Administrative Law

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ph14
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Re: Administrative Law

Postby ph14 » Sat Dec 03, 2011 11:04 pm

beach_terror wrote:
ph14 wrote:
kalvano wrote:
ph14 wrote:
I thought Chevron was for agency interpretations of it's organic statute. So it would potentially apply for adjudications as well as rulemakings.


Chevron is for agency interpretations of statutes. It doesn't have to be N&C.


N&C?

Practice your statutory interpretation, this is an easy one to figure out.


Ah I see, I usually just call it informal rulemaking.

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ph14
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Re: Administrative Law

Postby ph14 » Sat Dec 03, 2011 11:06 pm

Okay i'm really confused again. Can someone give me the skinny on when we use: Chevron deference, Skidmore weak deference, substantial evidence, de novo, and arbitrary and capricious?

Does anyone have this in their outline they can juts send me?

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 03, 2011 11:09 pm

ph14 wrote:Okay i'm really confused again. Can someone give me the skinny on when we use: Chevron deference, Skidmore weak deference, substantial evidence, de novo, and arbitrary and capricious?

Does anyone have this in their outline they can juts send me?

I can clarify this much: Chevron is formal procedures or "other comparable congressional intent" so it can still be somewhat informal. Skidmore was revived in Mead/Christensen, and "1. “Instead, interpretations contained in formats such as opinion letters are ‘entitled to respect’ under our decision in Skidmore, but only to the extent that those interpretations have the power to persuade” Mead

How A&C factors into Chevron is confusing, because A&C overlaps with Chevron step 2 in some manner. I'm not totally sure about this yet. I'm largely using this thread to work through this stuff in my own head, so take what I say with a grain of salt.

smittytron3k
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Re: Administrative Law

Postby smittytron3k » Sat Dec 03, 2011 11:15 pm

Well of course you have the mindfuck law school hypo where the agency does an end run around Chevron by promulgating an interpretive rule and claiming that it's entitled to Auer deference...

edit:

Arbitrary and Capricious review is the general catchall review of an agency's decision-making process. It applies to rulemaking (State Farm) as well as adjudication. Too many specific examples to list.

Substantial Evidence means that the agency has to base its decision on all material facts, not just those that support its position. It can't just ignore those facts, and it has to evaluate those facts according to the standards that it has promulgated rather than those it applies in practice (Allentown Mack). It's a weaker standard than a "preponderance of the evidence" standard--you only have to prove that a reasonable factfinder could reach that conclusion.

Chevron deference applies when Congress has authorize the agency to make rules that "bind with the force of law" (Christensen), i.e. rules with adequate indicia of formality (Mead) such as explicit authorization to engage in informal rulemaking or formal adjudication. If Chevron deference doesn't apply, then the agency's interpretation still may be entitled to Skidmore respect based on its "power to persuade" (which is a big multifactor balancing test). If neither Chevron or Skidmore deference applies, then the agency's interpretation of law is reviewable de novo.

As far as whether A&C applies at Chevron Step 2, it depends on whether you see Chevron step 2 as an inquiry into the "reasonableness" of the interpretation itself (which makes it sort of redundant with Step 1) or whether you see it as an inquiry into the process whereby the agency reached that interpretation (which avoids that redundancy at the expense of redundancy with State Farm).
Last edited by smittytron3k on Sat Dec 03, 2011 11:17 pm, edited 1 time in total.

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vamedic03
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Re: Administrative Law

Postby vamedic03 » Sat Dec 03, 2011 11:15 pm

Judicial Review of Agency Findings of Fact:
Standard of Review for Formal Adjudication = 'substantial evidence' standard - evaluation of the reasonableness and fairness of agency determinations (Universal Camera)

Standard of Review for Informal Proceedings = Arbitrary and capricious standard; view is that arbitrary and capricious standard is a little closer to the reasonable finder of fact standard so more deferential that the substantial evidence standard

Judicial Review of Agency Legal Determinations:

Chevron Deference = if the agency has been delegated rule making authority and has acted in a form entitled to Chevron deference

Auer/Seminole Rock = When agencies interpret their own regulations their interpretations get controlling weight unless plainly erroneous (but not when interpreting 'parrotting' regulations)

Skidmore = Lighter form of deference used when the agency hasn’t been delegated law making power or can also be used when agencies that do have law making power exercise their power in a way that does not receive Chevron deference

Judicial Review of Agency Policymaking & Discretion:

Policymaking = Policymaking arises with agency decisions that are less tied to statutory language (Decision making grounded in policy choices rather than statutory language)

Arbitrary and Capricious review standard generally applies to policymaking (“hard look” review)

(Edited for clarity)

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vamedic03
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Re: Administrative Law

Postby vamedic03 » Sat Dec 03, 2011 11:18 pm

[Pasting the relevant portion of my Admin. Law outline]


