interest.

Agency Adjudication

XV. Anything that isn’t RM or info gathering=adjudication

A. Involves application of the law/agency rules to the particular facts of a particular situation of a particular person.

B. If there is a need to do a significant amount of fact-finding b/c of disputed facts, the court will likely require formal adjudication.

XVI. Formal adjudication

A. Required when Congress uses the words “hearing on the record”

B. By definition, it satisfies the requirements of Due Process.

C. Must give notice to the person who’s rights are at stake

D. Procedures= trial like

1. FRE does not necessarily apply, unless agency adopted it.

2. Hearsay is generally allowed

3. Presentation and cross examination of witnesses

4. Parties appearing may be represented by counsel. §555

5. Party has the right to have the agency issue a subpoeana on his behalf, if the agency has subpoena power. §555

E. No ex parte communications’

F. ALJ presides over the hearing

1. Third-party decision-maker not required.

2. Unlawful prejudice exists only when there is a clear and convincing showing that the decision maker had an unalterably closed mind on matters critical to the disposition of the proceeding.

3. ALJ is usually employee of the agency.

4. Role is to hear evidence, compile record and make recommendation to the agency

G. Conclusion= issuance of an order.

1. Resolves a conflict that has already happened in the past.

2. Order must be based on reliable, probative , and substantial evidence.

3. Agency may disregard the ALJ’s findings of fact and conclusions of law.

XVII. Informal adjudication

A. The APA does not require any particular procedures for informal adjudication.

1. Parties may be represented by counsel. §555

2. Party has the right to have the agency issue a subpoeana on his behalf, if the agency has subpoena power. §555

B. Even if formal adjudication is not required, a hearing might still be required.

1. Ex: immigration proceedings must comport with due process, which requires a hearing. When it’s unclear, ambiguity should be resolved in favor of using formal adjudication procedures.

C. Due Process requirements must still be met if triggers are in place.

XVIII. Due Process requires some sort of a hearing when a person’s property or liberty rights are implicated based on individualized decision-making.

A. Individualized deprivations require due process, but policy-based deprivations affecting a class of individuals do not.

B. Also triggered by the “stigma plus” test

1. When gov’t harms a person’s reputation plus the loss of liberty/property, due process is triggered.

C. Due Process requires: Notice, opportunity to be heard, neutral decision maker, and may be represented by counsel.

D. Hearing/procedures must pass the Matthews test

1. private interest

2. risk of erroneous deprivation

3. government interests

E. Must have an impartial judge, but not necessarily a third party judge.

1. Heads of agencies may be involved in directing the investigation, prosecution and adjudicatory decision.

2. Combining functions does not necessarily result in biased decision. §554(b)

a) Unless the decision maker speaks out in public about his/her prejudgments, there is often insufficient extrinsic evidence to prove bias.

F. No ex parte communications.

1. Remedy= disclose communication on the record and give other party an opportunity to respond.

XIX. Judicial review of agency adjudication §706

A. "substantial evidence" review for formal adjudication

1. much more meaningful than “arbitrary and capricious” review of rulemaking.

2. review the whole record

3. Agency must give a written explanation of why it disagrees w/ ALJ

B. “arbitrary and capricious” review of informal rulemaking

1. there is no record to examine

C. Analysis

1. Did the agency have statutory authority to do what it did?

2. Did it follow all the procedures required?

a) Statutory, agency’s own rules,

b) Did it act consistently with the way it’s been acting in the past?

3. Did it comport with Due Process?

D. In both formal and informal adjudication, the agency gets a lot of deference...

1. presumption of agency’s lawfulness

E. ...except when it comes to Due Process.

F. Retroactivity is not per se invalid.

1. It’s invalid if the party has relied on the agency’s interpretations in the past.

2. Abrupt departures from established practices not ok

3. If the retroactive order brings heavy burdens, not ok.

a) Starts to look like an undue taking

4. If the agency was forced to make the change based on a new law passed by Congress, it’s ok.

a) Everyone was on notice based on the new law

When to use Rulemaking vs. AdjudicationA. Courts prefer agencies to use rulemaking, but ultimately the

agency decides which to use.

1. NLRB does everything by adjudication. OK.

B. There are no Sup Ct cases and only one Circuit court case where an agency’s decision to use RM/Adj was reversed.

I. When an agency MUST use adjudication

A. Agencies that do not have rulemaking authority can only implement policies through adjudication.

II. When an agency MUST use rulemaking

III. Benefits of Rulemaking1. Allows an agency to issue a policy in one swoop instead of

adjudicating the same issue over and over.

2. Quicker and cheaper than adjudication.

3. Rulemaking “trumps” adjudication.

a) Rules can not be overruled by agency adjudication.

b) It establishes “law”, not just precedent. Therefore the law must be applied to all parties in an adjudication. Whereas, parties in an adjudication may convince the court that the “precedent” from an adjudication does not apply to the current facts.

IV. Benefits of Adjudication1. Sometimes it’s easier to figure out what the rule should be by

applying a specific set of facts.

2. Agency can choose the “best” defendant.

3. Proceedings are not public, so they are less subject to outside pressures or criticism.

Judicial Review

V. Scopes of review, generally

A. Agencies get more deference when they are dealing with an issue that they are experts in.

B. Agencies get less deference when they are dealing with an issue the Court is an expert in.

C. Substantial evidence review is generally used to evaluate an agency’s finding of fact when they are developed in a formal record.

D. Arbitrary and capricious is used when there is no record and/or no other test specified. It’s the default.

I. APA §706(2)(E) is used to review all formal agency actions.

A. Formal RM is so rare, that, in practice, this regulates only agency adjudication.

II. To determine if an issue is a question of fact or of law

A. First: Did Congress define the term?

1. look at legal sources, statutory language, structure of the statue.

B. If yes: it is a purely legal question

2. and the court will apply the legislative definition.

C. If no: deference will be given to the agency’s definition of the term.

3. the question is one of specific application of a broad statutory term and

III. In mixed questions of law and fact

A. First: The reviewing court reviews the facts found by the agency and determines whether the conclusions have “warrant in the record”.

B. Second: the reviewing court review’s the agency’s explanation for its decision to decide if the decision had a “reasonable basis in law.”

C. Although, many courts do not single out the issues and use the overall “substantial evidence” standard of review.

IV. Review of Questions of Law4. A person might claim an agency’s rule or order is unconstitutional.

a) Court will try to interpret the statute so there is no constitutional issue.

5. A person might claim an agency’s rule or order is beyond the scope of its statutory authority.

a) Use the Chevron two step

6. A person might claim the agency’s interpretation of law within a rule or order is wrong.

7. A person might argue that the agency did not follow the procedures required by law.

V. Use the Chevron two step in Questions of Law regarding an agency’s interpretation of it’s own statutory authority or it’s own rules.

8. Because the agency “knows” the statute inside and out. Whereas the court is looking at it for the first time.

E. Chevron two step=

1. has the Legislature expressly forbid or endorsed the interpretations the agency is using?

a) Given the plain language

b) Given the leg hist

c) Canons of construction

2. is the agency’s interpretation reasonable or permissible?

a) Thus, agency wins when the statute is ambiguous.

b) Agencies like to create ambiguity so they can read more authority into their rules.

VI. Substantial evidence review of questions of fact made in formal rulemaking or adjudication.

F. Substantial evidence test in Universal Camera:

1. Court looks for findings in the record that a reasonable person would accept.

2. Court looks at the whole record

3. court weighs to some degree the agency’s and ALJ’s disagreement over demeanor

G. Court looks at the entire record

1. The Court asks whether a reasonable mind might accept the evidentiary record as “adequate” to support the agency’s decision.

