The Constitutionality of Regulatory Delegations – Gundy v. United States
1. Case Heading:
Parties:
Year: 2019
Court: US Supreme Court
2. Disposition: Affirm.
3. Holding: SORNA’s delegation is not unconstitutional.
4. Issue: Did Congress make an impermissible delegation when it instructed the attorney general to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?
5. Procedural History: The District Court and the Court of Appeals rejected Gundy’s claim.
6. Facts: Gundy is a sex offender before SORNA’s enactment. Gundy lived in New York after prison but never registered as a sex offender. Gundy was convicted for failing to register in violation of SORNA. Gundy argued that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s registration requirements to pre-Act offenders.
7. Rule:
8. Reasoning: Article 1: all legislative Powers shall be vested in a Congress.
A nondelegation inquiry begins and ends with statutory interpretation.
SORNA’s requirements applied to pre-Act offenders only once the AG said they did, as opposed to applying automatically of their own force.
The words of a statute must be read in their context and with a view to their place in the overall statutory scheme. The Court often looks to history and purpose to divine the meaning of language.
SORNA’s statement of purpose makes clear that SORNA was supposed to apply to all pre-Act offenders. The Act’s definition of sex offender makes the same point. The Act’s legislative history backs it up.
A delegation is constitutional so long as Congress has set out an Intelligent principle to guide the delegee’s exercise of authority.
Practical problem: pre-Act offenders were unable to comply with the Act’s initial registration requirements.
Dissent: congress couldn’t agree what to do about Pre-Act offenders and passed the problem to the Attorney General.
Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people.
The current mutated version of the intelligible principle remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.
If SORNA allows the AG as much authority… it would present a nondelegation question.
While Congress can enlist considerable assistance from the executive branch, it may never hand off the power to write his own criminal code.
The Constitutionality of Regulatory Delegations – Whitman v. American Trucking Associations, Inc.
1. Case Heading:
Parties:
Year: 2001
Court:
2. Disposition: Reverse.
3. Holding: Congress must provide substantial guidance on setting air standards that affect the entire national economy. Section 109(b)(1) requires the EPA to set air quality standards at the level that is requisite.
4. Issue:
5. Procedural History: DC Circuit stated that EPA lacked any determinate criteria for drawing lines. It has failed to state intelligibly how much of these pollutants is too much. The lower court stated that EPA could avoid the unconstitutional delegation by adopting a restrictive construction of section 109(b)(1) and remanded the NAAQS to the agency.
6. Facts: The Clean Air Act tasks the EPA with issuing national ambient air quality standards for air pollutants. EPA revised the NAAQS for particulate matter and ozone and trucking association and others challenged the standards in court, arguing that EPA’s interpretation of section 109(b)(1) violated the nondelegation doctrine because the agency had not provided an intelligible principle to guide its exercise.
7. Rule:
8. Reasoning: In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. When Congress confers decision making authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.
The text of section 109(b)(1) requires that the EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air. It requires the EPA to set air quality standards at the level that is requisite-not lower or higher than is necessary-fits comfortably within the scope of discretion permitted by our precedent.
The Constitutionality of Regulatory Delegations – JW Hampton Jr, Co v. US
1. Case Heading:
Parties:
Year: 1928
Court: US Supreme Court
2. Disposition: Sustain the delegation.
3. Holding: What the statute sought to do was perfectly clear and intelligible.
4. Issue:
5. Procedural History:
6. Facts: The Tariff Act of 1922 directed the President to change the original statutory schedule of tariffs on various goods whenever the President, after investigating costs for articles produced domestically compared to similar articles made abroad, shall find that the duties do not equalize the differences in costs of production. The Act authorized the President to act only after receiving the report of a new Tariff Commission.
7. Rule:
8. Reasoning: The same principle that permits Congress to exercise its ratemaking power in interstate commerce by declaring the rule which shall prevail in the legislative fixing of rates… justifies a similar provision for the fixing of customs duties on imported merchandise.
If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation.
The Constitutionality of Regulatory Delegations - Schechter Poultry Corp. v. United States
1. Case Heading:
Parties:
Year: 1935
Court: US Supreme Court
2. Disposition:
3. Holding: Invalidated section 3. The codemaking authority this conferred is an unconstitutional delegation of legislative power.
4. Issue:
5. Procedural History:
6. Facts: The Court considered section 3 of the NIRA, which authorized the President to approve codes of fair competition for a trade or industry, upon application. The Schechter company was indicted on multiple counts of violating the Live Poultry Code that was approved.
7. Rule:
8. Reasoning: The authority sought to be conferred by section 3 was not mrerely to deal with unfair competitive practices but to authorize new and controlling prohibitions through codes of laws which would embrace… in order to bring about their rehabilitation correction, and development. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.
Administrative Procedure Act: requires that a rule be made on the record after opportunity for an agency hearing.
Formal Rulemaking - United States v. Florida East Coast Ry
1. Case Heading:
Parties:
Year: 1973
Court: Supreme Court of the US
2. Disposition: Reverse and remand.
3. Holding: the Commission’s proceeding was governed only by section 553 of the APA and that appellees received the hearing required by section 1(14)(a) of the ICA. The Commission’s procedure satisfied both the provisions of section 1(14)(a) of the ICA and of the APA, and were not inconsistent with the prior decisions of this Court.
4. Issue:
5. Procedural History: Both of the courts that reviewed this order of the Commission concluded that its proceedings were governed by the stricter requirements of section 556 and 557 of the APA. The lower courts agreed with the railroads on the procedural issue.
6. Facts: The Interstate Commerce Commission by regulation established incentive rates to encourage railroads to send back empty freight cars. The Interstate Commerce Act directed the ICC to act after hearing and the ICC limited the railroads to written submissions. The railroads argued that the rule was flawed and claimed prejudice under section 556(d).
7. Rule:
8. Reasoning: The phrase “after hearing” in section 1(14)(a) of the ICA does not have an effect of triggering the provisions of sections 556 and 557.
The requirement of a hearing contained in section 1(14)(a) did not require the Commission either to hear oral testimony, to permit cross-examination of Commission witnesses, or to hear oral argument.
Appellee railroads contend that the Commission procedure fell short of that mandated by the hearing requirement of section 1(14)(a). -> the hearing requirement of section 1(14)(a) of the Act was met.
The incentive payments proposed by the Commission were applicable across the board to all of the common carriers by railroad subject to the ICA. The factual inferences were used in the formulation of a basically legislative-type judgment, for prospective application only, rather than in adjudicating.
Dissent: the Commission is bestowed broad discretionary power to determine rates that may have devastating effects on a line. Appellees were not afforded the hearing guaranteed by section 1(14)(a) of the ICA and sections 553,556,557.
Section 553 Notice and Comment Rulemaking- Vermont Yankee v. NRDC
1. Case Heading:
Parties:
Year: 1978
Court: Supreme Court of the US
2. Disposition: Reverse and remand
3. Holding: Congress has made a choice to at least try nuclear energy… The fundamental policy questions resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action.
4. Issue:
5. Procedural History: NRDC and other groups sought judicial review in the DC circuit. With respect to license, the court ruled that in the absence of effective rulemaking proceedings, the Commission must deal with the impact of fuel reprocessing and disposal in individual licensing proceedings. The court found rulemaking proceedings inadequate and overturned the rule. Determination of license was remanded.
6. Facts: Nuclear Regulatory Commission issued the Vermont Yankee Nuclear Power Company a license to build a nuclear power plant in Vernon, Vermont. Over Natural Resources Defense Council’s objection, the environmental effects of reprocessing spent fuel and disposing of reprocessing wastes were excluded from consideration at the hearing on the operating license. Commission began rulemaking to deal with the question of consideration of environmental effects. The Notice of Proposed Rulemaking suggested an alternative where a specified set of numerical values for environmental impacts, which would then be incorporated into a table to determine the overall cost-benefit balance for each operating license. The Commission adopted it and reaffirmed the grant of Yankee’s license.
