Administrative Law Forum

[beach_terror]

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

--ImageRemoved--

thank you for doing what I was too lazy to do

[jayman]

1. can anyone explain whether an issued order resulting from formal adjudication is subject to A&C/Hardlook review? I am unsure whether substantial evidence review strictly applies to the agencies findings of fact during the formal adjudicative process and then A&C / Hardlook gets applied to the agencies ultimate decision, i.e. the issued order.

2. is it correct to say that chevron simply applies when an agency interprets its enabling statute? does this allow an agency to determine its scope of authority under the statute?

[ph14]

1. can anyone explain whether an issued order resulting from formal adjudication is subject to A&C/Hardlook review? I am unsure whether substantial evidence review strictly applies to the agencies findings of fact during the formal adjudicative process and then A&C / Hardlook gets applied to the agencies ultimate decision, i.e. the issued order.

2. is it correct to say that chevron simply applies when an agency interprets its enabling statute? does this allow an agency to determine its scope of authority under the statute?

(1) I think everything is subject to A&C review, right? But since it's a formal adjudication, someone challenging could challenge them on the substantial evidence standard which is a slightly less deferential standard to the agency, so they would challenge on that test. But then I guess you'd have to run the A&C test as well?

But the questions will be slightly different-- substantial evidence is concerned with whether there is sufficient evidence to justify the decision, and A&C is concerned with whether the agency decision makes sense in light of the principles and policies underlying the regulatory scheme at issue.

(2) I think that's correct. It does allow an agency to determine its scope of authority, subject to any constitutional issues like the nondelegation doctrine, which may lead the court to construe the statute more narrowly to avoid any potential delegation problems. Not sure if they would get any deference in their interpretation after an agency has interpreted narrowly, i'm guessing they probably would as long as they weren't pushing it back into the nondelegation issue again?

Of course, you could say that Congress unambiguously never intend that thus failing the agency interpretation at step 1 of Chevron, so the courts get to "interpret" what the scope of power is (I think).

[eliekedourie]

Quick question. So if a statute provides for criteria for which animals the administering agency can designate as endangered, and the agency (arguably) applies the criteria and promulgates a rule identifying the animal as endangered (entitling it to all sorts of statutory protections), is that rule considered a legal conclusion subject to Chevron? Is that even really a rule? It's prospective and broadly applied, but it's essentially just the application of certain criteria to an animal and a resulting designation. It almost feels like licensing. It's not really an interpretation of the statute...

It's been a long day and I'm feeling a little lost. Anyone want to help?

[ph14]

Quick question. So if a statute provides for criteria for which animals the administering agency can designate as endangered, and the agency (arguably) applies the criteria and promulgates a rule identifying the animal as endangered (entitling it to all sorts of statutory protections), is that rule considered a legal conclusion subject to Chevron? Is that even really a rule? It's prospective and broadly applied, but it's essentially just the application of certain criteria to an animal and a resulting designation. It almost feels like licensing. It's not really an interpretation of the statute...

It's been a long day and I'm feeling a little lost. Anyone want to help?

If they're promulgating a rule as opposed to interpreting the statute, then it wouldn't be entitled to Chevron deference, right? So I guess it depends if you're characterizing that action as interpreting the statute then it would be entitled to Chevron deference. And the rule that was promulgated would be subject to arbitrary and capricious review?

Perhaps that would be an informal adjudication though? It doesn't seem like a rule of general applicability, but rather individual applicability (to that one animal). So still A&C review, though?

[smittytron3k]

Assuming that the challenge is that the Secretary's regulation fell outside of the scope of the authority delegated to him by statute, then yeah, the Secretary's regulation would be entitled to Chevron deference. Regulations are the archetypal form of agency action that is entitled to Chevron deference (see Mead); remember, Chevron (the case) was about whether a regulation promulgated pursuant to the Clean Air Act was entitled to deference. The basic take-away is that agency interpretations of law can take a bunch of different forms, and that regulations are entitled to Chevron deference (at least at Chevron Step Zero).

The Secretary's action (assuming this is the ESA we're talking about) is definitely a rule because it is generally binding, rather than agency action which targets only particular individuals (like an application for benefits, a license, or a permit; a labor dispute; a cost reimbursement claim; etc.)

ph14, the Secretary's action would be subject to arbitrary and capricious review (like all agency action within the scope of the APA is) but it might also be subject to review for exceeding the authority granted by statute (which is another prong of 706 that I don't remember)

[smittytron3k]

1. can anyone explain whether an issued order resulting from formal adjudication is subject to A&C/Hardlook review? I am unsure whether substantial evidence review strictly applies to the agencies findings of fact during the formal adjudicative process and then A&C / Hardlook gets applied to the agencies ultimate decision, i.e. the issued order.