H. the Court is reviewing whether or not a reasonable person could find the fact in question beyond a preponderance of the evidence.

1. Agency’s must use the preponderance of evidence standard to find facts

I. A court may find an agency action invalid

1. if the decision is not supported by substantial evidence.

A. The reviewing court may set aside an agency decision

2. when it cannot conscientiously find that he evidence supporting the decision is substantial, viewing the whole record including evidence opposing the agency’s decision.

B. A more deferential, less rigorous, review than “clearly erroneous.”

3. This is meaningful review, not a rubber stamp.

J. An agency may set aside ALJs decision

1. as long as it articulates sound reason, based on the record, for its contrary evaluation of the testimonial evidence.

2. Agency has de novo review of ALJ decision.

K. When agency findings conflict with ALJ findings

1. Testimonial inferences: go with the ALJ

a) ALJ findings based on witness demeanor/credibility is given weight, because the agency and the reviewing court can not get that info from the cold record.

(1) Although, ALJs findings are not conclusive.

b) ALJ findings are part of the “whole record”

2. Derivative inferences: go with the agency

a) Agency still has content expertise

b) Agency still has the authority vested in them by Congress.

3. BUT, if derivative inferences are discredited via testimonial inferences: go with the ALJ.

L. The Court will scrutinize findings of fact related to a constitutional inquiry

VII. Arbitrary and capricious review of questions of fact or judgment in informal rulemaking or adjudication.

M. Overton Park sets the rules for arbitrary and capricious review:

1. Court should uphold decisions that are based on the correct statutory factors.

2. court upholds decisions where there is no ‘clear error of judgment”

3. court upholds decisions that are adequately explained.

VIII. APA §706(2)(F) de novo review is used in two circumstances:

A. 1. When the action is adjudicatory in nature and the agency fact finding procedures are inadequate.

B. 2. Independent judicial fact finding occurred on issues that were not before the agency but that were raised during the proceeding to enforce a nonadjudicatory agency action.

VI. Factors to consider when you are deciding whether or not to go to court.

A. Do you have the resources to see it thru to the end, considering your opponents and complexity of the issue?

B. What’s the remedy? If you win, what changes besides the agency hating you.

C. Is the rule “laugh out loud” bad?

D. Attorney’s fees go to the winner, might help the plaintiff seek more law suits if it wins.

E. Winning helps show your client has the ability to win so it gains political power and paying members.

Reviewability

I. Prima Facie case

A. Prove the agency has taken action.

B. Show Standing

1. Show the person has suffered a legal wrong OR

2. that he was

a) 1) adversely affected or aggrieved (injury in fact)

b) 2) by agency action

c) 3) within the meaning of the statute –the injury falls within the zone of interests that the staute was designed to protect

C. Show review is not precluded.

D. Show a cause of action.

3. in the original statute?

4. injury in fact and Zone of interests test

5. Finality

6. Exhaustion of remedies

E. Show ripeness.

II. §551= Agency Action7. Discrete and circumscribed actions

8. promulgating a rule (leg or non-leg)

a) A “rule” = an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy §551(4)

9. Failure to act §551(13), last clause

a) Failure to take agency action

b) Omission of an action

c) Not the same thing as a denial

10. Order §551(6)

a) Final disposition in a matter other than rule making

11. License §551(8)

a) A permit, certificate, approval, registration, charter, membership, or other form of permission.

12. Sanction §551(10)

a) (A) Prohibition , requirement or limitation affecting the freedom of a person

b) (B) Or, withholiding relief

c) (C) Or, imposition of a penalty or fine

d) (D) Or, destruction, taking, seizure, withholding of property

e) (E) Or, assessment of damages, reimbursement, restitution, compenstation, costs, charged, or fees

f) (F) License revocation

g) (G) Other taking or compulsory action

13. Relief or the equivalent or denial thereof §551 (11)

a) Recognition of a claim, right or immunity

b) Grant of money, assistance, license, authority, exemption, exception, privilege or remedy

c) Taking beneficial action on the application or petition of a person

F. Failure to act

1. If the agency isn’t doing anything, it’s Congress’ job to kick them in the butt. Not the courts. Congress can pass statutes to do that.

2. It’s TOUGH to get in on this unless agency is required to act by a statue by a specific date.

3. EX: EPA waiver to CA is delayed. If it doesn’t issue the waiver, can CA sue? Maybe, if Clean Air Act requires it.

III. Standing

G. Injury in fact

1. concrete and particularized. No general grievances allowed.

2. procedural violations are not enough. (Lujan)

3. but, if there is an injury resulting from a procedural violation then it can suffice.

4. interest in fairness of proceedings is sufficient to create standing

5. informational injury is sufficient, such as when a person requests a document under FOIA and is denied. (FEC v. Akins)

6. financial injury will work

7. If injury has not yet occurred, there must be a likelihood of injury.

8. harm only to animals is insufficient

H. Redressability

1. We need parties who take adversarial positions.

2. Result is usually remanding to the agency

3. It is sufficient that “some” of the plaintiff’s harms are alleviated, even if not “all” of the harms are alleviated. (EPA v. Mass)

I. Causation

1. did the agency action cause the injury?

2. must be able to point to a discrete agency action, general program management is not sufficient.

3. plaintiff’s harms must be “fairly traceable” to the agency action.

IV. Exceptions to reviewability §701(A)

A. Presumption of reviewability

4. APA was written to presume judicial review is available to those adversely affected or aggrieved by agency action.

5. Only upon a showing of “clear and convincing” evidence of a contrary legislative intent should the courts restrict access to judicial review.

a) Presumption is overcome when Congressional intent to preclude review is fairly discernible in the statutory scheme

b) Clear and convincing in the traditional evidentiary sense is not the test.

B. Statue may expressly preclude review §701(a)(1)

6. Relatively rare

7. Usually limit review to particular circumstances rather than blanket prohibition of review

8. Statute may not preclude review of constitutional claims

C. Statute may implicitly preclude review

9. Abbot Laboratories v. Gardner p447 said pre-enforcement review was ok.

10. Use structure of the statutory scheme, objectives, leg history and nature of the administrative action involved.

11. When Congress’ intent is “clear and convincing” that there should be no judicial review.

12. Omission may preclude review

a) EX: Milk Act gave handlers and producers the ability to get judicial review but did not give consumers the right to judicial review.

b) The preclusion issue turned on whether Congress intended for the class to be relied upon to challenge agency disregard of the law.

D. Agency action is committed to agency discretion by law §702(a)(2)

13. Very narrow exception

14. Applies only where statute is phrased in such broad terms that there is no law to apply

15. Even if Congress did not affirmatively preclude review, this section precludes review if the statute is draw so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.

16. ****An agency’s decision not to prosecute or enforce is a decision generally committed to an agency’s absolute discretion. (p456)

a) 1) B/c agency must decide whether violation has occurred, where to spend agency resources, likelihood of success, overall policies. This is best left to the agency.

b) 2) When agency does not prosecute, it is not infringing on anyone’s rights so the court is not needed to protect anyone’s liberties or rights

c) 3) non-enforcement decisions are akin to prosecutorial decisions not to indict, which traditionally involved executive control and judicial restraint.

(1) Agencies., like prosecutors, make many decisions every day about when to prosecute and when not to.