7. Rule:
8. Reasoning: The environmental effects of waste by a nuclear power plant is indistinguishable from that of coal-burning power plant; the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings.
Absent constitutional constraints or extremely compelling circumstances the admin agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multidinous duties.
NRDC argues that section 553 merely establishes lower procedural bounds and that a court may routinely require more. -> rejected because Congress intended discretion of the agencies and not courts be exercised in determining when extra procedural devices should be employed.
The Court reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing. It compels the agency to conduct all rulemaking proceedings with full panoply of procedural devices normally associated only with adjudicatory hearings.
The review misconceives the nature of the standard for judicial review of an agency rule. Informal rulemaking need not be based solely on the transcript of a hearing held before an agency. The adequacy of the record turns on whether the agency has followed the statutory mandate of the APA. This sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but serious interfere with that process.
Nothing in the APA permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed by the Commission.
Notice – Center for Science in the Public Interest v. Perdue
1. Case Heading:
Parties:
Year: 2020
Court: USDC District of Maryland
2. Disposition: The Final Rule is vacated and remanded to the administrative agency.
3. Holding: The Final Rule violates the APA.
4. Issue:
5. Procedural History:
6. Facts: Schools participating in the National School Lunch Program and the School Breakfast Program are required to serve meals that are consistent with the goals of the most recent Dietary Guidelines for Americans. The Congress has directed USDA to promulgate rules. The School Meals Report, published in 2010 by the Committee, was commissioned by USDA. USDA promulgated the 2012 Rule that aligned the programs with the Dietary Guidelines and was largely based on the Report. In 2017, USDA published an Interim Final Rule extending the programs. In 2018, USDA published the Final Rule. CSPI contends that the Final Rule violates the APA because it is not a logical outgrowth of the Interim Final Rule.
7. Rule:
8. Reasoning: The Final Rule is not a logical outgrowth of the Interim Final Rule. USDA’s changes in rule are not in character with the original scheme of the Interim Final Rule.
USDA argues that because it received comments related to the complained-of changes, the Interim Final Rule must have provided sufficient notice. -> unpersuasive; the proposed rule still must fairly apprise interested parties of the potential scope and substance of a substantially revised final rule.
Interim Final Rule’s invitation to comment extended only to whether USDA should retain or eliminate flexibilities; not on eliminating any standards altogether, making the presence of related comments insignificant.
The final rule revealed that the agency had completely changed its position and the Interim Final Notice did not provide sufficient notice of the Final Rule.
The Logical Outgrowth Test - Long Island Care at Home, Ltd. v. Coke
1. Case Heading:
Parties:
Year: 2007
Court: Supreme Court of the US
2. Disposition:
3. Holding:
4. Issue: Whether Fair Labor Standards Act’s domestic services exemption to wage and hour rules applied to domestic workers who provide companionship services and are employed by an agency.
5. Procedural History: The Court of Appeals interpreted section 553(b)(3) to mean that the final rule the agency adopts must be a logical outgrowth of the rule proposed.
6. Facts: The Department of Labor proposed a rule that would have placed outside the domestic services exemption individuals employed by third-party employers whom the Act had covered prior to 1974. The implication was that companionship workers employed by third-party enterprises not covered by the FLSA would be included within the section 213(a)(15) exemption. The Department withdrew the proposal. The result exempted all third-party-employed companionship workers from the Act.
7. Rule:
8. Reasoning: The Court had an opportunity to address when an agency’s change in course might render the initial notice inadequate.
An opportunity to comment- United States v. Nova Scotia Food Prods. Corp.
1. Case Heading:
Parties:
Year: 1977
Court: US Court of Appeals for the Second Circuit
2. Disposition: Reverse the grant of the injunction and direct that the complaint be dismissed.
3. Holding: The regulation, as it affects non-vacuum-packed hot-smoked whitefish, was promulgated in an arbitrary manner and is invalid.
4. Issue: (1) whether, in the light of the rather scant history of botulism in whitefish that species should have been considered separately; (2) whether the application of the TTS requirements made the whitefish commercially unsaleable; and (3) whether the agency recognized that prospect, but decided that the public health needs should prevail even if whitefish industry dies. Whether the procedure was inadequate because (i) it failed to disclose to interested parties the scientific data and the methodology upon which it relied; and (ii) it failed utterly to address itself to the pertinent question of commercial feasibility.
5. Procedural History: The District Court for the EDNY enjoined the appellants from processing hot smoked whitefish except in accordance with time-temperature-salinity regulations. The injunction was granted.
6. Facts: In 1969, after incidents of foodborne botulism, the FDA issued an NPRM concerning the processing of fish commonly sold as smoked and/or salted fish. The FDA issued the rule in 1970, modifying the initial proposal in response to comments. The agency declined to make special provisions for particular species of fish until processors of a given species proposed a substitute they could prove adequate to protect the public from botulism. Six years later, the FDA brought a district court action to enforce its rule against Nova, a whitefish processor.
7. Rule:
8. Reasoning: Appellants Nova argues that the requirements could not be met if a marketable whitefish was to be produced; (1) the regulation is invalid because it is beyond the authority delegated by the statute, (2) the FDA improperly relied upon undisclosed evidence in promulgating the regulation and it is not supported by the administrative record, and (3) there was no adequate statement setting forth the basis of the regulation.
The Commissioner of Food and Drugs employed informal notice-and-comment procedures. The Commissioner issued the final regulations. The intervenor and the Bureau suggested “specific parameters” be established; particular processing parameters for different species of fish on a species by species basis. The Commissioner imposed the TTS requirement on all species.
Nova argues that unless the scientific data are spread upon the public record, criticism of the methodology is rendered impossible. -> court: when the pertinent research material is readily available and the agency has no special expertise, there is no reason to conceal the scientific data relied upon from the interested parties. -> the agency may be held not to have considered all the relevant factors. -> the scientific data should have been disclosed to focus on the proper interpretation of insanitary conditions.
Nova argues that the concise general statement required by APA was inadequate. The agency was silent to vital questions. -> the admin process should disclose whether the proposed regulation is considered to be commercially feasible or whether other considerations prevail.
- American Radio Relay League v. FCC
1. Case Heading:
Parties:
Year: 2008
Court: DC Circuit
2. Disposition:
3. Holding: FCC had violated section 553.
4. Issue:
5. Procedural History:
6. Facts: The FCC adopted a rule approving the installation of devices on electric power lines that would transmit broadband Internet access. This technology also had the potential to interfere with licensed amateur ham radio operators. The ARRL challenged the rule. The FCC placed five studies of technical data from the field tests in the rulemaking record in redacted form after the rules had been promulgated.
7. Rule:
8. Reasoning: Studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. The League might have had something useful to say if given the opportunity to comment on the unredacted studies.
The procedures invalidated in Yankee were not anchored to any statutory provision. The court merely applies settled law to the facts. The court is enforcing the agency’s procedural choice by ensuring that it conforms to APA requirements.
It is one thing for the Commission to give notice and make available for comment the studies on which it relied in while explaining its non-reliance on certain parts. It is quite another to provide notice and opportunity for comment on only those parts of the studies that the Commission likes best.
Tatel concurrence: APA means that the agency must make the whole record available.
Kavanaugh: courts have incrementally expanded those APA procedural requirements well beyond what the text provides. They have grown narrow section 706 arbitraty and capricious review into a far more demanding test. These twin lines of decisions have transformed rulemaking from the simple into a laborious.
Response to comments- Ohio v. EPA
1. Case Heading:
Parties:
Year: 2024
Court: US Supreme Court
2. Disposition:
3. Holding: concern that the EPA failed to consider how its cost-effectiveness methodology might yield different results if some of the states were not subject to the federal plan had been raised with “reasonable specificity” under the CAA.
