Last Admin Q Before Exam: How Do You Know When APA Applies? Forum

[sabina.kopusov]

TL;DR: When do you stop looking at agency-provided process (if ever) and turn to APA?

I know this question is stupid, but it's really bothering me. In a fact pattern, the agency is providing *some* degree of process, e.g. it looks at the work performance of an employee, gives him notice of termination and allows him to submit contrary evidence, then tells him based on our regulation, you're fired.

Under APA s. 704, the agency has to abide by its own process (and the constitutional minimum)? So now, this employee can bring a judicial review action if he meets constitutional and APA s. 702 standing? And he will be arguing that the the order was arbitrary and capricious, right? Since the action was an informal adjudication, there is no Chevron deference to the agency's interpretation of its regulation, correct?

I hope I am getting this right. Thanks to everyone for their help! You guys have been lifesavers.

[Nelson]

He can get hard look review to see the agency was arb and cap. If the agency makes a legal interpretation of its own regulations and not a statute they get Auer deference but that doesn't prevent hard look review as well.

Also remember that agency hiring and firing decisions are a good place to look for committed to agency discretion issues as well. If the decision is committed to agency discretion by law, the employee can't get review at all under the APA.

[sabina.kopusov]

EDIT: FOLLOW-UP

The substantial evidence test requires review of the "whole record." So, conversely, does A&C review not require review on the whole record i.e. the decisionmaker can look at hearsay and ignore the petitioner's rebuttal evidence?

EDIT #2: It appears for A&C you do need to look at the whole record, so the distinction is unclear to me, unless whole record in the substantial evidence context means exclusively the whole record...

Thanks! So if there is a rule governing employee hiring/firing, but its unclear if its a legislative rule or an internal regulation, is it more likel y a regulation? Also, my exam is in four days. If I have one last panic mode question, can I leave it here?

Cuz I am freaking out more than I was last week. I am a 2L and I have never been this unprepared.

[3|ink]

1. Agencies get seminole rock deference when interpreting their own regulations. Not as strong as chevron deference, but it's controlling unless clearly erroneous.
2. There must be some way to find out if that rule governing hiring/firing is a statute or agency regulation. I can't imagine the question would hinge on "is it more likely a statute or regulation?"

[sabina.kopusov]

According to my outline, Auer reaffirmed Seminole, so it all fits. Well, the exam said it was a rule, and that's how I examined it (making the mistake of giving it Chevron deference where it was an informal adjudication), but I was wondering whether a rule that governs internal employees can be considered a legislative rule categorically. Thx for your help...Like I said, will have a few more questions, hope I can turn to you. Taking this class p/f, and I don't know what the threshold is for passing.

[3|ink]

According to my outline, Auer reaffirmed Seminole, so it all fits. Well, the exam said it was a rule, and that's how I examined it (making the mistake of giving it Chevron deference where it was an informal adjudication), but I was wondering whether a rule that governs internal employees can be considered a legislative rule categorically. Thx for your help...Like I said, will have a few more questions, hope I can turn to you. Taking this class p/f, and I don't know what the threshold is for passing.

It looks like you have a few things confused, but you were right not to apply Chevron.

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Based on what you've posted here, the agency action was applying a specific set of facts to a particular law or regulation. Informal findings of fact are subject to the 706(2)(A) arbitrary or capricious standard

[Citizen Genet]

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Been a while since Admin, but I am pretty sure this is blatantly wrong. Chevron DOES depend on the formality of the challenged proceeding; that's what Mead is all about. (If you're doing formal rulemaking or adjudication, you're in the Mead safe harbor. N&C Rulemaking is generally in there, but there might be some grey areas that take it out. Informal adjudication, as the poster two up said, will likely land you Skidmore deference, but that's a huge grey area.)

Also, Chevron deference is not for "agency conclusions of law," it is for an agency's interpretation of a statute that has a special responsibility to administer. (Thus, agencies don't get any sort of deference for interpreting statutes unrelated to your agency or the Constitution.)