(2) Typically based on a consideration of the specific facts in each instance

17. Constitutional claims may not be precluded, unless Congress expresses intent to do so is clear.

a) This is a heightened standard

18. Spending decisions from lump sum appropriations are usually left to agencies.

a) Ex: Indian Health Centers p467

V. Cause of action

A. First, look for a cause of action in the statute that gives the agency authority.

19. May tell you what to do when you disagree with the agency head.

20. If you don’t fit within that statue’s cause of action, you don’t get to expand it within §702.

21. Court infers that Congress intended only for that specific type of judicial review.

a) Like CNI v. Block (milk cases) where Congress intended to let producers/handlers sue, but not to let consumers sue.

22. §703 allows Plaintiff to ask for declatory judgment or injunctive relief if the cause of action is in the relevant statute.

a) No money damages. If you want money you must use Tucker Act and go to Federal Claims court.

J. If there is no cause of action in the original statute, then look to §702.

1. allows any person to bring suit who is:

2. adversely affected or aggrieved by agency action

3. Or, who has suffered a legal wrong because of agency action.

4. this test is basically the same as the inquiry under “standing”

B. §702 adds the Zone of interests test: Was the injury in fact the type the statute was designed to prevent?

5. What interests was the statue designed to protect?

(1) Injury in fact does not necessarily mean one is within the zone of interests

(2) The relevant statute is the statute whose violation is the gravamen of the complaint

a) What was Congress’ intent?

(3) We don’t need Congressional intent to benefit this particular plaintiff

(4) Focus is on the interest, is it arguably within the zone Congress intended to protect?

b) What does the text tell us?

c) What does the legislative history tell us?

(5) Ex: Postal Service was originally created to ensure postal servies to the citizenry, not to ensure employment for postal workers. Therefore, employees do not have standing.

6. Were this plaintiff’s affected interests within the zone?

a) When an agency regulates a person, that person can always challenge the lawfulness of the regulation.

b) The zone of interest test only comes up when the challenger is otherwise injured by the agency action ( a 3rd party)

(6) Ex: Credit union case. The agency allowed fed credit unions to expand their memberships. The credit union competitor sued. The purpose of the statute waast to restrict who could belong to credit unions. Therefore, the competitors had the same interest as that statute had. Competitors had standing. P473

c) This plaintiff must have been contemplated by the statute as someone who could sue

d) Credit Union test: As long as the plaintiff is “arguably” w/in the zone of interests, he’s in. A broad view.

K. If you have no cause of action, you can get into court by disobeying the agency’s order/rule.

1. Become a defendant instead of a plaintiff.

VI. Finality

A. Finality

2. §704: agency action must be final before plaintiff can get judicial review.

3. There must be no other adequate remedy

4. Use 704 when the statute does not tell us what the judicial review will be.

5. Test for finality:

a) whether the challenged action is a definitive statement of the agency’s position

(1) Has the agency completed its decision making process

(2) Is the decision binding?

(a) If if the statement is not a Legislative rule, if the agency treats it like one, makes decisions from it, purports it to be binding to other parties, then it’s binding.

(3) Is it subject to change?

(a) Decisions that are tentative or interlocutory are not final.

(b) Although, just because laws may change doesn’t preclude them from review. This is really examining whether the agency is “done” making it’s decision.

(4) Is it issued by a subordinate or by an agency head?

(5) Is is formal and published?

(6) Did it come from HQ or a field office?

b) 2. Whether the actions have the status of laws with penalties for noncompliance.

(7) Decisions made by agency heads is presumptively a final action, absent evidence that it is tentative

(8) Opinions relating to one specific scenario are usually not final—whereas, opinions with widespread, industry-wide applicability are more likely to be final.

c) whether the impact on the plaintiff is direct and immediate

(9) The decision is one from which legal consequences will flow.

(10) Is the decision very limited to one particular factual situation, and thus, not broadly applicable?

d) whether immediate compliance was expected

(11) Does the opinion/decision rise to the level of expected conformity

e) The decision is one by which rights or obligations have been determined?

(12) If public notice and comment was used, it’s more likely a final action.

6. Does the agency have a description of what is or is not?

7. Not final:

a) Ruling of a subordinate official

b) Tentative rulings

c) Informal, advisory opinions

VII. Exhaustion of mandatory administrative remedies is required for finality.

A. If you don’t exhaust your mandatory remedies you may not get a remedy.

1. Per Darby v. Cisneros, §704 means: If the review w/in the agency is mandatory based on a statute or rule, then the agency action is not final. If the review w/in the agency is optional, then the agency action is final.

B. If you lost your time frame to exhaust your admin remedies, your lack of exhaustion will be fatal.

C. Exhaustion of remedies is not necessary where the individual’s interest in immediate judicial review outweighs the gov’t interest in efficiency and autonomy. THREE scenarios, per Madigan:

1. If exhausting remedies would create undue prejudice.

a) Ex: administrative remedy has an unreasonable or indefinite time frame.

2. You do not need to pursue administrative remedies if the agency is not authorized to provide the type of remedy you are seeking.

a) Ex: Prisoner is seeking money damages for Dept of Corrections’ failure to treat his medical condition. The agency’s administrative remedies do not offer monetary relief. Therefore, he can bring his claim even though he did not exhaust the agency’s administrative avenues of relief.

3. when the agency has been shown to be biased or has otherwise predetermined the issue before it.

D. You do not need to exhaust optional remedies.

VII. Ripeness

E. Key: fitness of the issue for judicial review

1. Assuming you’ve got standing, you need to satisfy ripeness.

2. Qualitatively eval how much you are hurt and if this issue is ready for judicial review

a) Do we need more facts? If so, it’s not ripe.

F. Abbot Labs TEST:

1. Fitness of the issues for judicial decision

(1) Take the point of view of the court hearing it.

b) Would judicial action inappropriately interfere with administrative action?

c) Would the court benefit from further administrative action?

d) Is conformity expected?

e) Published rule?

f) Made via public notice and comment?

g) Are there factual issues to hash out, or just a question of law? We need a legal issue.

(1) Would the court benefit from further factual developments.

h) Legal interpretation of the statute is more likely to be fit for judicial review

i) Has the law been applied enough times to know what the law IS?

2. Hardship to the parties of withholding court consideration.

(1) Take the point of view of the parties disputing the issue.

b) Key: would delayed review cause hardship to the plaintiffs?

(1) How immediate?

(2) How direct?

(3) What alternatives are available in following/not following the rule—Hobson’s choice?

(4) Horns of the dilemma

(5) Every dilemma does not mean the issue is ripe.

G. Recent cases

1. Court has been tight fisted about these issues.

2. P508- forestry case not ripe

a) Wait until the agency has actually let clear cutting happen.

VIII. §706 gives fed court authority to compel agency action unlawfully withheld or unreasonably delayed.

A. Courts can only compel action that is legally required.

B. Court can compel an agency to perform a ministerial or nondiscretionary act.

3. It can tell the agency to DO something, but it cannot tell the agency HOW it should do the thing.

a) Ex: fed law required the FCC to establish regulations witing 6 months of the Telecommmunications Act of 1996. The court can make a judicial decree that the FCC promulgate the regulations but it can not tell the FCC what the regulations will be.

C. Sufficient claims

4. Plaintiff must assert that an agency failed to take a discrete agency action that it is required to take.

5. When an agency is compelled to act within a certain time frame, the court can compel the acty to act but has no power to specify what the action must be.

6. When plaintiff claims agency has decided not to issue a rule, the court can review that decision.

a) Ex: American Horse Protection Asso v. Lying.

b) Decision not to issue a rule is different than decision not to enforce b/c 1) these decisions are much less frequent, 2) and tend to turn on issues of law rather than issues of fact and 3) subject to special formalities including public explanation.

c) The APA allows interested persons to petition for issuance of a rule and requires agency to give a brief statement of the grounds for denial. This suggests Congress expected agencies to explain their actions re: no rule making.

