Another admin question for you beautiful scholars Forum

[PinkCow]

In a prior proceeding, admin board interprets its statute and rules that an employer can't do X.

A little while later, admin puts out a "policy statement" basically saying it will not bring enforcement actions when employers do X.

Group wants to challenge this.


What do?

[ph14]

In a prior proceeding, admin board interprets its statute and rules that an employer can't do X.

A little while later, admin puts out a "policy statement" basically saying it will not bring enforcement actions when employers do X.

Group wants to challenge this.


What do?

That seems like an invalidly adopted legislative rule, rather than a policy statement. A policy statement can't constrain the agency's exercise of discretion, which this would seem to do (Community Nutrition Institute v. Young).

[JamMasterJ]

That or attack the original statute's formation

[PinkCow]

In a prior proceeding, admin board interprets its statute and rules that an employer can't do X.

A little while later, admin puts out a "policy statement" basically saying it will not bring enforcement actions when employers do X.

Group wants to challenge this.


What do?

That seems like an invalidly adopted legislative rule, rather than a policy statement. A policy statement can't constrain the agency's exercise of discretion, which this would seem to do (Community Nutrition Institute v. Young).

Yeah that's what I figured. The thing that throws me is the fact that it's an inaction - does this matter for reviewability?

Also, what is meant by "attack the original staute's formation?" Are you talking like Chevron interpretation?

[ph14]

In a prior proceeding, admin board interprets its statute and rules that an employer can't do X.

A little while later, admin puts out a "policy statement" basically saying it will not bring enforcement actions when employers do X.

Group wants to challenge this.


What do?

That seems like an invalidly adopted legislative rule, rather than a policy statement. A policy statement can't constrain the agency's exercise of discretion, which this would seem to do (Community Nutrition Institute v. Young).

Yeah that's what I figured. The thing that throws me is the fact that it's an inaction - does this matter for reviewability?

Also, what is meant by "attack the original staute's formation?" Are you talking like Chevron interpretation?

I think what the poster meant was attack the original interpretation of the statute, but I'm not sure your group would want to do this, as evidently they want the original interpretation to be enforced given that they are attacking the interpretation basically stopping the enforcement of the original statutory interpretation. Here, your group would not actually be challenging agency inaction. You are challenging the promulgation of the policy statement as a procedurally deficient legislative rule.

Agency inaction would be different. For example, assume they never promulgate the policy statement, and they are just relying on the original statutory interpretation that the employer can't do X. The agency then does not bring an enforcement action against a party who does X, in violation of the original statutory interpretation. Your group challenges the agency's failure to take enforcement action. This is a challenge to agency inaction, specifically, an agency decision not to enforce a provision. The general presumption is that the challenge to an agency failure to enforce is unreviewable (Heckler v. Chaney).

There is, however, another type of agency inaction that is treated differently. That is an agency's failure to promulgate a rule. Take, for example, the facts of Massachusetts v. EPA: a group challenged the EPA's failure to regulate greenhouse gases. The Supreme Court held that this type of agency inaction was presumptively reviewable (albeit perhaps more deferential review).

[JamMasterJ]

generally you wouldn't (I was thinking the policy statement was an action for some reason) - though there could be an exception possibly if you were saying that they failed to consider X in the original promulgation, where X would make the decision not to act improper.

[PinkCow]

Thanks for the replies guys. Makes much better sense.

ph, I hope you're not in my admin law class.

[PinkCow]

Sorry one more followup in case anyone's still up:


The issue here is NOT that the agency is changing its position re: X. It's free to do that (and could do that either through a future adjudication or rule-making) as long as it gives reasons (FCC v. Fox; State Farm). Rather, the issue is that the "policy statements" cabin the admin's discretion to such a degree that they're really more legislative, and thus have to go through N&C?

[kalvano]

In a prior proceeding, admin board interprets its statute and rules that an employer can't do X.

A little while later, admin puts out a "policy statement" basically saying it will not bring enforcement actions when employers do X.

Group wants to challenge this.


What do?

Challenge it?

Did the agency exceed its authority statute? Was there an "intelligible principle" or did it violate non-delegation?

Was the administrator properly appointed?

The agency interpreted a statute - Chevron.

The "policy statement" sounds like a new rule - notice & comment required?

They are changing a previously held rule - did they provide adequate reasons as to why they did so, or was it arbitrary and capricious?



That would be my plan of attack on a question like this one.

[PinkCow]

Thanks for the reply - nice setup. BTW I've been looking through your answer models you've posted here. very helpful!!!