4. Issue:
5. Procedural History:
6. Facts: the Supreme Court stayed the EPA from enforcing the Clean Air Act’s “Good Neighbor Provision” against nearly two dozen states. After the EPA set new National Ambient Air Quality Standards for ozone, states had to submit State Implementation Plans that ensure that their emission sources do not “contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” EPA determined that 23 SIPs did not meet the Good Neighbor mandates of the CAA and issued its own binding Federal Implementation Plan (FIP) through a rulemaking process for those states.
7. Rule:
8. Reasoning: Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. it does not appear in the final rule. the applicants are likely to prevail on their argument that EPA’s final rule was ‘not reasonably explained.’
When faced with comments like the ones it received, EPA needed to explain why it believed its rule would continue to offer cost-effective improvements in downwind air quality with only a subset of the States it originally intended to cover.
The Barrett dissent noted an issue exhaustion concern—that the challengers should have raised their concern that the final rule was not reasonably explained first in a petition for reconsideration.
It is not clear that any commenter raised with ‘reasonable specificity’ the underlying substantive issue: that the exclusion of some States from the FIP would undermine EPA’s cost-effectiveness analyses and resulting emissions controls.
Requiring more from EPA risks the ‘sort of unwarranted judicial examination of perceived procedural shortcomings’ that might ‘seriously interfere with that process prescribed by Congress.’
Interpretative rules and general statements of policy are known as guidance documents (nonlegislative rules) that cover a wide range of materials promulgated by agencies that explain their views on an issue of policy by way of providing guidance rather than creating binding law.
The guidance exception- American Mining Congress v. Mine Safety and Health Administration
1. Case Heading:
Parties:
Year: 1993
Court: US Court of Appeals for the DC
2. Disposition: the petitions for review are dismissed.
3. Holding: 1992 PPL is an interpretive rule.
4. Issue: whether Program Policy Letters of the Mine Safety and Health Administration, stating the agency’s position that certain x-ray readings qualify as diagnoses of lung diseases within the meaning of agency reporting regulations, are interpretive rules under the Administrative Procedure Act.
5. Procedural History:
6. Facts: The Federal Mine Safety and Health Act regulates health and safety conditions in the nation’s mines and empowers the Secretary of Labor to enforce the statute and relevant regulations. The Act requires every operator of a mine to establish and maintain such records, make such reports, and provide such information. Part 50 regulations were adopted via notice-and-comment rulemaking. It requires mine operators to report to the MSHA within ten days each accident, or occupational injury/illness. Whenever any illness is diagnosed, the operator must report it within ten days. To resolve ambiguities, the MSHA issues Program Policy Letters to coordinate and convey agency policies, guidelines, and interpretations. The MSHA did not follow the notice and comment requirements of section 553 in issuing three PPLs and, in defending its omission, relies solely on the interpretive rules exemption.
7. Rule:
8. Reasoning: The “intent to exercise” language can be found in instances. The first is where, in the absence of a legislative rule by the agency, the legislative basis for agency enforcement would be inadequate.
Second, an agency seems likely to have intended a rule to be legislative if it has the rule published in the Code of Federal Regulations. Section 1510 limits publication in that code to rules having general applicability and legal effect. Third, if a second rule repudiates or is irreconcilable with a prior legislative rule, the second rule must be an amendment of the first and an amendment must itself be legislative.
The legislative or interpretative status of the agency rules turns on the prior existence or non-existence of legal duties and rights.
Whether the purported interpretative rule has legal effect: (1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties (2) whether the agency has published the rule in the Code of Federal Regulations (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule amends a prior legislative rule. If affirmative to any, we have a legislative, not an interpretive, rule.
Petitioners have made no attack on the PPLs’ substantive validity. Nothing we say upholding the agency’s decision to act without notice and comment bars any such substantive claims.
The Guidance Exception - National Mining Association v. McCarthy
1. Case Heading:
Parties:
Year: 2014
Court: US Court of Appeals for the DC
2. Disposition:
3. Holding: The Final Guidance is not a final agency action subject to pre-enforcement review. We do not decide plaintiffs’ challenges to the legality of the Final Guidance.
4. Issue:
5. Procedural History: The court rejected the plaintiffs’ argument that the ECP exceeded the authority and upheld the creation of the Process without notice and comment under the APA’s exception for rules of agency organization, procedure, or practice. The court had to decide whether Final Guidance was a legislative rule or a general policy statement.
6. Facts: In the 1972 Clean Water Act and the 1977 Surface Mining Control and Reclamation Act, Congress struck a balance between the need for coal and the desire to mitigate surface coal mining’s environmental effects. To conduct a coal mining project, a business must obtain permits from the Department of Interior or a federally approved state permitting program. If the project would result in the discharge of soil or other pollutants into navigable waters, the mining project requires two Clean Water Act permits. In June 2009, the Army Corps of Engineers and EPA adopted Enhanced Coordination Process to facilitate their consideration of certain CWA permits. In 2011, EPA promulgated a Final Guidance document relating to those CWA permits. Plaintiffs challenged the ECP and Final Guidance as exceeding EPA’s authority under the CWA and SMCRA.
7. Rule:
8. Reasoning: The court may review Final Guidance under the APA only if it is “final.” An agency action is final only if it is both “the consummation of the agency’s decisionmaking process” and a decision by which “rights or obligations have been determined” or from which “legal consequences will flow.”
EPA characterizes the Final Guidance as a general policy statement. Court: is the Final Guidance a legislative rule or a general statement of policy?
An agency action that purports to impose legally binding obligations or prohibitions on regulated parties is a legislative rule. An agency action that sets forth legally binding requirements for a private party to obtain a permit or license is a legislative rule. An agency action that merely explains how the agency will enforce a statue or regulation-how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule0is a general statement of policy.
The actual legal effect of the agency action in question on regulated entities. -> favors EPA; as a legal matter, the final guidance is meaningless. The Final Guidance may not be relied on by EPA as a defense in a proceeding challenging the denial of a permit. The Final Guidance does not impose any requirements in order to obtain a permit or license.
The agency’s characterization of the guidance -> Final Guidance disclaims any intent to require anyone to do anything or to prohibit anyone from doing anything.
Plaintiffs argue that EPA’s statutory rule makes permit applicants have no choice when faced with EPA recommendations except to fold. EPA states the Final Guidance has no legal impact and one is free to ignore it.
Legally binding on whom? - Texas v. United States
1. Case Heading:
Parties:
Year: 2015
Court: US Court of Appeals 5th circuit
2. Disposition:
3. Holding: The states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion.
4. Issue:
5. Procedural History:
6. Facts: The Obama Administration’s executive action promulgated by the Department of Homeland Security called Deferred Action for Parents of Americans and Lawful Permanent Residents, based on earlier action of Deferred Action for Childhood Arrivals. DACA allowed teenagers who had been brought to the US as children without proper documentation to be protected from removal and to work legally.
7. Rule:
8. Reasoning: Distinguishing policy statements from substantive rules: whether the rule (1) imposes any rights and obligations and (2) genuinely leaves the agency and its decision makers free to exercise discretion.
There was conflicting evidence on the degree to which DACA allowed for discretion.
-the pattern of enforcement by the dapa memo suggest that the facts are not discretionary.
SCt, Deference, and Distinction between legislative and interpretive rule - Kisor v. Wilkie
1. Case Heading:
Parties:
Year: 2019
Court: Supreme Court of the US
2. Disposition: Upheld judicial deference, known as Auer deference, for interpretive rules under certain conditions.
3. Holding: Courts retain the final authority to approve the agency’s reading of a notice-and-comment rule.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: Kisor claims that Auer circumvents the APA’s rulemaking requirements. The Court rejects the argument.
Gorsuch dissent: Auer is incompatible with the APA’s instructions in section 553.
Biden administration issued guidance documents on: discrimination based on sexual orientation and gender identity, abortion, and workplace harassment.