SUBSTANTIVE JUDICIAL REVIEW OF AGENCY DECISIONS

A. JUDICIAL REVIEW OF FINDINGS OF FACT

1. Spectrum of deference within Article III courts
a. Lease deferential – de novo review
i. Rarely see de novo review by appellate courts
1. E.g. – determination of actual malice in a defamation case
b. Most deferential – court review of jury fact finding
i. Asks whether a reasonable finder of fact could find the verdict based on the evidence
c. In between – clearly erroneous standard
i. Appellate review standard for judge found facts in a bench trial
d. Factors Effecting the Review of Facts
i. Institutional characteristics of the fact finder and the reviewing court
1. One extreme – the review of legislation by AIII courts with regards to economic and social regulation
ii. Articulated Standard
iii. Record for review
1. If no record or minimal record – then minimal level of review
2. Whole record – generally used in reviewing agencies and lower courts
3. Record of the fact finder’s findings – if you have an opinion that tells you what their specific fact findings were, this leads to a more searching review
iv. Types of facts
1. Adjudicative facts are easier to review than legislative facts
2. Standards of Review for Formal Adjudication
a. Substantial evidence standard – evaluation of the reasonableness and fairness of agency determinations
i. Should police agency fact finding more than they do with jury standards
ii. But still fairly deferential
b. Based on a review of the whole record
c. Universal Camera – employee testified at NLRB hearing, a manager expressed the sentiment that the employee was perjuring himself, and two months later the manager fired the employee. Employer explained that the firing was due to a fight with the personnel manager a month earlier and the delay occurred because the manager didn’t realize the employee hadn’t left.
i. ALJ credited the employer testimony and found against the employee
ii. Agency reviewed the ALJ’s finding de novo and reversed
iii. Court should consider the ALJ’s original findings as part of the record, though the Agency’s findings are the findings owed substantial evidence deference
3. Standards of Review for Informal Proceedings
a. Arbitrary and capricious standard applies with informal proceedings
i. Traditional view is that arbitrary and capricious standard is a little closer to the reasonable finder of fact standard so more deferential that the substantial evidence standard
b. Why greater deference?
i. Informal proceedings have less of a record available than formal proceedings
ii. Types of facts
1. Notice and Comment tends to be legislative facts
a. General and prospective
b. Often technical or scientific
c. Predictive rather than retrospective
d. Less concern with credibility
c. Association of Data Processing Services Organization – Determination by Fed Reserve Board, as banking companies had to get approval from Fed Reserve if they were to engage in non-core banking activities. Agency had to determine whether the proposed activities were closely related to banking and whether the benefits outweighed the potential harms. Particular proceeding involved both an adjudication and rulemaking.
i. Produced an order – allowing Citicorps to engage in the desired activity, and
ii. Produced a modification to regulation Y – allowing banks to engage in data processing because they are closely related activities and don’t threaten to undermine competition
iii. Organic statute – if decision supported by substantial evidence, then the findings would be conclusive
iv. J. Scalia claims that both arbitrary and capricious and substantial evidence are the same level of deference
1. Claims that A&C is used for non-formal records while SE is used for formal records
2. Tries to collapse them, but:
a. Not believable the SE isn’t a little more searching because of the available record
b. And, claims it doesn’t make sense for notice and comment to receive more deference as it effects more people, yet this is a complaint about all legislative deference
d. Allentown Mack – Review of an NRLB determination in a formal proceeding
i. J. Scalia claims that substantial evidence is the same as a jury review
ii. But, he engages in a substantially searching review nonetheless
iii. Not widely accepted view of the standards of review
1. Fails to recognize that:
a. Constitutional mandate with regards to jury determination
b. Practical differences in the record demands a difference in the standards
i. Jury operates in a blackbox whereas the agency operates with a degree of record and recorded analysis and reasoning