2. is it correct to say that chevron simply applies when an agency interprets its enabling statute? does this allow an agency to determine its scope of authority under the statute?

1.
A&C = yes; all agency action to which the APA is applicable is reviewable under the standards enumerated in 706. substantial evidence review is generally applicable to the agencies' conclusions of fact (subject to clear error review or substantial evidence review) and to conclusions of law (reviewable if arbitrary, capricious, or an abuse of discretion)

"hard look"--this is sort of a misnomer in the adjudication context because hard look refers explicitly to agencies' decision-making process in promulgating rules (see state farm). there's some academic debate about whether the requirement that agencies engaged in reasoned decision-making during the rulemaking process is better justified by "hard look" requirements or by chevron step 2. it probably is not relevant.

2. yeah interpreting the organic statute is a necessary but not sufficient condition for chevron deference (this is where mead and the other chevron step zero cases come into play). the agency can determine its scope of authority so long as the statute is ambiguous and its interpretation is reasonable.

[eliekedourie]

Suppose the challenge is that the agency was required by the statute to base its decision on the best data available and that the challenge is that they didn't. What sort of review applies?

[smittytron3k]

Suppose the challenge is that the agency was required by the statute to base its decision on the best data available and that the challenge is that they didn't. What sort of review applies?

706(2)(A) (arbitrary, capricious, abuse of discretion, or otherwise unsupported by law) provides the standard of review. Again, the Chevron issue is completely distinct from the standard-of-review issue. Impossible to answer this question without knowing whether the agency has promulgated a regulation that elaborates its standards for classification of endangered species pursuant to the ESA (or included that reasoning in its regulation).

[eliekedourie]

No. No elaboration on the standard for classification. Just allegedly improper application of the existing standard.

[ph14]

Quick question. So if a statute provides for criteria for which animals the administering agency can designate as endangered, and the agency (arguably) applies the criteria and promulgates a rule identifying the animal as endangered (entitling it to all sorts of statutory protections), is that rule considered a legal conclusion subject to Chevron? Is that even really a rule? It's prospective and broadly applied, but it's essentially just the application of certain criteria to an animal and a resulting designation. It almost feels like licensing. It's not really an interpretation of the statute...

It's been a long day and I'm feeling a little lost. Anyone want to help?

If they're promulgating a rule as opposed to interpreting the statute, then it wouldn't be entitled to Chevron deference, right?

Wrong. The mode of agency action, as long as it satisfies Mead & Christensen, is immaterial. Here, the agency is interpreting its organic act in adopting the rule, so the rule would be subject to Chevron. Whether or not the rule received deference would depend on whether steps one and two were satisfied.

So I guess it depends if you're characterizing that action as interpreting the statute then it would be entitled to Chevron deference.

Yep.

And the rule that was promulgated would be subject to arbitrary and capricious review?

Yes, under State Farm.

Perhaps that would be an informal adjudication though? It doesn't seem like a rule of general applicability, but rather individual applicability (to that one animal). So still A&C review, though?

Yes on A&C, no on informal adjudication. Things would be different if, for instance, a rancher proposed to graze his cattle on a particular plot of federal land and the agency responded by issuing an incidental take statement, indicating that the grazing would adversely affect a species already identified as endangered.

Great, thanks so much GTL. It's very much appreciated. Struggling to get my head around this material.

[ph14]

Suppose the challenge is that the agency was required by the statute to base its decision on the best data available and that the challenge is that they didn't. What sort of review applies?

This is arbitrary/capricious sec. 706 review. It is not substantial evidence review because the allegation is not that the agency's action was unsupported by substantial evidence. Instead, the challenge is that the evidence the agency relied upon -- whether "substantial" or not -- was not of the kind required by the statute.

So challenges to factual sufficiency of evidence for a formal rulemaking or adjudication = substantial evidence (must be the "whole record" including any adverse information; this is the same standard as a deciding whether to direct a verdict or not)
Challenges that an agency exercised their discretion improperly = arbitrary and capricious ("hard look" review under Overton Park and State Farm)
Challenges concerning an agency's interpretation of their own organic statute = Chevron framework for judicial review (deference if ambiguous statute and agency's interpretation was rational, no deference if unambiguous)

All of these are "substantive" challenges as opposed to "procedural."