Executive Order 12866 mandates the two White House offices to play an important role in contemporary rulemaking.
Executive Order 13771 requires that whenever an agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed, and capped the total incremental cost of all new regulations, including repealed regulations, to a set amount.
Formal Adjudication - Citizens Awareness Network, Inc. v. United States
1. Case Heading:
Parties:
Year: 2004
Court: Court of Appeals for the First Circuit
2. Disposition:
3. Holding: We cannot say that the Commission’s desire for more expeditious adjudications is unreasonable, nor can we say that the changes embodied in the new rules are an eccentric or a plainly inadequate means for achieving the Commission’s goals.
4. Issue:
5. Procedural History:
6. Facts: The Nuclear Regulatory Commission is the federal agency charged with regulating the use of nuclear energy, including the licensing of reactors used for power generation. The Atomic Energy Act requires the Commission to hold a hearing upon the request of any person whose interest may be affected before granting a new license, a license amendment, or a license renewal. Under the new rules, reactor licensing hearings are, for the most part, to be conducted according to a less elaborate set of procedures.
7. Rule:
8. Reasoning: the mainstay of the petitioners’ challenge is the proposition that the new rules exceed the Commission’s statutory authority; the new rules fail to satisfy the NRC conducting licensing hearings on the record.
Objections: Full Discovery and Cross examinations. Vermont Yankee defeats this argument.
Formal adjudication - Seacoast Anti-Pollution League v. Costle
1. Case Heading:
Parties:
Year: 1978
Court: First Circuit
2. Disposition:
3. Holding: remand because the Administrator based his decision on material not part of the record.
4. Issue:
5. Procedural History: the EPA Regional Administrator approved PSCO’s application but reversed after holding a public hearing. EPA Administrator convened a panel of six in-house advisors and approved PSCO’s application.
6. Facts: the Public Service Company of New Hampshire sought a permit to discharge heated water into the Hampton-Seabrook Estuary, which runs into the Gulf of Maine. Water would be run through PSCO’s proposed nuclear generating station to remove waste heat generated by the reactor; it would then be discharged back into the Gulf 39 degrees F warmer than at intake. Occasional discharges would be as hot as 120 F. Section 301 of the Federal Water Pollution Control Act, or Clean Water Act, prohibits the discharge of any pollutant without obtaining an EPA permit. PSCO applied for an exemption under section 316 as well as a discharge permit under section 402.
7. Rule:
8. Reasoning: Petitioners object to the use of a panel of EPA scientists. The decision is Administrator’s simply because agency experts helped him to reach it.
Report where the technical panel rebuts the Regional Administrator’s finding that PSCO had failed to supply enough data, the record did not support the conclusion until supplemented by the panel.
Formal adjudication - Castillo-Villagra v. INS
1. Case Heading:
Parties:
Year: 1992
Court: 9th Circuit
2. Disposition: Vacate and remand the BIA decision.
3. Holding: notice in administrative proceedings should be broader than the judicial not subject to reasonable dispute test and endorsed a rule of convenience based on what the trier of fact thinks he knows.
4. Issue:
5. Procedural History:
6. Facts: Villagra and her two adult daughters entered the US, conceded deportability, and sought asylum. They claimed to have been members of a political group that opposed the Sandinista regime in Nicaragua. The Judge denied asylum, finding that the mother was lying and none had fear of persecution. The Board of Immigration Appeals affirmed.
7. Rule:
8. Reasoning: Whether notice can be taken, and whether rebuttal evidence must be allowed, are different questions. The agency should have warned that it intended to take notice that the fear of persecution no longer was well-founded, and then given the parties an opportunity to show cause why notice should not be taken of these propositions. The propositions were debatable. Petitioners were never allowed to be heard on these propositions.
Constitutional Framework for Admin Adjudication- Stern v. Marshall
1. Case Heading:
Parties:
Year: 2011
Court: Supreme Court of the US
2. Disposition: Affirmed.
3. Holding: A statute may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely.
4. Issue:
5. Procedural History: The Bankruptcy Court granted summary judgment to Vickie. Pierce argued that Vicki’s counterclaim was not a core proceeding and was outside the Court’s statutory jurisdiction, and the Court of Appeals agreed. Pierce argued that designating all counterclaims core proceedings raised serious constitutional concerns.
6. Facts: Vickie was J. Howard’s wife and married him a year before his death. J. Howard did not include Vickie in his will. Before J. Howard passed way, Vickie filed suit in Texas state probate court, asserting that Pierce, J. Howard’s younger son, fraudulently induced J. Howard to sign a living trust that did not include Vickie. Pierce denied any fraudulent activity and defended the validity of J. Howard’s trust and his will. After J. Howard’s death, Vickie filed a petition for bankruptcy. Pierce filed a complaint in the bankruptcy proceeding that Vickie had defamed him about fraud. Vickie filed a counterclaim for tortious interference with the gift.
7. Rule:
8. Reasoning: Pierce brought an Article III challenge to a bankruptcy court’s resolution of a debtor’s suit.
Vickie’s counterclaim cannot be deemed a matter of public right that can be decided outside the Judicial Branch.
Vickie’s counterclaim does not fall within any of the varied formulations of the public rights exception in this Court’s cases.
This case involves the entry of a final, binding judgment by a court with broad substantive jurisdiction, on a common law cause of action, when the action neither derives from nor depends upon any agency regulatory regime.
A bankruptcy court can no more be deemed a mere adjunct of the district court.
Scalia concurring: an Article III judge is required in all federal adjudications, unless there is a firmly established historical practice to the contrary.
Breyer dissenting: it fails to follow the analysis that this Court held applicable to the evaluation of claims, claims that a congressional delegation of adjudicatory authority violates separation-of-powers principles derived from Article III.
Involved private, not public, party. The stuff of the traditional actions at common law tried by the Courts of Westminster in 1789 (matters traditionally cognizable under the common law).
Constitutional frameworks for administrative adjudication - CFTC v. Schor
1. Case Heading:
Parties:
Year: 1986
Court:
2. Disposition: Reversed
3. Holding: the congressional scheme does not impermissibly intrude on the province of the judiciary. CFTC adjudication of common law counterclaims is incidental to, and completely dependent upon, adjudication of reparations claims created by federal law, and in actual fact is limited to claims arising out of the same transactions or occurrence as the reparations claim.
4. Issue:
5. Procedural History: the ALJ ruled in Conti’s favor on both Schor’s claims and Conti’s counterclaims. The DC Circuit asked whether CFTC could constitutionally adjudicate Conti’s counterclaims and concluded CFTC could not.
6. Facts: The CFTC is an independent regulatory commission that regulates and oversees the commodities markets. Section 14 of the Commodities Exchange Act provides that any person injured by the violations of the Act or CFTC regulations may apply to the Commission for an order directing the offender to pay reparations to the complainant ad may enforce that order in federal district court. Schor traded commodities futures through Conti and owed Conti a substantial sum. Schor sought reparations before the CFTC, alleging that this debt was the result of Conti’s violations of the CEA. Conti counterclaimed to recover debt.
7. Rule: 1) the extent to which the essential attributes of judicial powr are reserved to Article III courts, 2) the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, 3) the origins and importance of the right to be adjudicated, and 4) the concerns that drove Congress to depart from the requirements of Article III.
8. Reasoning: reject argument that Schor had waived any Article III claim by initiating the action before the CFTC.
The constitutionality of a given congressional delegation of adjudicative functions to a non-Article III body must be assessed by reference to the purposes underlying the requirements of Article III.
Congress has not attempted to withdraw from judicial cognizance the determination of Conti’s right to the sum represented by the debit balance in Schor’s account.
Public rights case because involved application of the rights and rules the Congress created by statute.
The evolving meaning of public rights - Thomas v. Union Carbide Agricultural Products Co.