B. JUDICIAL REVIEW OF AGENCY LEGAL DETERMINATIONS

1. Pre-Chevron Approach
a. Some degree of deference provided to agency legal determinations
i. High level of generality = de novo review
ii. Specific application = reasonableness review
b. Felt to be consistent with the judge/jury relationship
c. Courts would review law at a general level de novo and would give deference to the specific application of law to fact
i. Determination of fact – determination of the existence of some physical or mental phenomena
ii. Law – rules or standards by which the state proposes to exercise its power
iii. Application of law to fact – may requires some interpretation of the legal standard
d. Hearst v. NLRB – question of whether newsboys could unionize as employees under the NLRA. Board concluded that newsboys, who were grown men that sold newspapers under the direction (as to # of papers allotted and assigned spots) of district managers of the newspapers.
i. Court determined whether employee in the organic statute referred to the common law definition without any deference to the agency
ii. In determining whether the definition of employee applied to the facts of the case, the Court showed deference to the agency
1. Reviewed for whether the specific application had a reasonable basis in law
e. O’Leary – Victim was working for a government contractor in Guam and was at a recreation center maintained by the employers. V witnessed someone drowning outside the designated area and attempted to rescue him, but drowned in the process. Survivor brings claim under the Longshoremen and Harbor Worker’s Compensation Act. The Commissioner determined that the employee died in the course of employment. COA reversed, Court reinstated the Commissioner’s ruling.
i. Variation on Hearst
ii. Court first determined whether or not a broader standard of course of employment would be applied
1. Determined de novo
iii. Court then determined that they would evaluate the application of the law to the facts under the substantial evidence review standard
1. J. Frankfurter justifies this through comparison to judge/jury relationship
f. Packard – Court interpreting whether an employee who was a foreman was entitled to bargain collectively under the labor laws.
i. Court seemed to engage in a de novo review of the application of law to fact
ii. Provides factors for review:
1. Importance
2. Consistency
3. Confidence in the agency
4. Distinction between legalistic and technical questions
iii. Courts were inconsistent in applying the Packard factors
2. Chevron Deference
a. 3 Step Test
i. Step 0 – Has the agency been delegated with rulemaking authority?
1. Did Congress delegate to the agency the power to make rules having the force of law? As to this issue? (Gonzales)
a. No deference on issues of onstitutional law
b. Agency receives deference to the statute it administers, but does not receive deference as to generally applicable statutes (APA, Federal Tort Claims Act, etc.)
i. DC COA has held that Agencies should not get deference when more than 1 agency administers a statute
2. Did the agency act in a form that entitled it to Chevron deference? (Mead)
a. Generally thought that degree of formality of rulemaking process matters – notice and comment rulemaking or formal adjudication strongly preferred
b. Thought other forms of agency action might be entitled to deference
3. Is some other type of deference available? (Skidmore or Auer)
4. Other notes:
a. Agency interpretations of court decisions are not entitled to deference
b. Agency may depart from a prior court interpretation of the statute the Agency administers if the court decision was not based on a determination that Congress had spoken to the precise issue in question (Brand X)
i. Agencies must provide an explanation as to why they departed from the court’s interpretation
ii. J. Scalia disagrees – feels that once a court reaches an interpretation, Agencies should be bound by that interpretation
c. No deference to DOJ interpretation of criminal statutes
d. Litigation positions are not entitled to Chevron Deference
ii. Step 1 – Did Congress have intent as to the precise question at issue? [is there an ambiguity?]
1. Strongly effected by the Court’s choice of statutory interpretation
iii. Step 2 – Is the agency’s interpretation a reasonable interpretation?
1. Usually when a court reaches step 2, the agency will win
2. Suggested that there should be a requirement of adequate explanation
a. Suggestion that a traditional arbitrary & capricious review should be conducted at Step 2
b. Basic justifications:
i. Congressional delegation to the Agency
ii. Agency expertise
iii. Agency political accountability through the executive
c. Arguments against Chevron Deference:
i. Courts have expertise in interpreting statutes
ii. Constitutional role of courts interpreting statutes
iii. Possible breakdown of separation of powers values
d. Chevron – EPA had been delegated rule making authority for clean air act. Agency had gone back and forth as to whether to apply the bubble concept for certain permitting requirements – even in non-attainment states. Bubble concept was about whether to look at a plant’s stationary sources of pollution individually or as a whole.
i. Application of Chevron to Chevron
1. Step 1
a. Text is not informative
b. Legislative history is not informative
c. Determines that there is ambiguity
2. Step 2
a. Once Court determined that there was ambiguity, Court only evaluated agency’s interpretation for reasonableness
ii. Why?
1. Argues that Congress intends delegation to the agency when it leaves ambiguity in a statute
a. Unlikely that Congress actually intended such a broad delegation
2. Chevron acts as a good default rule that gives Congress a clear signal of what the Court will do – take any ambiguity to be a delegation to the agency
iii. Normative justifications:
1. Accountability and agency expertise
2. Equates the statutory interpretation in the face of ambiguity as policy making
3. Political accountability of the agency
e. Mead – Mead importing day planners and question as to whether they were considered diaries under the tariff statute. Agency (customs service) had issue a letter ruling that day planners would be considered diaries. Letter issued through process wherein an importer could obtain a letter prior to importation to determine whether an item was subject to tariffs. Question as to whether the letter ruling by the Agency should receive Chevron deference.