D. Insufficient claims

7. General deficiencies in compliance lack specificity requisite for an agency action

E. Purpose

8. Keep courts out of policy disagreements because they do not have the information or the expertise to resolve them.

9. The court would have to create the remedy rather than leaving the agency to do it

Non-Delegation Doctrine

I. Has Congress given an agency so much rulemaking discretion that it has abdicated its responsibility to exercise “all legislative powers” granted in the Constitution?

A. This line of cases concerns federal statues that delegate “quasi-leg” power.

1. The power to make rules that have a legal effect on people’s everyday conduct.

B. Today’s TEST : Congress may delegate legislative power so long as it gives the agency an “intelligible principle” to follow in exercising that power.

1. First articulated in J.W. Hampton v. US (1928) p523

a) Congress delegated power to the Pres to revise some tariffs whenever it was necessary to equalize the costs of production in the US and the principal competing country.

b) The Court accepted this delegation of power b/c Congress gave the President an “intelligible principle” to follow in making the determination.

c) The purpose of the intelligible principle was to give the Court some way of evaluating whether the Pres had exceeded his authority.

2. Requires agencies to make decisions which are consistent with the general policies defined by Congress.

C. Since the 1930’s, the Court has approved all the legislation it has reviewed for compliance w/ the nondelegation doctrine.

1. Example: Whitman v. American Trucking Associations

(1) EPA was authorized to promulgate regulations establishing “national ambient air quality standards”, set at a level “requisite to protect the public health” with an “adequate margin of safety.”

(2) The resulting standards burdened trucking companies. Instead of challenging the rule, they argued EPA didn’t have the power to make the standard in the first place.

b) Scalia looked at the words of the statue.

(1) He does not look at the leg history.

c) He liked the words “discrete set of pollutants”

d) He really liked the word “requisite” because he thinks it means “sufficient, but not more than necessary.”

e) The words in the statue, although broad, sufficed as an “intelligible principle.”

f) Congress must limit the discretion the agency is allowed to exercise.

g) Result: Congress did not delegate power in this case.

h) Formalist camp won the day

D. Probably very few things Congress could do to violate this principle with today’s court.

1. But the issue isn’t dead because even when Congress gives an “intelligible principle” the agencies sometimes try to push the envelope to give themselves more power beyond the principle. (EX. Is the next case)

2. Industry associations bring these suits all the time

E. The Court will interpret statutory grants of power very narrowly, if necessary to survive a non-delegation test.

1. Example: Benzene cases p532

a) Congress gave OSHA the power to regulate toxic materials workplaces.

b) OSHA interpreted the statue to mean that it could regulate toxic materials in “any” workplace.

c) This interpretation would have violated the nondelegation doctrine.

d) So the Court told OSHA it only had the authority to regulate toxic materials in workplaces where there was a significant safety risk from exposure to toxic materials.

2. Example: International Union v. OSHA p533

a) Congress told OSHA to make standard that were reasonably necessary or appropriate to provide safe or healthful places of employment.

b) OSHA interpreted that power for itself so broadly that the Court found the interpretation was unreasonable.

c) Industry plaintiffs said OSHA exceeded its discretion b/c the intelligible principle required OSHA to do a cost-benefit analysis of the rule before enacting it.

d) The rule required all equipment in all industries to put lockout/tagout tags on nearly every power source. Would have been hugely expensive to plaintiffs.

e) OSHA felt it didn’t need to do an analysis and could enact any rule it felt was “feasible.”

f) The D.C. Circuit court’s solution was to remand the case to OSHA to make a reasonable interpretation of the statute.

(1) This is in conflict with the Sup Ct’s decision that an agency can not “cure a constitutional defect but adopting a narrower interpretation of delegated powers.”

(2) But it’s ok in this case because the court isn’t asking the agency to cure a rotten regulation, they are asking the agency to avoid a constitutional question

II. ANALYSIS

A. First line of attack: try to show the statute does not have an “intelligible principle”

1. But, don’t spend too much time on it because the Court’s do not want to hold the statute un-Constitutional.

2. Court is unlikely to say that Congress has illegitimately delegated power.

3. Court doesn’t want to face constitutional questions.

B. Second line of attack: Secretary’s/agency’s discretion does not allow him/it to apply the law in this way.

1. focus on exactly what the statute allows and contrast that with that the agency/SEcty is trying to do.

2. The agency/Sectary discretion must have limits b/c of the non-delegation doctrine.

3. The discretion in this case has exceeded those limits.

4. Show how the original purpose of the statue is not being served by the current application.

5. If the court is convinced the agency is limited by the purpose of the statute, it would remand the decision to the Secretary perhaps w/ instructions to follow the intent of Congress as described in the court’s opinion.

a) I.E.- the best you can do for the city is get a remand with a strong suggestion.

b) If the Secretary ignores the court then the court might be forced to look at the Constitutionality of the rule, or to look a the interpretation of the rule to see if it matches Congress’ intent.

c) Case may become a face off, and the court usually wins.

6. If you can’t find Congress’ intent in the statute, look in the legislative history.

7. Tip: Courts see statutory authority as a fence around discretion. Convince the court the agency/Secretary has broken through the fence.

III. Has Congress given an agency so much adjudicatory power that it has undermined the federal courts’ authority to exercise the “judicial power of the United States”?

A. This line of cases concerns federal statues that delegate “quasi-jud” power

1. the power to apply the law to particular cases and issue orders affect the rights of identified parties.

B. Occurs when Congress reaches into the judicial branch, takes a power, and relocates it somewhere else.

C. Key Question:

1. Do the Article III courts still retain some control over the adjudication, or does the delegation completely cut out Art III courts?

2. bottom of p543: “does the congressional scheme impermissibly intrude on the province of the judiciary?”

3. Is Congress just making a power grab? Or is it trying to exercise its legitimate power?

D. Crowell v. Benson p540

1. Famous for distinguishing btwn public rights and private rights

2. Public rights= those that people have against the government.

a) Congress can completely eliminate judicial review of public rights.

b) Congress created the public right by statute, therefore it’s ok if Congress requires that public right to be adjudicated outside an Article III court.

(1) The public right wouldn’t exist at all if Congress had not given the plaintiff the permission to sue the gov’t. So, it can make the rules related to that litigation.

c) Congress hasn’t taken full advantage of this power; agencies are usually subject to judicial review under APA §706

3. Private rights= those that individuals have against another individual.

a) Congress may not eliminate review of private rights.

b) But, Congress may create a deferential scope of review.

E. Court rejected public/private rights distinction in Commodity Futures Trading Commission v. Schor (19860 p541

a) CFTC was engaged in rulemaking, and enforcement, and adjudicating complaints between customers and traders.

b) Schor was a customer of a broker. He filed a complaint that his broker owed him money. Claim arose under federal statutes.

c) His broker filed a compulsory counter claim. Claim arose under state contract law. Only Article III judges are allowed to adjudicate these claims. This is the issue. Is the CFTC allowed to hear this claim?

2. Court said Article III has two purposes:

a) To protect litigants rights to have their claims decided before judges who are free from influence by other branches.

b) To protect separation of powers.

3. As to the first purpose, Schor waived his individual right to an Aritlce III judge by filing his claim with the CFTC instead of in federal court.

4. As to the second purpose, it was ok because

a) This scheme did not give the CFTC a significant slice of judicial business.

b) The CFTC’s decision was reviewable in federal court.

c) The decision on whether or not the CFTC would hear the case was left up to the parties (rather than Congress mandating it).

d) It was efficient.

e) The claim was closely connected to claims that the CFTC had Jx to hear.