1. Case Heading:
Parties:
Year: 1985
Court:
2. Disposition:
3. Holding: Use of a registrant’s data to support a follow-on registration serves a public purpose as an integral part of a program safeguarding the public health.
4. Issue:
5. Procedural History:
6. Facts: Federal Insecticide, Fungicide, and Rodenticide Act authorizes EPA to use one manufacturer’s data about health, safety, and environmental effects of its product in considering another manufacturer’s later application to register a similar product. It requires the follow-on registrant to compensate the initial manufacturer for use of this data and provides for binding arbitration when the parties cannot agree on a compensation amount.
7. Rule:
8. Reasoning: reject the contention that the arrangement violated Article III.
Congress may create a private right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.
The right created by FIFRA is not a purely private right, but bears many of the characteristics of a public right.
Public rights case because involved application of the rights and rules the Congress created by statute. Rights invoked under statutes involving complex regulatory schemes.
Public/private rights distinction and the right to a jury trial - Atlas Roofing v. Occupational Safety & Health Review Commission
1. Case Heading:
Parties:
Year: 1977
Court:
2. Disposition:
3. Holding: Congress created a new cause of action, and remedies, unknown to the common law, and placed their enforcement in a tribunal supplying speedy and expert resolutions of the issues involved. The 7th Amendment is no bar.
4. Issue:
5. Procedural History:
6. Facts: Atlas Roofing and Irey had been cited by an OSHA inspector for worksite violations that had resulted in an employee’s death. They claimed that the statutory assessment scheme violated their 7th amendment rights.
7. Rule:
8. Reasoning: Rejected claim that a suit in a federal court by the Government for civil penalties for violation of a statutes a suit for a money judgment which is a suit at common law.
In cases in which public rights are being litigated the 7th Amendment does not prohibit Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.
Public rights theory removed it from the requirements of article 3 and 7th Amendment is not required. 7th Amendment rights attach only when cases are adjudicated by a federal district court.
- SEC v. Jarkesy
1. Case Heading:
Parties:
Year: 2024
Court:
2. Disposition: Affirmed.
3. Holding: Jarkesy was entitled to a jury trial in an Article III court. The statutory removal restrictions for SEC ALJs is unconstitutional.
4. Issue:
5. Procedural History:
6. Facts: concerned determinations of fraud made by an SEC ALJ after an evidentiary hearing and then upheld by the Commission.
7. Rule:
8. Reasoning: A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch.
The test is whether it is analogous to common law fraud and makes the 7th Amendment implicated in this.
Impartiality of ALJ - PATCO v. FLRA
1. Case Heading:
Parties:
Year: 1982
Court: US Court of Appeals for the DC Circuit
2. Disposition: A remand on the basis of personal interest is unnecessary.
3. Holding: though plainly inappropriate, the ex parte communication was limited to a ten or fifteen minute discussion, often couched in general terms, of the appropriate discipline for a striking public employee union.
4. Issue:
5. Procedural History:
6. Facts: the PATCO called its members out on strike in 1981 in violation of a statute forbidding federal employees to go out on strike. One proceeding that resulted was an unfair labor practice hearing before the FLRA, threatening the revocation of PATCO’s certification. The hearing before FLRA ALJ stripped PATCO of its certification. ALJ’s decision was affirmed. The case was brought to DC Circuit for expedited judicial review.
7. Rule:
8. Reasoning:
Robinson concurring: once the agency is engaged in formal adjudication, such a separation is mandated by the APA, and is essential to the integrity of the admin process.
Applewhaite’s conversation with general counsel implicated 557. Was 557(d) violated? Yes. What should the court do about that? Put on the record and vacate only where the outcome was irrevocably tainted.
Pressure from other parts of government - Pilsbury Co. v. FTC
1. Case Heading:
Parties:
Year: 1966
Court:
2. Disposition:
3. Holding: We can preserve the rights of the litigants in a case such as this without having any adverse effect upon the legitimate exercise of the investigative power of Congress. What we do is to preserve the integrity of the judicial aspect of the administrative process.
4. Issue:
5. Procedural History: the FTC’s trial examiner dismissed the complaint, but the Commission reinstated it. The FTC ordered Pillsbury to divest itself of the acquired companies and Pillsbury sought review, alleging a lack of due process.
6. Facts: The FTC filed a complaint against Pillsbury challenging its acquisition of competing flour millers as being anticompetitive, putting section 7 of the Clayton Act at issue.
7. Rule:
8. Reasoning: The alleged interference was not an impropriety concealed from public view but consisted of questions and statements made by members of two subcommittees having responsibility for legislation dealing with antitrust matters all clearly spread upon the record.
The proceedings just outlined constituted an improper intrusion into the adjudicatory processes of the Commission and were of such a damaging character as to have required at least some of the members to disqualify themselves.
When such an investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer intervening in the agency’s legislative function but rather in its judicial function.
Congress abridged due process.
Pressure from other parts of government - Sangamon Valley Television Corp. v. United States
1. Case Heading:
Parties:
Year: 1959
Court: DC Circuit
2. Disposition:
3. Holding: the private approaches to the members of the Commission vitiated its action and the proceeding must be reopened.
4. Issue:
5. Procedural History: DC Circuit concluded that basic fairness requires such a proceeding to be carried on in the open.
6. Facts: Pre-cable television era, it was much more advantageous to have a franchise for one of the twelve VHF channels than one of the UHF channels. The rule the FCC proposed would have had the effect of awarding a particular VHF franchise to a particular St. Louis television station. It would also have reassigned the UHJ channel to Springfield, to replace a franchise for Channel 2. Congressional testimony disclosed that the St. Louis station’s President had personally called on, written telephoned, and gifted FCC Commissioners.
7. Rule:
8. Reasoning: Agency used rulemaking to make decisions that seem equally appropriate for adjudication
Procedural violation in a rulemaking proceeding involving ex parte communication. Basic fairness requires a robust prohibition on ex parte communication.
Fairness and bias in the decisionmaking process - HBO v. FCC
1. Case Heading:
Parties:
Year: 1977
Court:
2. Disposition:
3. Holding: Once a notice of proposed rulemaking has been issued, any agency official or employee who is or may reasonably be expected to be involved in the decisional process of the rulemaking proceeding, should refuse to discuss matters relating to the disposition…
4. Issue:
5. Procedural History:
6. Facts: In 1975, the FCC ended a three-year notice-and-comment rulemaking proceeding by adopting four amendments to its rules governing the programs that could be shown by paid television services like HBO. If these services could show contemporary films and sports, the quality of conventional television would be reduced. Viewers without subscription television would be injured by this change. Metropolitan viewers and paid service owners denied this harm and asserted that restricting the material shown by subscription services would inhibit their commercial growth and deprive viewers of diversity. The Commission decided to reduce somewhat the prior restrictions on paid television services. The commercial and the subscription broadcast interests sought review in the DC Circuit. Geller of FCC suggested to the court that participants in the rulemaking frequently engaged in private contacts with Commissioners and others at the FCC.
7. Rule:
8. Reasoning: We have insisted that the relevant information in agency files or consultants’ reports be disclosed to the parties for adversarial comment. We have required agencies to set out their thinking in notices of proposed rulemaking.
Informal contacts between agencies and the public are the bread and butter of the process of administration and are completely appropriate so long as they do not frustrate judicial review or raise serious questions of fairness.
Fairness and bias in the decisionmaking process - ACT v. FCC
1. Case Heading:
Parties:
Year: 1977
Court:
2. Disposition:
3. Holding: The problem is a matter of degree and the appropriate line must be drawn somewhere. We would draw that line at the point where the rulemaking proceedings involve competing claims to a valuable privilege. It is at that point where the potential for unfair advantage outweighs the practical burdens, which we imagine would not be insubstantial, that such a judicially conceived rule would place upon administrators.
4. Issue:
5. Procedural History: DC Circuit judge refused to apply HBO to an FCC rulemaking involving children’s television programming and advertising practices.