i. Agency was authorized to issue notice and comment rules that could fix the classification of goods
1. Letter ruling was considered to be binding until modified or revoked
a. But, regulations cautioned against reliance other than for the particular transaction
b. Letter rulings could be issued by 46 customs office and HQ and 10-15k letters issued per year
i. Court of International Trade would not give deference on review and could make their own new record
ii. Qualified Chevron – applies when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority
1. Agency interpretations must be made by some formal procedures
2. Notice and Comment rulemaking preferred, but something that falls short of notice and comment might still receive deference
iii. Skidmore deference may still be available
iv. J. Scalia dissent – argues that any authoritative agency interpretation of an ambiguous statute, not matter what form, should get deference
1. Felt that the Agency GC’s signing off on an interpretation by litigating it was sufficient for deference
2. Concerned about ossification because agencies could be stuck with court interpretations
f. Gonzales v. Oregon – Oregon authorized assisted suicide. AG issued an interpretive rule that he may revoke registrations (for prescriptive authority) of physicians who prescribe controlled substances to assist suicide. AG made the determination that assisting suicide was not a legitimate medical purpose for writing a prescription.
i. No Auer deference as the interpreted regulation was simply parroting the statute
ii. Fails Chevron at Step 0 because the Congressional delegation doesn’t speak to the issue that the rule was attempting to address
iii. Background expression of the nondelegation doctrine – Congress cannot delegate its law making power
1. Appeared that the AG was trying to outlaw a state practice explicitly authorized by state law and, since it doesn’t have to do with trafficking of drugs, seemed to be outside the scope of the AG’s authority
2. Court appears to be looking for a clear indication that the power was delegated
g. Step 0 Cases:
i. Edelman v. Lynchburg College – EEOC could make procedural regulations for administering employment discrimination law, but no substantive rule making power. Title VII charge filed with EEOC prior to filing in court. EECO promulgated, through notice and comment, a rule that said I you get your charge in within 180 days, it’s ok if the agency verifies it after the 180 days. Defendant claimed a charge was invalid because written verification didn’t occur within 180 days.
1. Court avoided the Chevron issue by stating that they agreed with the agency
2. J. O’Connor argued, in a concurrence, that the agency rule was entitled to Chevron deference
a. Perhaps Congress authorized the agency to make procedural rules having the force of law
b. Narrow rulemaking power, but maybe the agency does have that authority
c. But, note that procedural rules are exempted from notice and comment rulemaking by the APA
i. Perhaps this fits in the opening provided for by Mead
ii. But, perhaps this means that the rule didn’t undergo the substantial deliberation that we want for Chevron deference
ii. FDA v. Brown & Williamson – FDA changed its mind and decided that it had the authority to regulate tobacco. FDA issued regulations limiting advertising, access by minors, etc. Tobacco industry challenged the regulations. Agency claimed power to regulate tobacco as a drug or device.
1. Application of nondelegation doctrine
a. If Congress was going to delegate this degree of power with such an economic impact, then they must be explicit in doing so
2. Even an agency that has broad powers to make rules that have the force of law may not be able to claim large chunks of new power
h. Step 1 cases:
i. MCI – FCC exempted all non-dominant telephone carriers from having to file their rates. Only the dominant carrier was required to files their rates with the FCC. Organic statue stated that every carrier should file with the commission a schedule showing all rates. But also contained a provision that the commission may, in its discretion and with good cause, modify any requirement under this section with 1 particular exception.
1. J. Scalia argued that modify cannot mean major changes
a. Applies dictionary definitions
b. Rejected a purposivist approach
2. J. Stevens argued that modify can bear several meanings
a. Looked to the overall purpose of the statute (preventing unreasonable rates)
b. Argued that competitors can’t have unreasonable rates and still be competitive, so competitors shouldn’t have to file their rates sense filing requirements increase entry barriers and stifle competition
i. Step 2 case:
i. AT&T v. Iowa Utilities – Requirement under a statute that local phone companies were to make their facilities available to competitors when such access was necessary and lack of access would impair the ability of the competitor to provide service. Agency rule required that the local company make access available whenever the competitor requested it.
1. Rule was essentially reading statutory requirements out of existence
2. Court struck down the rule through Step 2
3. Skidmore Deference
a. Lighter form of deference used when the agency hasn’t been delegated law making power
b. Can also be used when agencies that do have law making power exercise their power in a way that does not receive Chevron deference
c. Factors for Skidmore Deference:
i. Thoroughness
ii. Validity of reasoning
iii. Consistency
iv. Power to persuade
d. Skidmore – FLSA question – some employees at a plant were sleeping over 3-4 nights per week to be available for fire responses. Employer had only been paying them for the time it took to answer an alarm. Question of whether they should have been paid for their time.
i. Agency did not have law making authority; however, agency had issued a guidance bulletin to the employers about on-call system
ii. Court recognized agency as a body of experience and informed judgment
1. Weight to give agency judgment depends on:
a. Thoroughness
b. Validity of reasoning
c. Consistency
d. Powers to persuade though lacking power to control
4. Auer / Seminole Rock Deference
a. When agencies interpret their own regulations their interpretations get controlling weight unless plainly erroneous
b. Not available for parroting regulations
i. If a regulation simply parrots the statutory language, then the Agency interpretation of the regulation does not receive deference (Gonzales v. Oregon)