[3|ink]

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Been a while since Admin, but I am pretty sure this is blatantly wrong. Chevron DOES depend on the formality of the challenged proceeding; that's what Mead is all about. (If you're doing formal rulemaking or adjudication, you're in the Mead safe harbor. N&C Rulemaking is generally in there, but there might be some grey areas that take it out. Informal adjudication, as the poster two up said, will likely land you Skidmore deference, but that's a huge grey area.)

Also, Chevron deference is not for "agency conclusions of law," it is for an agency's interpretation of a statute that has a special responsibility to administer. (Thus, agencies don't get any sort of deference for interpreting statutes unrelated to your agency or the Constitution.)

1. Yeah. Forgot about Mead. But Mead specifically says that the formality is not necessarily dispositive. The real question Mead poses is whether the agency's interpretation of the statute was meant to have the force of law. Formality is just a factor.
2. An agency's interpretation of the statute it has responsibility to administer is an agency conclusion of law. Saying Chevron is only available for agency conclusions of law isn't the same as saying Chevron is available for all conclusions of law.

[Citizen Genet]

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Been a while since Admin, but I am pretty sure this is blatantly wrong. Chevron DOES depend on the formality of the challenged proceeding; that's what Mead is all about. (If you're doing formal rulemaking or adjudication, you're in the Mead safe harbor. N&C Rulemaking is generally in there, but there might be some grey areas that take it out. Informal adjudication, as the poster two up said, will likely land you Skidmore deference, but that's a huge grey area.)

Also, Chevron deference is not for "agency conclusions of law," it is for an agency's interpretation of a statute that has a special responsibility to administer. (Thus, agencies don't get any sort of deference for interpreting statutes unrelated to your agency or the Constitution.)

1. Yeah. Forgot about Mead. But Mead specifically says that the formality is not necessarily dispositive. The real question Mead poses is whether the agency's interpretation of the statute was meant to have the force of law. Formality is just a factor.
2. An agency's interpretation of the statute it has responsibility to administer is an agency conclusion of law. Saying Chevron is only available for agency conclusions of law isn't the same as saying Chevron is available for all conclusions of law.

1. Agree it doesn't say the breed of formality is dispositive, but it uses the amount of process and its formality as the measure of whether something was meant to have the force of law.
2. That's fair.

[sabina.kopusov]

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Been a while since Admin, but I am pretty sure this is blatantly wrong. Chevron DOES depend on the formality of the challenged proceeding; that's what Mead is all about. (If you're doing formal rulemaking or adjudication, you're in the Mead safe harbor. N&C Rulemaking is generally in there, but there might be some grey areas that take it out. Informal adjudication, as the poster two up said, will likely land you Skidmore deference, but that's a huge grey area.)

Also, Chevron deference is not for "agency conclusions of law," it is for an agency's interpretation of a statute that has a special responsibility to administer. (Thus, agencies don't get any sort of deference for interpreting statutes unrelated to your agency or the Constitution.)

1. Yeah. Forgot about Mead. But Mead specifically says that the formality is not necessarily dispositive. The real question Mead poses is whether the agency's interpretation of the statute was meant to have the force of law. Formality is just a factor.
2. An agency's interpretation of the statute it has responsibility to administer is an agency conclusion of law. Saying Chevron is only available for agency conclusions of law isn't the same as saying Chevron is available for all conclusions of law.

This is circular logic, and I asked my prof this question and he made me feel stupid for asking it. Chevron is always about interpreting a statute, and if interpreting a statute is always a conclusion of law (and its almost always the agency's statute for exam purposes), then it always applies. The prof implied its the initial context of the interpretation. (I could be wrong, but that's the way I understood his email, and I'm hoping that limited scope will be sufficient for the exam).

[sabina.kopusov]

Here's a question:

What constitutional challenges are available to challenge a statute?
[1] Removal/appointment
[2] Article III intrusion
[3] General SOP arguments(?)

But once you successfully make a constitutional argument, what is the remedy?

I'm doing an exam where party 1 wants to argue the organic statute is unconstitutional, so I make the argument.