6. Facts: The broadcast industry had undertaken limited self-regulation. After a private meeting with the FCC’s Chairman following the Commission hearings, the industry adopted further measures to control advertising practices. When the Commission decided not to issue a final rule, promising to monitor these self-regulatory measures, ACT sought review.
7. Rule:
8. Reasoning: ex parte contacts do not per se vitiate agency informal rulemaking action, but only do so if it appears from the administrative record under review that they may have materially influenced the action ultimately taken.
Nullifies the significance of the HBO holding. During informal rulemaking proceedings agencies can engage in ex parte contacts.
Constraints on an agency’s option to use adjudication or rulemaking- SEC v. Chenery Corp. (Chenery I)
1. Case Heading:
Parties:
Year: 1943
Court: Supreme Court of the US
2. Disposition:
3. Holding: an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its power were those upon which its action can be sustained.
4. Issue:
5. Procedural History:
6. Facts: the Public Utility Holding Company Act of 1935 aimed at dismantling the complex, highly leveraged pyramid structures common in the public utility industry. Section 11(b) directed the SEC to require by order, after notice and opportunity for hearing, that each registered holding company shall take such action as the Commission shall find necessary to limit the operation of the holding-company system of which such company is a part to a single integrated public utility system. Section 11(e) permitted companies to forestall mandatory reorganization by proposing a voluntary plan. The SEC would then determine, after hearing, whether the proposal was necessary to effectuate the provisions of 11b and fair and equitable to the persons affected by such plan. Chenery attempted voluntary reorganization under a plan in which those people would retain a substantial role in the new enterprise. The SEC refused to approve reorganization on their terms.
7. Rule:
8. Reasoning: the Commission found that it could not approve the proposed plan so long as the preferred stock acquired by the Chenery would be permitted to share on a parity with other preferred stock. It found that Chenery were fiduciaries and under a duty of fair dealing not to trade in the securities while plan for reorganization were before the Commission.
The Commission urges that the order should be sustained because the effect of trading by management is measured by its relation to the timing and dynamic of the reorganization which the management itself initiates and so largely controls.
The considerations in support of the Commission’s order were not those upon which its action was based. The Commission did not rely upon its special administrative competence; it formulated no judgment upon the requirements of the public interest or the interest of investors or consumers in the situation before it.
The Commission purported merely to be applying an existing judge-made rule of equity.
Judicial review of agency action. When we review the validity of agency action, we limit only to reasons that agency itself embrace when it performs that action. The court does not entertain the question of whether the Act on its own prohibit Chenery.
Constraints on an agency’s option to use adjudication or rulemaking - SEC v. Chenery Corp. (Chenery II)
1. Case Heading:
Parties:
Year: 1947
Court: Supreme Court of the US
2. Disposition: Reversed
3. Holding: The Commission’s conclusion rests squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is an allowable judgment which we cannot disturb.
4. Issue:
5. Procedural History:
6. Facts: The Commission has concluded that the proposed transaction is inconsistent with the Act.
7. Rule:
8. Reasoning: rule is that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.
If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable.
The Commission was foreclosed from taking such a step following Chenery I -> reject because it grows out of a misapprehension of the prior decision and of the Commission’s statutory duties.
Since the Commission have the ability to make new law prospectively through the exercise of its rule-making powers, it has less reason to rely upon ad hoc adjudication to formulate new standards of conduct within the framework of the Act.
Jackson dissent: the Court sustains the identical administrative order which only recently it held invalid.
The agency failed promulgate a rule and cannot rely upon it until the rule is promulgated. Chenery II: agencies have flexibility between the choices of rulemaking and adjudication.
Not rulemaking as an exclusive vehicle for forming policy. It is up to the agency whether to formulate policy through vehicle of rules or adjudication.
Agency cannot use adjudication to change an existing policy codified by legislative rule. Can if the policy is codified by a prior adjudication.
Constraints on an agency’s option to use adjudication or rulemaking - NLRB v. Bell Aerospace
1. Case Heading:
Parties:
Year: 1974
Court:
2. Disposition:
3. Holding: The Board’s judgment that adjudication best serves this purpose is entitled to great weight.
4. Issue:
5. Procedural History:
6. Facts: reversed a 2nd Circuit opinion that would have required the NLRB to use rulemaking to change a long-standing interpretation, developed in adjudication, that corporate buyers were necessarily managerial employees excluded from the protections of the NLRA.
7. Rule:
8. Reasoning: the choice between rulemaking and adjudication lies within the Board’s discretion. Adjudication is especially appropriate in the instant context. The Board has reason to proceed with caution developing the standards in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in each company.
Problem of Retroactivity - Epilepsy Foundation of NE Ohio v. NLRB
1. Case Heading:
Parties:
Year: 2001
Court: DC Circuit
2. Disposition:
3. Holding: the Board erred in giving retroactive effect to its new interpretation of section 7. Retroactive effect is appropriate for adjudicatory rules that are new applications of existing law, clarifications, and additions rather than the substitution of new law for old law that was reasonably clear.
4. Issue:
5. Procedural History:
6. Facts: an NLRB decision had characterized as unfair labor practices actions that were clearly permitted by prevailing Board decisions. Section 7 of NLRA states that employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Over the years, the NLRB had vacillated over its interpretation of the section 7, but for a decade had allowed the challenged employer conduct. In reinterpreting section 7, the Board repudiated that view.
7. Rule:
8. Reasoning: It would be a manifest injustice to require the Foundation to pay damages to an employee who flagrantly defied his employer’s lawful instructions.
Problem of Retroactivity - Bowen v. Georgetown University Hospital
1. Case Heading:
Parties:
Year: 1988
Court:
2. Disposition:
3. Holding: The House and Senate Committee Reports expressed a desire to forbid retroactive cost-limit rules.
4. Issue:
5. Procedural History: the Court held that congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.
6. Facts: considered a schedule that the Secretary of Health and Human Services had adopted by rulemaking to govern Medicare cost reimbursements. A district court rejected its use of the new schedule on the ground that it should have conducted notice and comment rulemaking. HHS reimbursed costs submitted under the old schedule and used notice and comment rulemaking to adopt the new schedule once more, providing for retroactive corrective adjustments to recapture excess amounts paid for its initial, invalidated adoption of the schedule.
7. Rule:
8. Reasoning: a statutory grant of legislative rulemaking authority will not be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in expressive terms. Where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.
The fundamental procedural categories of administrative action - Londoner v. Denver
1. Case Heading:
Parties:
Year: 1908
Court: Supreme Court of the US
2. Disposition: Reverse.
3. Holding: A hearing was denied to the plaintiffs in error. The denial was by the city council, which, while acting as a board of equalization, represents the state. The assessment was therefore void, and the plaintiffs were entitled to a decree discharging their lands from a lien on account of it.
4. Issue: whether the charter provision authorizing such a finding, without notice to the landowners, denies to them due process of law.
5. Procedural History: the trial court granted the relief. The Colorado Supreme Court reversed and stated that the tax was assessed in conformity.
6. Facts: Plaintiffs sued in a state court of Colorado to relieve lands owned by them from an assessment of a tax for the cost of paving a street upon which the lands abutted. The tax was assessed under the provisions of the charter of Denver, which confers upon the city the power to make local improvements and to assess the cost upon property specially benefited.
7. Rule:
8. Reasoning: From the beginning to end of the proceedings the landowners, although allowed to formulate and file complaints and objections, were not afforded an opportunity to be heard upon them.
Colorado Supreme Court ruled that the petition was adequate. State court ruled state law and it’s not the Supreme Court’s role to say otherwise.
There is a due process violation. It occurs when there is votes to authorize the assessments without in-person opportunity for petitioners to come in and argue their case.