C. JUDICIAL REVIEW OF AGENCY POLICYMAKING & DISCRETION

1. Distinguishing from Chevron
a. Chevron deference applies when an agency has interpreted specific language in the statute
b. Policymaking arises with agency decisions that are less tied to statutory language
i. Decision making grounded in policy choices rather than statutory language
2. Arbitrary and Capricious review standard generally applies to policymaking (“hard look” review)
a. Involves:
i. Review of facts
ii. Adequate Explanation of the Decision (prior to litigation stage)(State Farm):
1. Based on reasons offered by the agency, rather than arguments of counsel or hypothesizing by the court
2. Whether the agency considered relevant factors, and avoided considering factors which Congress excluded?
3. Whether the agency considered salient objections and alternatives?
a. Consider relevant alternatives? Especially alternatives considered in the past?
4. Whether the agency explained changes in policy?
iii. Rational connection between facts found and the choice made (State Farm)?
1. Clear error of judgment?
b. Lighter arbitrary & capricious review of the decision not to regulate
i. Receives a lighter form of review, but
1. May be required by organic statute, or
2. Failure to regulate might harm regulatory beneficiaries
c. Repealing a regulation involves the same level of arbitrary & capricious review as promulgating a regulation (State Farm)
i. Even if the basis for a change in policy is a change in administration, there must be some form of statutory basis for the reevaluation
d. Changes in policy/regulation does not require a more substantial explanation than initial rule promulgation (FCC v. Fox)
i. But, agency must show awareness that they are making a change in policy
e. Choosing not to regulate may also be subject to an arbitrary & capricious review (Massachusetts v. EPA)
f. Results in a push for a bolstered paper record
3. Judge Bazelon v. Judge Leventhal Debate
a. DC COA in the 1970s were trying to figure out how to review the policy making arising from the agencies, especially in areas of scientific uncertainty
b. J. Bazelon – took the position that when you have highly technical areas, the best bet is to require the agency to have procedures
i. Argued for a heavy handed procedural requirement, but avoided in-depth review of technical analysis
ii. Concerned about courts’ abilities to engage in detailed analyses of technical and scientific issues
c. J. Leventhal – took the position that if the court doesn’t review substantive decision-making, then the court is giving up on its job. Delegation from Congress is based on there being court review to make sure the agency stayed within the bounds of the statutes
i. Argued that Judges can developed enough knowledge to evaluate the agency decision making, even in technical and scientific fields
d. Result?
i. Procedures have been moderately enhanced
1. Generation of a strong paper record with elaborations
2. Searching substantive review
a. Not to replace agency decision making but to make sure its stays within its boundaries
4. Hodgson – Agency lowered the asbestos exposure standard for employees from 5 fibers to 2 fibers. Lowered under OSHA standard where the Secretary has a broad delegation of authority where OSHA is given only general policy objectives.
a. Policymaking rather than statutory interpretation
b. Wants the agency to explain why its coming to one conclusion as opposed to another
i. Explanations of methodology and modeling
ii. Predictive facts require some explanation from the agency as to how they determined them
5. State Farm – minimal statutory language. Agency instructed to promulgate safety regulations for vehicles. Agency had promulgated in the 1970s a regulation requiring from 1982 onwards that all vehicles have some form of passive restraint system based on a finding that such a standard would reduced deaths by 12k/year and injuries by 100k/year. In 1981, the agency repealed the safety standards.
a. Lighter form of A&C review when courts review the decision to not regulate
i. Some reviewed justified by requirements of organic statutes, and
ii. Potential harm to the regulatory beneficiaries
b. Repeal of regulation subject to standard A&C review
i. With regards to airbags – Agency repealed the regulation because it believed that few automakers would use airbags
1. Agency provided post hoc reasoning based on problems with airbags
a. Court refuses to look at new reasons offered at the litigation stage
ii. With regards to automatic seatbelts – agency concluded that automatic belts would create less than 5% additional seatbelt wearers
1. Court finds there is a lacking rational connection between the facts found and the choice made
a. Within the agency’s discretion to deal with the generalizability of field studies, but here the Court found that the extrapolation was not rationally connected to the facts in the record
iii. With regards to spooling automatic belts – agency had, in the past, considered them as an alternative and failed to consider them when repealing the regulation
1. Because the agency had considered them in the past, the Court believe that it was a failure to consider salient objections and alternatives
c. J. Rehnquist dissent – noted that it was perfectly reasonable that a new administration would cause an agency to reevaluate the cost/benefit analysis of regulation
6. FCC v. Fox – FCC decided to change their fleeting expletive policy. In past, FCC didn’t penalized stations when they aired fleeting expletives. FCC, based on complaints and a need to safeguard children, changed their policy.
a. J. Scalia (weak 5/4 opinion) held that a change in policy does not require any more substantial explanation than a promulgation of a new rule
i. Must show awareness that the agency is making a change
1. E.g. – if change is based on a different set of facts, then have to show the new facts
2. But, no need to show the new policy is better than the old policy
ii. Argued that there is only 1 standard for arbitrary & capricious review
iii. Allows agencies to change based on changes in political parties
b. J. Breyer dissent – argued that a change in policy requires a more elaborate explanation, but you still don’t have to show that the new policy is better
i. Would essentially introduce some form of agency precedent
7. Massachusetts v. EPA – MA petitioned EPA to promulgate rules for emissions of greenhouse gasses by new automobiles. Agency decided not to regulate greenhouse gasses from automobiles. Agency argued that the statute did not provide jurisdiction, that such rule promulgation would be overreaching, and that the DOT already has authority over fuel efficiency.
a. Majority held that EPA incorrectly declined to promulgate a rule
i. Statute reached greenhouse gasses per Court’s statutory interpretation (Chevron Step 1)
ii. Non-delegation not an issue as the agency isn’t interpreting an ambiguous statute to find broad
b. Possible that it might be arbitrary & capricious to not make a judgment
i. Judgment supposed to be about the facts and science in the record, not outside policy concerns
c. J. Scalia dissent:
i. Argued there’s an ambiguity with regard to greenhouse gasses and applied a Chevron step II analysis
ii. Argued that while a decision to regulate should be based on science and facts in the record, the decision not to regulate can be based on other concerns