Is that right? So what if an agency interprets their own organic statute (an ambiguous one), to say that they had the power to regulate in a certain area. Then they enforce that interpretation by saying a business (falling into the zone of power) was violating it and filed suit seeking an injunction.

So would the interpretation be subject to the Chevron framework (and most likely deference), but the enforcement action subject to arbitrary and capricious?

[Thedude737]

For those of you taking leg reg, I'm having a difficult time differentiating between a anti delegation canon and the constitutional avoidance canon (when avoiding the constitutional issue of the non delegation doctrine).

[ph14]

So if statute required an agency to determine whether something was "unreasonable" and then the agency determined something was unreasonable. Would the agency get Chevron deference on the thing they determined was unreasonable?

[cjw55]

Hi everyone, thanks for all of the explanations provided previously in this thread, the answers have been very informative and helpful. Also, it's been mentioned previously, but the Beerman book "Inside Admin Law" really is quite good and is highly recommended for those who have time to use it.

One of my largest unanswered questions left is the exact relevance of Mead in the scope of judicial review, and Mead's relation to Chevron, etc. I was wondering if people could comment on my understanding of Mead/provide critique/better explanations.

My (incomplete) understanding is that Mead is that it should be regarded as a Chevron step Zero in deciding whether the agency's action will get deference when interpreting its enabling statute. It appears (to me) that Mead holds that an agency will get judicial deference to its interpretation of the enabling statute when (1) Congress has delegated the agency authority to issue rules/orders with the force of law and (2) the agency interpretation claiming deference was promulgated under that authority.

Further, the essential problem in Mead was the the US Customs Services was making all of these classification decisions on an informal basis. So this type of classification decision/ruling falls under informal adjudication and would be not entitled to Chevron deference. Mead seems to not be an issue when the agency is using either type of rulemaking and formal adjudication (correct?). After Mead, are all informal adjudications to be judged using the 2 Mead criteria mentioned above in order to determine if Chevron deference applies. Last, even if an informal adjudication doesn't pass Mead's test, it may still get Skidmore deference (yes?)

Thanks for any/all responses, advice, critiques.
Good luck to all.

[deebs]

Have the test friday, closed book. Doable in three days? I've read the nutshell!

[moandersen]

have this test tomorrow and its open book - thank god. any flow charts around for those of us who are visual learners?

[ObLaDiObLaDa]

Hate admin.

[c3pO4]

me on my admin law final http://www.youtube.com/watch?v=ewckPYePzbU

[beach_terror]

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

I have something that will make you feel much better! Apparently, we're both in the same admin and I am certain that you will at least do significant better than one person in the class.

I've got 5 exams, I'm a 3L with no motivation and I cannot put into words how much I despise admin and how little I currently know going into this exam.

If you're wondering who in the class I am, it's a waste of time since I raised my hand mayyybe all of one time.

I never raised my hand. What general area of the class did you sit in?

[myq]

have this test tomorrow and its open book - thank god. any flow charts around for those of us who are visual learners?

+1

[deebs]

have this test tomorrow and its open book - thank god. any flow charts around for those of us who are visual learners?

+1

Can I have your outline??

On a serious note, anyone have any practice multiple choice questions?

[quiver]

So I'm feeling pretty comfortable with the material in this class but I'm having trouble issue spotting for some reason. Everything seems like it could be everything; I've never run into anything like this before. Does anyone have any tips?

[ObLaDiObLaDa]

I never raised my hand. What general area of the class did you sit in?

When prof was teaching at the podium, I was on his left (aka, end of the room closer to the bathrooms), near the back.

I wonder if I can manage to somehow make a list of all the pertinent quotes/page #s/meanings in less than 24 hours while also trying to study for a closed book 2 credit course I know nothing about. I'm going to find out very soon.

[beach_terror]

I never raised my hand. What general area of the class did you sit in?

When prof was teaching at the podium, I was on his left (aka, end of the room closer to the bathrooms), near the back.

I wonder if I can manage to somehow make a list of all the pertinent quotes/page #s/meanings in less than 24 hours while also trying to study for a closed book 2 credit course I know nothing about. I'm going to find out very soon.

I sat in the second row on the other side of the classroom (near everyone's favorite participator). Admin is brutal, I'm amazed it's not a 4 credit course.