The fundamental procedural categories of administrative action - Bi-Metallic Investment Co. v. State Bd. of Equalization
1. Case Heading:
Parties:
Year: 1915
Court:
2. Disposition: Affirmed.
3. Holding: there must be a limit to individual argument in such matters if government is to go on.
4. Issue:
5. Procedural History: the order was sustained and the suit directed to be dismissed by the Supreme Court of the State.
6. Facts: Plaintiff filed suit to enjoin the Board and Colorado Tax Commission from putting in force an order increasing the valuation of all taxable property in Denver forty percent. Plaintiff is the owner of real estate in Denver and sues on the ground that it was given no opportunity to be heard and that therefore its property will be taken without due process of law.
7. Rule:
8. Reasoning: where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption.
We must assume that the proper state machinery has been used and if the state constitution had declared that Denver had been undervalued as compared with the rest of the state and had decreed that the valuation should be forty percent higher, the objection now urged could prevail.
Tax applies to many people at the same time in the same way. (Legislative type; is not a business of due process clause). Londoner applies to adjudicative type of proceedings (individualized, context-sensitive determination).
The fundamental procedural categories of administrative action - Goldberg v. Kelly
1. Case Heading:
Parties:
Year: 1970
Court:
2. Disposition: Affirmed.
3. Holding: prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review.
4. Issue: whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment
5. Procedural History:
6. Facts: residents received financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program. They alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures.
7. Rule:
8. Reasoning: challenge to procedures utilized in termination of public benefits.
Public assistant benefit forms public property: the consequences to the individual would be catastrophic; New York law does in fact give eligible person the right to them (entitled to).
Rule and adjudications: (a) Prospectivity, (b) generality, (c) the rule of law
(a) that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all the future cases falling under its provisions.
(b) rulemaking is the function of laying down general regulations as distinguished from orders that apply to named persons or to specific situations.
(c) one way is to establish rules to govern general categories of acts and persons, and then to decide particular disputes among persons on the basis of the established rules. This is legal justice. The other way is to determine goals and then to decide particular cases by a judgment of what decision is most likely to contribute to the predetermined goals. This is substantive justice.
Due process as a source of procedural rights in adjudication - Bd. of Regents v. Roth
1. Case Heading:
Parties:
Year: 1972
Court:
2. Disposition: Reversed.
3. Holding: summary judgment should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the 14th amendment.
4. Issue: whether Roth had a constitutional right to a statement of reasons and a hearing on the decision not to rehire him.
5. Procedural History: the District Court granted summary judgment for Roth on the procedural issue ordering the University officials to provide him with reasons and a hearing. The Court of Appeals affirmed.
6. Facts: Roth was hired for his first teaching job as an assistant professor. He was hired for a fixed term of one academic year. He was informed that he would not be rehired for the next year. There are on statutory or administrative standards defining eligibility for re-employment. State law leaves the decision whether to rehire a nontenured teacher for another year to the discretion of university officials. He must be informed by Feb 1 concerning retention or nonretention but no reason for non-retention need be given. No appeal or review is provided in such case. The President informed Roth that he would not be rehired and gave no reason and opportunity to challenge it. Roth brought action in Federal District Court alleging that the decision violated his 14th amendment rights. Roth argued decision punished him for statements critical of administration and violated his right to freedom of speech and failure of notice of reason violated due process.
7. Rule:
8. Reasoning: To determine whether due process requirements apply, we must look to the nature of the interest at stake.
Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. -> not at stake.
The State did not impose on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. -> not deprived of liberty.
To have a property interest in a benefit, a person must have a legitimate claim of entitlement to it. -> the terms supported no possible claim of entitlement to re-employment.
Marshall dissent: the government may only act fairly and reasonably. -> property, liberty right.
Due process as a source of procedural rights in adjudication - Perry v. Sinderman
1. Case Heading:
Parties:
Year: 1972
Court:
2. Disposition: Affirmed.
3. Holding: disagree that a mere subjective expectancy is protected by procedural due process, but agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement.
4. Issue:
5. Procedural History: the district court granted summary judgment for the college officials. The court of appeals reversed. As to free speech, it asked for the actual reason for the Board’s decision. As to due process it allowed Sindermann to show that he had an expectancy of reemployment.
6. Facts: Sindermann worked for the state college system of Texas for ten years. He was elected president of the Texas Junior College Techers Association and publicly opposed policies of the Board. Board voted not to offer him a new contract. They issued a press release claiming he had been insubordinate but gave no official reasons. Sindermann sued claiming a violation of his rights to free speech and due process.
7. Rule:
8. Reasoning: the government may not deny a benefit to a person on a basis that infringes his interest in freedom of speech.
The respondent has yet to show that he has been deprived of an interest that could invoke procedural due process protection. The respondent alleged that the college had a de facto tenure program, and he had tenure. Guidelines provided that a person who worked for 7 or more years had some form of job tenure.
Statutory entitlement: not is in fact eligible for the benefit they week. The question whether to provide benefit turns on objective legal determinations and if the relevant criteria are met they must get the benefit.
Due process as a source of procedural rights in adjudication - Cleveland Board of Education v. Loudermill
1. Case Heading:
Parties:
Year: 1985
3. Holding:
8. Reasoning: the Due Process Clause provides that certain substantive rights – life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures.
Due process question entails: is life, liberty, or property at stake? If so, is the process provided adequate process?
Due process as a source of procedural rights in adjudication - Lujan v. G&G Fire Sprinklers, Inc
1. Case Heading:
Parties:
Year: 2001
Court: Supreme Court of the US
2. Disposition: Reversed.
3. Holding: moved the issue from whether a particular contract right is property to whether a particular contract right is the kind of property that comprises a present entitlement. If not, ordinary breach-of-contract remedies are per se sufficient.
4. Issue:
5. Procedural History: The Court of Appeals held that G&G had a property interest in being paid in full and that due process required DLSE to provide a hearing on the issue of Code violation.
6. Facts: Plaintiff challenged a provision of the CA Labor Code that permitted governmental units to withhold payments from a contractor on a public works project if the contractor or subcontractors failed to comply with Code requirement. Without hearing, the state’s DLSE concluded that G&G failed to pay its workers the “prevailing wage” as the Code required. DLSE directed the amounts to be withheld from contract payments to the prime contractors who in turn withheld the amount from G&G.
7. Rule:
8. Reasoning: Respondent has not been denied any present entitlement. G&G has only a claim that it did comply with the contractual terms and therefore that it is entitled to be paid in full. G&G has an interest that can be fully protected by an ordinary breach-of-contract suit.
Due process as a source of procedural rights in adjudication - Sandin v. Conner
1. Case Heading:
Parties:
Year: 1995
Court:
2. Disposition:
3. Holding: thirty days of segregated confinement did not dramatically depart from the ordinary conditions of prison confinement.
4. Issue: whether what the prison is doing imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning:
Assessments of the Roth/sindermann doctrine - Mathews v. Eldridge
1. Case Heading:
Parties:
Year: 1976
Court:
2. Disposition: Reversed.
3. Holding: An evidentiary hearing is not required prior to the termination of disability benefits and that the present administrative procedures fully comport with due process.
4. Issue: whether Due Process Clause requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.
5. Procedural History:
6. Facts: Cash benefits are provided to workers during periods in which they are completely disabled under the disability insurance benefits program created by amendments to Title II of the Social Security Act. Eldridge was awarded benefits in 1968. In 1972, he received a questionnaire from the state agency. He indicated that his condition had not improved and identified the medical sources. The agency informed him that it had made a tentative determination that his disability had ceased. The letter included a statement of reasons and advised him that he might request reasonable time. The agency made is final determination that he has ceased to be disabled and SSA accepted it and notified him.
7. Rule:
8. Reasoning: the Secretary contends that the existing admin procedures provide all the process that is constitutionally due before a recipient can be deprived of that interest. Eldridge agrees that the review procedures would be adequate if disability benefits were not terminated until after the evidentiary hearing stage of the admin process. The dispute is what process is due prior to the initial termination of benefits.