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kalvano
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Re: Administrative Law

Postby kalvano » Sat Dec 03, 2011 11:27 pm

beach_terror wrote:Yeah. I'm still kind of confused as to where this falls on the big flowchart of administrative law, but the informal/formal distinction governs whether you apply Mead or Chevron.



Chevron is basically another tool of judicial review. Be careful about the differentiation between Mead and Chevron...Mead modified Chevron and added another step to the Chevron analysis.

Let's say a court sits down to do some judicial reviewing. They are looking at the whole record that was before the agency at the time they made their decision, because that's what Overton Park/u] and [u]State Farm say to do, and they notice that part of the agency's decision involves them looking at a statute and determining that the statute means X. The challenger is all like "hells no, it doesn't mean X...it means YZP." So the court, before Chevron, was all like "well, jurisprudence on figuring this out is all over the map, but I think that Skidmore tells me to give an agency the deference it is due because of it's expertise...but what in the holy cow balls does that even mean?"

And so the Court got tired of trying to figure all this out, and they used Chevron to say "OK little bitch courts, when you're performing a judicial review of some agency shit, and when an agency's decision involved statutory construction of a statute administered by the agency, here's what you do...first, you look at whether Congress has directly spoken to the precise question at issue....did they? Because if they did, that controls and the agency and courts have to go with that. If Congress's intent is not clear, then if the agency's construction is reasonable or permissible, then it's fine and dandy and you, little small-potatoes judge, you can go play some golf and do blow off a hooker's butt."

Chevron was supposed to be this bright-line rule that fixed all the confusion. But, in true SCOTUS fashion, Stevens was a little bitch about it and used Mead to screw it all up. Now, under Mead, before you can even get to Chevron, they added a "Step 0". Now, court have to ask "well, can the agency even make rules that carry the force of law? Oh, they can? Well, the interpretation we're looking at, was it made under that authority?" When they ask that, they want to know how the agency made the interpretation...was it formal, like a trial-type proceeding, or maybe notice & comment? If it was some formal-type proceeding, preferably Congressionally-approved, then you move on to Step 1 of Chevron. If it wasn't very formal, like an opinion letter or something like that, then you go back to Skidmore deference. Both Step 0 (Mead) questions have to be answered in the affirmative to move on to Step 1.

Now, there is some BLL kicking around all this. An agency is not entitled to Chevron deference when:
1. Litigating positions for the first time
2. Positions articulated for the first time in briefs
3. Not entitled to deference insofar as the agency is acting as a prosecutor
4. Not if interpreting a statute that is enforced by many agencies
5. Not if interpreting the APA



That's the basic analysis. Read on for more policy-type boring shit.













Still here? Good.