5. Functionalists have a hold of the rules in this area.

6. Dissenters were really pissed off b/c Congress was taking over power from the courts

7. O’Conner opinion was important b/c w/out the legitimizing arguments, most ADR would be out the window b/c technically it’s an alternative from the courts. ADR essentially takes judicial power out of the judicial branch, and nobody wants ADR to die. There is more at stake here than just the commodities future trading issue.

a) Court based concerns: independence of the judiciary. Is it threatened by the delegation of adjudicatory powers to agencies? We have history of Congress fooling around with Jx of district courts. She’s worried judicial branch will have most of its functions in controversial functions shifted to some exec branch agency. Judiciary is the source of neutral even handed justice. If politically controversial things are taken away from judiciary, it loses integrity and authority. EX: Congress gives ICE total authority to hear all claims by undocumented aliens, instead of going to court.

b) A little is ok but too much is intolerable

c) If legislature moves powers on a lark for political purposes, its not ok.

IV. Note: Constitutional issues do not arise when Congress delegates exec power to an independent agency.

Legislative Veto

I. Definition

A. Congress would delegate authority to an agency, but reserve the right to veto/disapprove the agency’s discretionary decisions.

II. Reasons why it’s illegitimate

A. Violates requirements of bicameralism and presentment

1. INS v. Chadha (1983) p552. House of Reps vetoed AGs decision not to deport Chadha.

a) Art I §1: All leg powers are vested in Senate AND House. (proscribes bicameralism)

b) Art I §7 cl2: The House and Senate pass bills that must be approved by Pres before it becomes Law. (proscribes presentment)

c) House action was legislative in purpose and effect b/c it altered the rights, duties and relations of persons including Chadha, AG, exec branch---all outside the legislative branch.

d) This action was not otherwise expressly authorized by the constitution.

e) Congress must abide by its delegation of authority until the delegation is legislatively altered or revoked

f) Dissent: this gives Congress a Hobsons choice: either don’t delegate authority to agencies or give all authority to executive branch/independent agencies. Constitution doesn’t authorize or prohibit the veto, and it’s use is consistent with the ideas in Art I so it’s ok.

III. Congress may not veto rulemaking

IV. Corrections Day

A. In the House of Reps

2. Fast tracks bills w/ 60% majority vote

3. Limited time for debate, one motion to recommit. Schedule set by Speaker.

4. Congress and Pres have no comparable fast track

5. If bill fails, it can still be considered under the normal House rules.

V. Congressional review of major rules

A. Agency required to

6. Submit new rules to Congress and Comptroller General

7. Submit copies of cost-benefit analysis and analysis under the Unfunded mandate Act.

B. Timing for rule to take effect.

8. Rule takes effect 60 days after the info is submitted to Congress.

9. Or, 60 days after the rule is published in the federal register

10. Whichever is later.

C. Major rules

11. Have economic impact of $100M or more per year

12. Or have significant regulatory impacts.

13. President can immediately implement the rule, abrogating the 60 day rule, if he deems it necessary b/c of an imminent threat to health or safety or other emergency.

D. fasttrack disapproval.

14. Timing

a) If a joint resolution is introduced opposing the rule within 60 days of the day the agency submits the information,

b) The Senate has 60 session days

c) And the House has 60 legislative days

d) To employ the fast track procedures.

15. Process

a) Resolution may not amend the rule, only disapprove it.

b) Senate debate limited to 10 hours

c) If disapproval is passed by both houses, and signed by Pres, the rule does not go into effect.

d) If the rule went into effect b/c of the 60 day rule, it ceases being in effect.

E. Practical use

16. Congress has not overturned any rule submitted to it.

17. The only fasttrack disapproval was used to submit a disapproval, and vote it down, so that the rule would take effect sooner rather than later.

VI. Appointment power

A. Congress power grabs are unconstitutional.

18. Appoints agency heads but retains power to remove them

19. Limited the Pres’ power to remove agency heads

20. Given itself authority to veto administrative orders and rules.

B. Constitutional authority

21. Art II: vests power to appoint “Officers of the United States” in the president.

a) Officers of the U.S.= any appointee exercising significant authority pursuant to the laws of the U.S.

(1) Officers perform adjudicative functions

(2) Officers peform enforcement functions

(3) Officers perform legislative functions

22. Congress does not share this power through the “necessary and proper” clause to appoint officers.

a) This clause gives it the power to appoint it’s own officers only.

b) They may appoint officers whose functions are limited to investigative or informative nature. But it may not appoint officers who engage in adjudicate, leglislative or enforcement functions b/c those appointments are reserved exclusively to the President.

C. Inferior officers

23. Congress may appoint inferior officers

24. Congress may allow the Pres, the Courts, or Heads of Depts to appoint inferior officers.

a) Per the Appointments Clause: ...but the Congress may by Law best the Appointment of such inferior officers, as they think proper, ...

b) Gives Congress wide descretion

25. Definition (per Morrision v. Olsen)

a) Subject to removal by a superior Exec Branch official.

b) Role is limited to performing certain limited duties.

c) Role is limited in Jx (as in independent counsel)

d) Role is limited in tenure.

e) Ex: Independent counsel, appointed by court, as authorized by Congress.

26. Independent Counsel Act used in Morrison v. Olsen died out, was not renewed after the Kenneth Starr debacle.

VII. Removal

A. Presidential authority to remove officers is inferred from two constitutional provisions

27. Art II §1,3: President is required to “take care that the Laws be faithfully executed.”

28. Myers v. U.S.: The power of removal is incident to the power of appointment, not to the power of advice and consent.

a) The Pres must have ability to control the interpretation of the Constitution by his subordinates.

B. Congress does not have the power to completely prohibit the President’s ability to remove or to give itself power to remove.

29. Morrison v. Olsen

B. Congress may not appoint heads of executive agencies

C. President does not have power to fire heads of independent agencies.

D. Congress may limit removal power when officer needs independence from the President

1. Morrison v. Olsen

2. Humphrey’s Executor: Where the agency is an administrative legislative agency, the Pres has no power to remove b/c the agency is “not an arm or an eye of the executive.” The FTC needs to be independent from the exec branch, so the officers can not serve at the will of the Pres.

VIII. Legislative Removal

A. congress can not vest removal power in itself

3. Bowsher v. Synar: Congress may not retain the power to remove an executive officer; once it appoints the person the power it gone.

Inspections and Searches

I. Two questions:

A. What gives the agency the authority to inspect/search?

B. What are the legal limits on the agency’s authority?

II. Authority to inspect

A. Comes from a statute or regulation

B. Per se valid searches

4. Occur in a public place, open to the public

5. takes place in a residence or business under a warrant, issued based on a showing that the inspection comports with reasonable legislative standards

6. Warrantless search conducted with consent.

7. Warrantless search of a pervasively regulated business under an inspection program that meets the 3 part test

a) By engaging in the business you have implicitly consented to the regulations and therefore to the searches

8. Warrantless search justified by an emergency

9. Takes place under a warrant, issued based on the probable cause that the inspection will uncover evidence of statutory or regulatory violations.

III. Warrants

A. If no consent, agency needs a warrant.

B. To get a warrant, inspection must comply with “reasonable” administrative or legislative standards.

10. Two prong Barlow test:

(1) Is the plan based on specific, neutral criteria?

(a) Is it calculated to result in unbiased enforcement?

(b) Warrant application must contain an explanation of the plan. But the court may not inquire into the facts that preceded creation of the plan.

(2) Was the company/individual selected based on this specific, neutral plan?

(a) The warrant application must include a description of how the procedure used resulted in selection of a particular company.