Then party 2 wants to argue the organic statute is unconstitutional, and therefore wants a penalty imposed on them reversed. (They are former directors of a corp, and are being forced to return bonuses from past yrs).

So, I won't be making any new constitutional arguments. There shouldn't be any new ones, I should have exhausted them in part 1. But what is the prof asking here? Is the issue something about retroactivity or standing?

[3|ink]

Chevron deference is only available for agency conclusions of law. I don't think it hinges on the formality of the challenged proceeding.

Been a while since Admin, but I am pretty sure this is blatantly wrong. Chevron DOES depend on the formality of the challenged proceeding; that's what Mead is all about. (If you're doing formal rulemaking or adjudication, you're in the Mead safe harbor. N&C Rulemaking is generally in there, but there might be some grey areas that take it out. Informal adjudication, as the poster two up said, will likely land you Skidmore deference, but that's a huge grey area.)

Also, Chevron deference is not for "agency conclusions of law," it is for an agency's interpretation of a statute that has a special responsibility to administer. (Thus, agencies don't get any sort of deference for interpreting statutes unrelated to your agency or the Constitution.)

1. Yeah. Forgot about Mead. But Mead specifically says that the formality is not necessarily dispositive. The real question Mead poses is whether the agency's interpretation of the statute was meant to have the force of law. Formality is just a factor.
2. An agency's interpretation of the statute it has responsibility to administer is an agency conclusion of law. Saying Chevron is only available for agency conclusions of law isn't the same as saying Chevron is available for all conclusions of law.

This is circular logic, and I asked my prof this question and he made me feel stupid for asking it. Chevron is always about interpreting a statute, and if interpreting a statute is always a conclusion of law (and its almost always the agency's statute for exam purposes), then it always applies. The prof implied its the initial context of the interpretation. (I could be wrong, but that's the way I understood his email, and I'm hoping that limited scope will be sufficient for the exam).

What?

[3|ink]

Here's a question:

What constitutional challenges are available to challenge a statute?
[1] Removal/appointment
[2] Article III intrusion
[3] General SOP arguments(?)

But once you successfully make a constitutional argument, what is the remedy?

I'm doing an exam where party 1 wants to argue the organic statute is unconstitutional, so I make the argument.

Then party 2 wants to argue the organic statute is unconstitutional, and therefore wants a penalty imposed on them reversed. (They are former directors of a corp, and are being forced to return bonuses from past yrs).

So, I won't be making any new constitutional arguments. There shouldn't be any new ones, I should have exhausted them in part 1. But what is the prof asking here? Is the issue something about retroactivity or standing?

I would need a lot more info, but here's what I think he's getting at:

Chenery II - The agency can make retroactive rules via adjudication
FCC v. Fox - Limited this. You can make retroactive rules, but you can't penalize the party.

[sabina.kopusov]

Hm, thats good information to know.

But the question is specifically asking that the former directors want to argue "the Act is unconstitutional and thus their bonuses should be returned."

There was no new rule, it was an adjudication of one corporation that targeted the corporation, its shareholders, and former directors.

So question 1 is: shareholders want to argue that the act is unconstitutional and argue for judicial reviewability, easy enough.

Question 2: former directors want to argue that the act is unconstitutional, and thus don't want to return their bonuses. So its foreclosing analysis outside of constitutionality, it seems. But why would the result be different here? The only answer I can come up with is standing, but I'm not sure if that's right.

And as a corollary, what other constitutional questions can you raise besides appointment/removal, article III violation, and general SOP violations?

As always, thanks for your help. Hopefully I will be able to reciprocate some time.

[sabina.kopusov]

He can get hard look review to see the agency was arb and cap. If the agency makes a legal interpretation of its own regulations and not a statute they get Auer deference but that doesn't prevent hard look review as well.

Also remember that agency hiring and firing decisions are a good place to look for committed to agency discretion issues as well. If the decision is committed to agency discretion by law, the employee can't get review at all under the APA.

Thanks for the reply. I've seen different cases cited for hard look and A&C. Which cases do I use when I'm going through the test i.e. what is the best cite/list of factors for hard look and A&C?