Here is the dirty little Chevron secret...it didn't actually clear anything up. You see, in the infamous Chevron "footnote 9", the Court said that the judiciary gets to decide if Congress's intent was clear. And how do they do that? Why, glad you asked! "Traditional tools of statutory construction" is the answer you seek. And what does that mean? Well, anything a court wants it to mean. It's pretty much up to the judge how the interpret Congress's intent. Hence, the same case before different circuits might get different responses. What are the "traditional tools of statutory construction" you may ask? Well, they include things like statutory language, legislative intent, history, plain meaning of text, statutory context, avoiding absurd / perverse results, policy judgments (you're reasoning sucks ass!), dictionary definitions, overall purpose, canons, legislative history, and interpretive canons of construction. What does all that mean? That judges can find what they want to find.

Not to mention that Chevron is based on a huge legal fiction. According to Chevron, when Congress was silent on something, it wasn't being balls-out lazy, Heavens to Murgatroid no! They meant to do that and confer discretion to the agency! Right....but, everyone went along with because it's easier. Then Stevens had to whip out Mead...now we're supposed to do an even more intense analysis into whether a fictional intent is there or not there? Sounds like a winner, right?

Now, also keep in mind that Chevron took Marbury v. Madison and trashed it. Before, courts said what the law is. Now, they are deferring to agency's to say what the law is? Or can you say that courts ARE saying what the law is...that Congress delegated to the agency (remember the big legal fiction that Chevron is based on) to determine what the law is, and the courts are merely enforcing that. Or maybe it's because APA 706 says "courts shall decide all relevant questions of law" and the courts are just saying "we don't think that is relevant." I mean, you'd think courts would be reluctant to give up that much power, but really, courts have enormous power with Chevron, given that they determine what Congress's intent was.

Anyway, it's all a big mess, but we go along with it because, well, we're sheep.

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sat Dec 03, 2011 11:32 pm

I'm kind of drunk, but thanks for the poast. Will read it tomorrow.

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Re: Administrative Law

Postby johndhi » Sun Dec 04, 2011 2:04 am

Interesting to hear your take on things, Kalvano, it seems like your professor/casebook had a different view on some events in legal history than did mine. That's what makes learning the law so interesting, I guess.

Good luck with this stuff gentlemen/ladies.

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beach_terror
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Re: Administrative Law

Postby beach_terror » Sun Dec 04, 2011 2:37 pm

beach_terror wrote:
ph14 wrote:
smittytron3k wrote:How much are agencies going to be engaged in interpreting their organic statutes (as opposed to their regulations) during the course of an adjudication? If they're interpreting and applying their own regulations, it seems like we'd be in Auer/Seminole Rock territory rather than Chevron territory. What am I missing?


If they're interpreting regulations, are we in Skidmore territory?

No, Skidmore is only for "informal" adjudication/rulemaking I believe. Agency regulations can be formal, and thus would be in Chevron territory.


Well, like I said before I'm by no means authoritative, but if the agency interprets its organic statute in a way that doesn't have the force and effect of law, then it's not Chevron deference? Isn't this basically the same situation in Christensen? They interpret their organic statute in an opinion letter, which didn't carry the force and effect of law, so it was entitled to Skidmore deference.

Point being, there are certain informal rulemakings that can't carry the force and effect of law, like opinion letters. They'll never get Chevron deference, right? (Edit: isn't the backdrop of Chevron strong deference the fact that the agency followed formal procedures, making things "fairer" for the regulated parties?)

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kalvano
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Re: Administrative Law

Postby kalvano » Sun Dec 04, 2011 2:55 pm

If there is a problem with the organic statute, then you're into non-delegation and separation of powers, not Chevron.

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Re: Administrative Law

Postby johndhi » Sun Dec 04, 2011 5:46 pm

beach_terror wrote:Well, like I said before I'm by no means authoritative, but if the agency interprets its organic statute in a way that doesn't have the force and effect of law, then it's not Chevron deference? Isn't this basically the same situation in Christensen? They interpret their organic statute in an opinion letter, which didn't carry the force and effect of law, so it was entitled to Skidmore deference.

Point being, there are certain informal rulemakings that can't carry the force and effect of law, like opinion letters. They'll never get Chevron deference, right? (Edit: isn't the backdrop of Chevron strong deference the fact that the agency followed formal procedures, making things "fairer" for the regulated parties?)


A little concerned with your use of "informal" in the first sentence of the second paragraph. Remember that word is a term of art in administrative law which refers to a popular and rather robust system for promulgating rules in modern agencies. An informal rulemaking is highly unlikely to put the agency in a position where it does not speak with the force of the law.

Opinion letters are a territory wholly apart from the framework for interpreting statutes (Mead --> Chevron/Skidmore); they are of the world of agency guidance or regulation interpretative suggestions, reviewed by the significantly less deferential "hard look review" standard from State Farm.

I'm a guy who knows more than G.T.L., who is probably at Occupy DC right now trying to erect a wooden structure.

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Re: Administrative Law

Postby johndhi » Sun Dec 04, 2011 5:47 pm

idouble post!