C. OR, a warrant can be based on probable cause that an inspection will reveal a violation of a regulatory requirement.

11. Based on specific evidence of an existing violation

a) Like an employee or customer complaint

12. BUT, the agency is limited in scope only to areas related to that particular violation.

a) If that search reveals more widespread problems, the agency needs to get a second search warrant for a full-scope investigation.

V. Warrantless searches are ok during emergencies.

A. Necessary to protect life, liberty or property.

1. Ex: EPA finds out a business is dumping toxins into the drinking water supply.

VI. Warrantless searches of closely regulated industries is ok, but we need to do a 3 part test to determine constitutionality:

1. closely regulated industries=

a) auto dismantlers

b) mining companies

c) liquor dealers

B. do the searches serve a substantial gov’t purpose

C. are the warrantless searches necessary to achieve that purpose

D. and, does the statue authorizing the searches provide protections substituting for a warrant like notice to owner, limitations on scope, limitations on discretion of searcher.

VII. Illegal inspections1. Occurs when the search goes beyond the scope of the warrant

2. Agency can be sued under tort law for trespass

3. Agency can be sued for 4th amendment violation

4. Evidence is excluded at criminal trial but may be used in civil trials, deportation hearings, and parole revocation hearings.

VIII. Special needs searches1. A search unsupported by probable cause may be reasonable when

special needs beyond the normal need for law enforcement make the warrant and probable-cause requirement impracticable.

2. Examples

a) Gov’t may compel blood/urine tests of railroad employees involved in major accidents

b) RR may also require breath/urine tests of ees who violate safety rules

c) Schools may conduct suspicion less drug testing of students involved in extra-curricular activities

d) Probation officers may conduct warrantless searches of the person or the residence if he believes, based on reasonable grounds, the parolee has contraband.

e) Hospitals may NOT screen un-consenting pregnant women to drug screening and then turn over positive results to law enforcement

3. TEST:

a) What is the nature of the privacy interest allegedly compromised?

b) What is the character of the intrusion imposed by the policy?

c) What is the nature and immediacy of the government’s concerns, and what is the policy’s efficacy in meeting them?

(1) Is there a real need for the intrusion, like the war on drugs at schools?

Record Keeping and Reporting Requirements

I. Statutory Authority required

A. Authority to require record keeping via regulations may be implied

B. BUT, if the agency wants to issue a subpoena or report order, the authority must be express.

1. No implied authority to subpoena

C. Agency orders to compel the filing of informational reports constitutes an investigative act, not a rule or adjudication.

1. §555(c) requires investigative orders to be authorized by law

2. do not need to use APA rulemaking to create the record keeping requirement

II. Subpoenas

A. Description

1. Directed at specific people/entities, rather than an entire industry.

2. Enforceable thru judicial contempt proceedings.

3. Subpoenas ad testificandum

a) requires the person to come and testify

4. Subponeas duces tecum

a) requires a person to come and bring something with him, usually documents.

5. Investigative subpoenas

a) Used to conduct an investigation

B. Agencies need express statutory authority to issue subpoenas.

C. Recipient’s options

1. comply

a) recipient has the right to be accompanied, represented and advised by counsel

2. ignore it

a) agency must go to federal district court to enforce it

b) then, failure to comply results in contempt hearing

3. fight it

4. don’t need to wait until it goes to court

5. use the administrative process for contesting the subpoena

6. meet informally with the agency to negotiate the scope of the subpoena, deadline, et.c

7. can’t get judicial review until the agency goes to court to enforce it

8. TWO BEST ARGUMENTS:

(1) subpoena exceeds the agency’s authority

(2) subpoena violates affirmative legal restrictions like 4th or 5th amendment.

III. 3 part Morton Salt Test for compliance w/ 4th A:

A. subpoena is issued for a proper purpose authorized by Congress

1. a determination of whether the party can pay potential judgments in a civil suit is not a proper purpose (Freese v. FDIC p622)

2. purpose of harassment is improper

3. uncovering wrongdoing as yet unknown is improper purpose

4. subpoena must be issued for the purpose for which the agency is authorized to issue subpoenas

5. must be issued using proper procedures

B. info is relevant to that purpose

C. things required in the subpoena must be particularly described (Oklahoma Press)

1. Cannot be too indefinite

2. Cannot be too overly burdensome

3. broadness alone is insufficient to quash a subpoena, if the material sought is relevant. (Adams v. FTC p624)

a) If there is no suspicion of wrong-doing, the subpoena might be invalid. (Freese). Can’t use the subpoena to go on a fishing expedition. But, the standard is NOT probable cause, either.

D. Required reports are tested under the same standard.

E. Courts RARELY invalidate agency subpoenas under this test.

IV. 5th amendment concerns: right against self-incrimination

A. Corporations cannot resist production of records upon the ground of self-incrimination.

1. Because corps are created by the State.

B. Unincorporated groups are not protected, either.

1. Framers intended the Amendment to protect individuals, not entities.

2. corporate custodians may not claim an individual liberty via the corporation records, either. The custodian holds the records in a representative capacity, not a personal capacity.

C. Even a sole proprietorship is not protected, if the info sought is required to be kept by law.

1. the records are “public”

D. Required records doctrine (Doe)

1. Even requiring production of existing documents is not self-incrimination b/c the amendment only protects compelling testimony.

E. Protections that do exist

1. individual will not have to turn over documents if the act itself is incriminating; If the act itself has testimonial significance.

a) Ex: private diary is admissible hearsay only if the diary was kept by the defendant. Therefore, the defendant’s act of turning over the diary implies it is in fact his diary, and he implicates himself by turning it over.

b) A corporate custodian’s act of turning over papers is not a personal act, so 5th A does not protect that. Also, then, the gov’t can not make evidentiary use of the individual act against the individual.

2. Taxpayers can not be forced to turn over their personal tax records

V. Paperwork Reduction Act

A. Does not apply to agency subpoenas or investigations.

B. Applies when an agency imposes a recordkeeping requirement on 10 or more persons

C. Must have a control number.

D. If not done by rulemaking, the agency must publish the proposed record keeping requirement in the Fed Reg and allow 60 days for notice and comment.

E. After publishing, the agency must certify the requirements are met.

VI. Bases for resisting agency action seeking information

A. Statutory authority

1. if it doesn’t have stat auth to require record keeping it’s dead.

2. Chevron—gives agencies very broad powers to define their own areas of JX, to define their own statutory mandate and how far it extends

3. Remember- the subpoena must be signed by a person in the agency w/ authority

B. Regulatory authority

1. You can undermine the record keeping requirement if it was established in a rule that did not go thru APA rules.

C. APA

1. can agency, in its regulatory auth, require record keeping based on orders.

2. often lawful for agency to use orders to require regulates there.

D. 4th A

E. 5th A

F. Privileges (attny-client, attny work product)

1. bad strategy to hand over the truckload of stuff, b/c the gov’t WILL go through it

G. Paperwork Reduction Act

1. is it required

2. does it have the control number?

3. problem: they turned reducing paperwork into a bureaucratic effort

4. if you are an agency and you know how to deal with it, you know how to get around it

5. certainly has regularized info demands by the gov’t but has not actually given ppl a basis to stop or fight agency collection activity

H. Negotiate the scope of the subpoena

1. exclude irrelevant docs

2. exclude old/cumulative docs

FOIA

I. Background

A. Originally designed for the “public” to get info about the gov’t

B. Most frequent users are businesses

1. seeking commercial information about their industry, markets and/or competitors.

II. What info is included

A. “Agency record”

1. Focus on totality of four factors:

a) Is the document in the agency’s control

b) Generated w/in the agency

(1) Documents transferred between agencies is w/in FOIA if both agencies were covered by FOIA

c) Was the document placed into the agency’s files?

d) Was the document used by the agency for any purpose?

2. Agency must actually possess the record

3. if agency legally possesses it but does not physically have it, the agency does not have to produce the record. (ex: State Dept did not have Sectary of State Kissinger’s phone records so it did not have to produce them)

a) Individual phone logs, appointment calendars, daily agendas are not agency records (Bureau of Nat’l Affrs v. U.S. DOJ) i.e., individual creation of a record does not attribute the record to the agency

4. Custody and control may not be enough either.

B. Examples

1. Staff manuals

2. Statements of policy

3. Interpretations

4. Other materials not published in the Fed Reg

III. What info is not included

A. Adjudications that the agency does not intend to use against other individuals in the future;

1. i.e., non-precedential adjudications.

B. Pre-decisional inter-agency memos

IV. What agencies are affected?

A. Gov’t corporations

1. but incorporation is not enough—Red Cross is not an “agency”, PBS is not an “agency”

2. need some degree of federal chartering, funding, and control.

B. Exec office of Pres

1. does not include the Pres

2. does not include Pres staff

3. does not include entities whose sole function is to advise the Pres

4. Does include OMB, Office of Science and Tech, Counsil on Enviro Qualtiy, etc.

V. Agency duties

A. §552(a)(1) requires agencies to publish legislative rules in the Federal Register automatically, w/out anyone asking for it.

B. §552(a)(2) requires agencies to “make available” some information for copying and inspection, upon request

C. Create indexes of all material and publish the index

D. 552(a)(3) is the classic FOIA- to make records promptly available upon request.

1. Upon any request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”

2. Agency does not have to honor individual requests for information that has already been made public under 552(a)(1) or (2)

E. In the future, to make docs avail electronically

VI. Exceptions 552(b)

A. Classified info

B. Internal agency personnel rules and practices

C. Info specifically exempted from disclosure by statute

D. Private commercial or trade secret info

E. Inter-agency or intra-agency privileged communication

F. Personnel, medical, or similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy

G. Info compiled for law enforcement purposes

H. Info related to reports for or by an agency involved in regulating financial institutions

I. Geological info concerning wells

VII. Requirements of FOIA request

A. ANY person

1. foreign citizens

2. corporations

3. governments

4. illegal aliens

5. prison inmates

B. Must reasonably describe the records sought

1. specific enough to allow agency to find it

2. broad enough to include all the records the requestor wants

a) court may let the agency off the hook if the request is too broad

C. Must follow agency rules

1. every agency has rules on how to make FOIA requests

VIII. FOIA Fees

A. Costs the gov’t $50-200M a year

B. Commercial requests

1. Agencies may charge fees to recover the direct costs of search, duplication, and review associated with the request

C. Non-commercial requests made by the media, academia, scientific community

1. Agency can only assess reasonable duplicating fees.

D. All other requests

1. agency can charge for search and duplication, but not review

2. First two hour of search time are free.

3. First 100 pages of duplication are free

IX. Agency compliance

A. Agencies rarely comply with time requirements.

1. Supposed to decide w/in 20 days of receipt if it will comply with the request.

2. If it denies a request

a) it must provide an explanation in writing and tell the requestor how to appeal the denial

b) If the requestor appeals, the agency has 10 days to decide the case.

3. But, requestor may treat the failure to comply as a denial and seek judicial review

X. Reverse FOIA

A. If you provide info to the gov’t, you have no right to make the agency w/hold it unless

1. a statute forbids its distribution outside the agency

a) like Trade Secrets Act

2. if you turn it over voluntarily, the gov’t can “choose” whether or not to use exemption #4.

B. So, you need to identify documents as “confidential” when you turn them over to the agency.

1. You have aright to be notified before the agency discloses it.

2. You put a name and telephone number on it to get a right of notice before disclosure.

3. Once you get notice, you sue under APA as a person aggrieved for the agency’s decision to disclose your trade secret.

C. If you don’t know the agency has disclosed your info, you can’t sue.

1. Chrysler v. Brown p686

2. Current Exec Order splits the decision to disclose and the disclosure that happens later. Allows judicial review of the decision to disclose b/c it’s an order

XI. Judicial Review of FOIA

A. If request is denied, requestor can seek review under §552(a)(4(B) rather than 706. Some differences:

1. Defendant agency has the burden of proof to justify its action.

2. Court determines the case de novo, it is not limited to the agency records and it is not to defer to the agency’s decision.

3. Plaintiff can win reasonable attorneys fees and costs if she wins.

4. Federal Advisory Committee Act XII. Background

A. During WWII, government and industry worked together very closely for the first time.

1. ppl were concerned about undue influence.

2. # of advisory agencies skyrocketed to 3000

XIII. Purpose

A. Impose limitations/burdens on the executive branch using advice from committees made up of private persons.

B. Reduce gov’t waste

1. no new advisory comte can be established unless the President or statute specifically authorizes its creation

2. or, the head of an agency can determine that establishing the cmte is in the public interest in connection with that agency’s duties

3. Advisory comtes can not meet until its charter has been filed with the agency administrator (for Presidential advisory committees) or with the

a) Charter must contain committee’s purpose, title, time span, duties of members, cost, number and frequency of meetings.

4. Two year time limit

a) Unless statute specifies otherwise

b) Pres can extend the comte for two years at a time, unlimited extensions are available.

C. Reduce undue influence by balancing interests reflected in the membership.

1. Requires advisory committees to be “fairly balanced in terms of the points of view represented and the functions performed by the advisory comte.”

D. Reduce potential that tail wags the dog.

1. Advisory committees cannot meet with the approval of a designated officer or employee of the Federal gov’t.

2. Designated fed employee must attend meetings.

3. Designated fed employee can end the meeting whenever he chooses.

E. Reduce undue influence by lowering level of secrecy of advisory committees.

1. Each meeting is open to the public.

2. Each meeting must be timely noticed in the Fed Reg.

3. Public is entitled to participate in meetings.

4. Comte must keep detailed minutes/record of meetings.

XIV. Most litigated issue is what “is” an advisory committee

any committee, board, commission, council, conference, panel, task force or other similar group or any subcommittee of other subgroup thereof that is

1. established by statute or reorg plan

2. established or utilized by the Pres

3. established or utilized by one or more agencies

B. in the interest of obtaining advice or recommendations for the President of one or more agencies of officers of the Fed Gov’t.

C. If the committee is made up entirely of federal employees, it is exempt from FACA.

XV. Gov’t defenses:

A. Group is not an advisory committee

1. All federal employees

a) First Lady = full time fed employee

2. Voting members are all federal employees.

a) Just because outsiders/energy execs had influential participation did not transform the committee into an advisory committee

B. Group is not utilized by the Pres

1. ABA Standing Committee on the Federal Judiciary was not “utilized” by the President.

C. Group is not utilized by an agency

1. Agency did not exercise significant influence over the group.

D. Group is not established by an agency.

1. When agency hires contractor, who in turn creates the committee, the committee is not a federal advisory committee even if the agency does exert significant influence over the committee.

E. Group is not a “federal” committee

1. committee was a “private” advisory committee, like an industry association.

a) Advice that comes from ppl who are not appointed by an agency head but who gather privately and give their private views are not covered by FACA

F. If group is a utilized advisory committee, then applying FACA would be an unconstitutional invasion of the executive privilege.

a) If ABA committee on federal judiciary became advisory b/c they were giving advice on making appointments, the statute would be unconstitutional as interfering with Pres ability to appoint judges based on any info he wants.