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Re: Administrative Law

Postby smittytron3k » Sun Dec 04, 2011 7:14 pm

So now I am legitimately confused. Aren't agency interpretations of their own regulations entitled to deference unless clearly erroneous or inconsistent with statutes, per Auer? That's the situation I was trying to get at, not situations in which the agency promulgates "interpretive rules" which are actually just interpretations of the underlying statute.

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kalvano
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Re: Administrative Law

Postby kalvano » Mon Dec 05, 2011 10:56 am

Outline and short sheet. May not match perfectly with everyone's class, but hopefully generally useful.


http://www.crocko.com/489800CCDBDB46BE8 ... _Admin.zip

johndhi
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Re: Administrative Law

Postby johndhi » Mon Dec 05, 2011 2:49 pm

smittytron3k wrote:So now I am legitimately confused. Aren't agency interpretations of their own regulations entitled to deference unless clearly erroneous or inconsistent with statutes, per Auer? That's the situation I was trying to get at, not situations in which the agency promulgates "interpretive rules" which are actually just interpretations of the underlying statute.


Agency interpretations of their own regulations are subject to Auer deference IF they are part of procedurally rigorous agency work-product. So, notice-and-comment rulemaking that says, "our regulations mean X," receives ultra-high deference (Auer). Notice-and-comment rulemaking that says, "the Act means Y" receives high deference (Chevron). However, an opinion-letter, or blog post by the agency, even if it's talking about its own regulations, isn't going to get that level of deference because it's either not a rule/not the law, so doesn't matter, or if it IS a rule (agency seems to follow it, refers to it when making decisions), because it wasn't created in a procedurally rigorous manner. Hope that makes sense.

G.T.L., maybe we can have a sandwich nearby McPherson square some time later this year :)

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ph14
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Re: Administrative Law

Postby ph14 » Mon Dec 05, 2011 11:03 pm

Anyone have any past exams with model answers they would want to share by chance?

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kalvano
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Re: Administrative Law

Postby kalvano » Mon Dec 05, 2011 11:10 pm

ph14 wrote:Anyone have any past exams with model answers they would want to share by chance?



kalvano wrote:http://www.crocko.com/F8921DF076CF45AE829E96B17760EE3D/Admin_Law.zip


Admin Law. The (a) are questions, the (b) are the answers.

I don't remember what school they are from, but Admin Law is Admin Law, so it should work for the most part.

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wiseowl
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Re: Administrative Law

Postby wiseowl » Mon Dec 05, 2011 11:25 pm

Thanks to everyone involved in this thread. I've gone from complete panic to passive acceptance, which is a total victory.

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LeDique
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Re: Administrative Law

Postby LeDique » Tue Dec 06, 2011 1:24 am

Thanks for the recommendation of the Beermann book, I used it today for my LegReg - a lot of it was irrelevant to what we covered, but the relevant sections we're a lot more helpful than the E&E I thought, especially the Chevron stuff.

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Mroberts3
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Re: Administrative Law

Postby Mroberts3 » Tue Dec 06, 2011 1:11 pm

Good stuff, guys. My admin exam is in 5 hours and I really haven't studied as much as I planned on. Reading your outline only gets you so far -- seeing questions and evaluating other peoples' answers is a way better way of testing your own knowledge.

johndhi
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Re: Administrative Law

Postby johndhi » Tue Dec 06, 2011 1:46 pm

Mroberts3 wrote:Good stuff, guys. My admin exam is in 5 hours and I really haven't studied as much as I planned on. Reading your outline only gets you so far -- seeing questions and evaluating other peoples' answers is a way better way of testing your own knowledge.


Get some!

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beach_terror
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Re: Administrative Law

Postby beach_terror » Tue Dec 06, 2011 2:50 pm

HEY BEACH, WE HEARD YOU LIKED STATUTES SO WE PUT A STATUTE* IN YOUR STATUTE** SO YOU CAN STATUTE*** WHILE YOU STATUTE****

*environmental **administrative ***energy ****killself

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ph14
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Re: Administrative Law

Postby ph14 » Tue Dec 06, 2011 6:12 pm

So would anyone be interested in looking at a practice exam that I outlined (no answer for) and see what very general way they would proceed? Ie, we'd need to do a Chevron analysis here. Here is a judicial review issue, it's probably going to be substantial evidence standard, etc. Let me know and I can email it to you and we can compare.

Grapes
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Re: Administrative Law

Postby Grapes » Tue Dec 06, 2011 9:26 pm

beach_terror wrote:HEY BEACH, WE HEARD YOU LIKED STATUTES SO WE PUT A STATUTE* IN YOUR STATUTE** SO YOU CAN STATUTE*** WHILE YOU STATUTE****

*environmental **administrative ***energy ****killself


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