XVI. Plaintiff arguments

A. Group is an advisory committee

1. voting members include non-federal non-full time employees (professors in federal service ≠ federal employees)

2. receives federal funds

3. established and utilized by Pres

B. Example: Northwest Forest Resource Council v. ESPY

1. White House created Forest Conference Exec Committee (FCEC), which created Forest Ecosystem Management Assessment Team (FEMAT).

a) Director of the White House Office of Environmental Policy, in the Executive Office of the Pres, created FCEC.

b) FCEC was an inter-agency group.

c) FCEC instructed FEMAT to identify management alternatives for the forests in OR and WA.

d) FEMAT team had 6 subteams that included private contractors paid w/ federal funds.

e) FEMAT created 14 advisory groups to provide biological impact reports. 600-700 ppl were on these teams. 5 of them were professors from state universities.

2. Court said FEMAT is an advisory group.

a) it was established and utilized by the Pres.

b) five professors were not full-time federal employees.

c) The fact that the 14 advisory groups only provided data to the decision-makers does not exempt them from FACA.

XVII. How do you avoid chartering an advisory committee? 1. call each person individually

a) but it’s time consuming, inefficient, and no interaction among ppl w/ diff perspectives.

b) Want to hear what they say to each other as much as we want to hear what they say to agency

2. host a roundtable or a workshop

a) seeking information and facts around your experience.

b) but no recommendations or advice

c) can get individual advice at the meeting but not collective advice as a group.

d) Advisory groups come up reports and advice as a group, not as individuals.

3. bring the regional heads together to form a group

a) as long as there are no “outsiders” its not an advisory group

b) even if the outsiders are hired as consultants they are still “outsiders”

4. put a group together but don’t give them any votes, any authority to make a decision, or veto over committee decisions.

a) Like, In Re Cheney

XVIII. Remedies/judicial review

A. If group is subject to FACA, court will make it turn over info to the public.

1. will not enjoin agencies from using group’s information.

2. will not invalidate agency action based on use of information or recommendations.

B. It’s so easy to avoid a violation that suits brought under FACA are likely to fail.

1.

The Government in the Sunshine Act

I. Every portion of every meeting of an agency shall be open to public observation.

A. Definition of “agency” is narrow (unlike FOIA)

1. Only multi-member independent regulatory agencies are subject to the rule.

2. only applies to agencies headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the Pres w/ advice and consent of the Senate

3. applies to subdivisions/subcommittees only where the agency deliberates upon matters that are w/in that subdivision’s formally delegated authority to take official action for the agency.

B. Definition of “meeting”

1. number of members: must have at least a quorum of the committee members present.

a) If the staff of each of the commissioners meet, that is not a meeting because the staff are not “members.”

2. topic of discussion: must involve deliberations that determine or result in joint conduct or disposition of official agency business.

a) Birthday party probably does not qualify

b) Discussion only of logistics, schedules does not qualify

3. effect of discussion: The Act is triggered when members have discussions that effectively predetermine official actions, when discussions are sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency. (FCC v. ITT)

a) Includes an informal background discussion that merely clarify issues and expose varying views of official agency business .

4. this law does not require the agency to let the public participate. It merely requires agencies to let the public watch the meetings.

5. Also, this law does not require agencies to structure meetings so that they are more likely to trigger the Act. If agencies use methods to circumvent the Act, so be it.

C. 10 Subject matter Exceptions (7 are like FOIA and 3 are unique)

a) where agency determines that the public interest requires a meeting to be closed because it would reveal one or more of these types of information

b) However, unlike FOIA, meetings can not be closed to protect revealing that agency’s recommendation to another agency

2. national defense

3. classified information

4. internal personnel rules

5. matters exempted by statute

6. trade secrets and confidential commercial info

7. invasion of personal privacy

8. investigatory records compiled for law enforcement purposes

9. information related to the report prepared by or for an agency regulating financial institutions

a) Plus three UNIQUE exceptions:

b) Accusing any person of a crime or formally censuring any person (§5)

c) Causing economic instability (§9)

d) Issuing a subpoena, participating in civil action or formal agency adjudication (§10)

II. Reasons agencies don’t like Sunshine Act

A. Creates uncertainty and confusion

1. Members throw out initial ideas w/out much thought or deliberation and the public attendees get their panties in a wad over ideas that would normally fizzle out and die on their own anyway.

B. Reduces uniform voice

1. members may want to come to a consensus on important issues to present a strong front to the public

C. Chills individual members willingness to participate

1. nobody wants to look stupid by saying something in a tentative, inadvertent, argumentative or exaggerated statements

D. High likelihood of statements being taken out of context.

1. members statements may be taken out of context by the public who doesn’t have all the info, or by the media.

III. FCC v. ITT World Communications, Inc.

A. Court said Consultative Process meetings not subject to Sunshine Act.

1. Consultative Process meetings were not “meetings” defined in the Act.

a) Only 3 of the 7 FCC members attended the Consultative Process.

2. Not a meeting of the “agency” defined in the Act.

a) The 3 members who attended were a quorum for the Telecommunications SubCommittee, but the issues discussed at the Consultative Process were not deliberations related to the subcommittee’s work.

IV. Judicial Review of Gov’t in the Sunshine Act

A. preliminary injunction

1. Person may bring suit before the meeting happens, if the person learns that the agency is going to close a meeting. The court can award a preliminary injunction requiring the meeting to be open.

B. court order

1. Person may bring suit after the closed meeting happened.

2. The court can order the agency to disclose its transcripts

C. Court may NOT invalidate agency action simply because it took place at a closed meeting.

Equal Access to Justice Act

V. Types of adjudications that trigger EAJA

A. Formal agency adjudication with ALJ

1. Immigration/INS/ICE hearings do not trigger EAJA b/c not full formal adversary adjudications.

2. SSI benefits cases do trigger EAJA

3. worker’s compensation claims

B. Any internal enforcement action

C. Adjudication w/in the agency, whether formal or informal.

1. Like NLRB hearings

VI. “Prevailing party” gets attorneys fees

A. Private party never pays for gov’t costs.

1. That would be even more unfair. Gov’t is never going to be dissuaded by the prospect of paying both sides’ fees but private parties will be even MORE dissuaded.

2. Some states require a “substantially prevailing party.”

Buckhannon Rule

3. party must have prevailed in a way that is affirmed by a court.

a) settlement agreements don’t get you attny fees if not approved by the court.

(1) (unless parties agree to it in the settlement agreement)

4. Court specifically rejected the “catalyst rule.” The rule was alive and well, esp in state systems up until this holding. Why did they kill it?

a) There is no sure way to know that this party was the proximate cause of the government’s voluntary change in position.

b) Justice Dept argued that it would discourage voluntary changes in position on part of the agency. Voluntary changes are cheaper for everyone so we like them.

(1) The plaintiff is still incentivized to settle b/c 1) duty of attny to do what’s best for client, and 2) the attny will get nothing if he is found to have protracted the litigation.

c) Court doesn’t want to see litigation about who did/did not “prevail” in a settlement.

VII. “Substantially justified”

A. Even if you are a prevailing party, you may still not get attny fees if the agency’s position was substantially justified.

1. Statue pulls back the ability to get attny fees with this caveat.

B. The court determines whether or not the agency was substantially justified by looking at the entire administrative record.

1. You also need to look at the agency’s own regulations to determine if the agency has a definition of what suffices for “substantially justified”.

1. Agency has the burden of proof to show its position was substantially justified

C. Which position?

1. could be the position of the agency in the action that precipitated the litigation

2. or could be the position of the agency in court

D. Agency’s position must be relevant in law and fact

1. Pierce v. Underwood p740

E. Agency has the burden of proof to justify its action.