Despite the elaborate character of the admin procedures, the courts below held them to be constitutionally inadequate, requiring an evidentiary hearing prior to termination. This was an error.
The degree of potential deprivation that may be created by a particular decision is a factor in assessing the validity of admin decisionmaking process. There is less reason to depart from that something less than an evidentiary hearing is sufficient prior to adverse admin action.
Additional factor is the fairness and reliability of the existing pretermination procedures, and the probable value of additional procedural safeguards.
The final factor to be assessed is the public interest. This includes the admin burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits.
Due process as a source of procedural rights in adjudication - North American Cold Storage v. Chicago
1. Case Heading:
Parties:
Year: 1908
Court:
2. Disposition:
3. Holding:
4. Issue:
5. Procedural History: The Court denied the injunction.
6. Facts: Section 1161 of the Revised Municipal Code of the Chicago required owners of facilities for cold storage of any perishable food item to a certain way. Health department inspectors were authorized to enter and deal with noncompliant food. City officials ordered without any hearing North American Cold Storage to deliver to them for destruction 47 barrels of putrid poultry. The City threatened to destroy noncompliant foods and banned further deliveries and would imprison anyone avoiding the ban. The company sought an injunction.
7. Rule:
8. Reasoning:
Due process as a source of procedural rights in adjudication - Ingraham v. Wright
1. Case Heading:
Parties:
Year: 1977
Court:
2. Disposition:
3. Holding: The Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law.
4. Issue:
5. Procedural History:
6. Facts: Many of the Dade County schools used corporal punishment as a means of maintaining discipline. The authorized punishment existed. Ingraham was slow to respond to his teacher and was subjected to more than 20 licks with a paddle. He suffered a hematoma requiring medical attention and was out of school for days. Andrews was paddled on his arms, once depriving him of the full use of his arm for a week.
7. Rule:
8. Reasoning: 14th amendment liberty interests are implicated. the question is whether the common law remedies are adequate to afford due process. The Florida rule was sufficient.
The adequacy of present procedures: available civil and criminal sanctions for abuse afford significant protection against unjustified corporal punishment.
The risk of error is minimal; additional administrative safeguards might reduce that risk marginally but intrude into an area of primary educational responsibility.
Due process as a source of procedural rights in adjudication - Kapps v. Wing
1. Case Heading:
Parties:
Year: 2005
Court:
2. Disposition:
3. Holding: Plaintiffs possess a sufficient property interest in the receipt of HEAP benefits to warrant due process protection. The district court properly found existing procedures to be inadequate as a matter of federal constitutional law.
4. Issue: Whether plaintiffs possess a liberty or property interest protected by the Due Process Clause; and, if so, whether existing state procedures are constitutionally adequate.
5. Procedural History: the district court granted class certification and gave summary judgment in part to Plaintiffs and in part to Defendants.
6. Facts: Congress enacted the Low Income Home Energy Assistance Act in 1981 in response to the rising costs of oil-based energy. LIHEAA assisted the states in providing home energy assistance to low income families. The regulations required the defendants to process all HEAP applications within 30 business days. Actual processing varied up to 122 days. Applicants have 60 days from the HEAP notice to request an administrative “fair hearing” to challenge the agency’s eligibility and/or benefits level determination. Fair hearings may not be requested more than 105 days after the close of the HEAP program year. Kapps allege the denial of the right to a fair hearing violated due process and the LIHEAA; and that HEAP notices failed to inform how benefits eligibility and allotment were calculated and did not meet the requirements of due process.
7. Rule:
8. Reasoning: To the extent that state or federal law meaningfully channels the discretion of state or local officials by mandating an award of HEAP benefits to applicants who satisfy prescribed eligibility criteria, plaintiff possess a property interest.
The New York law provides precisely the type of discretion-limiting substantive predicates that are the hallmarks of protected property rights.
Defendants allege that the fact that the plaintiffs are applicants for benefits renders their interest in the benefits too tenuous to qualify for due process protection; also that HEAP program’s dependence on federal funds means that no individual plaintiff can be assured of receiving benefits, rendering any individual’s anticipation of benefits a mere unilateral expectation. -> property interest analysis extends to the consideration of whether one would be entitled to benefits as a matter of law. If so, state law creates a property interest, and an applicant must be afforded procedural protections. To the extent that LIHEAA program funds are available, the fact that HEAP is limited to the extent of federal funding does not matter. Plaintiff’s claim of entitlement, while funds remain available, is the same as it would be were the program not contingent on the availability of sufficient funds.
The process due to applicants is notice of the reasons for the agency’s preliminary determination, and an opportunity to be heard in response.
Notice of benefits determinations must provide claimants with enough information to understand the reasons for the agency’s action. This is a basic requirement of procedural due process.
Defendants suggest award of notice relief is improper due to 1) the allegedly prohibitive cost of providing the notice mandated by the district court; and 2) the availability to claimants of additional means of seeking out information. -> 1) there is no evidence that the burden of affording improved notice would be unreasonable. 2) the addition of budgetary information to HEAP notices does not entail the placing of a major financial burden on the defendants.
- Immigration and naturalization service v. Chadha
1. Case Heading:
Parties:
Year: 1983
Court:
2. Disposition: Affirmed.
3. Holding: the Congressional veto provision in 244(c)(2) is severable from the Act and that it is unconstitutional.
4. Issue: Does action of one House of Congress under 244(c)(2) violate strictures of the Constitution?
5. Procedural History: The Ninth Circuit held the legislative veto unconstitutional and enjoined the deportation.
6. Facts: The Immigration and Nationality Act of 1952 delegated to the Attorney General, who delegated to the Immigration and Naturalization Service, the discretion to suspend deportation of a noncitizen who has been physically present in the US for at least 7 years, is of good moral character, and is a person whose deportation would result in extreme hardship… This power was conditioned upon neither house of Congress disagreeing and exercising its statutory one-house veto. Chadha was deportable for overstaying his nonimmigrant student visa. He received a suspension of deportation but the House opposed the granting of permanent residence.
7. Rule:
8. Reasoning: The House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch.
Without 244(c)(2), veto could be achieved only by legislation requiring deportation. A veto cannot be justified as an attempt at amending the standards set out in 244(a)(1) or as a repeal of 244.
Congress’ decision to delegate to the Attorney General the authority involves determination of policy that Congress can implement in only through bicameral passage followed by presentment to the President.
When the Framers intended to authorize either House to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.
Powell concurring: Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country.
White dissenting: the veto must be authorized by statute and may only negative what an Executive department or independent agency has proposed. On its face, the legislative veto no more allows one House to make law than does the presidential veto confer such power upon the President.
Article I does not require all action with the effect of legislation to be passed as a law. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulation s having the force of law without bicameral approval and without the President’s signature. It is enough that the initial statutory authorizations comply with the Article I requirements.
The REINS Act
Congress proposed to replace the legislative veto, the Regulations from the Executive in Need of Scrutiny Act, would require legislation affirmatively approving rules with a large economic impact before the rule could go into effect.
Argument that it wouldn’t pass muster: REINS Act would enable, as would the traditional one-house veto, a single house of Congress to nullify an agency rule, regardless of the wishes of the other house, let alone the President.
Argument that it would: REINS Act would put the federal government on a sounder constitutional footing. It provides a means of curbing excessive or unwarranted regulation, but it is not an obstacle to needed regulatory measures supported by the public.
The Congressional Review Act
In 1995, Congress amended the Regulatory Flexibility Act to require that major rules be laid before Congress for sixty legislative days during which members of the House or Senate may introduce a joint resolution of disapproval. Disapproval must come via a joint resolution. If the joint resolution is adopted, the rule may not take effect. If a proposed resolution of disapproval is defeated in either chamber, the waiting period is terminated and the rule can become immediately effective. A rule that has been disapproved may not be reissued in substantially the same form…
CRA faces the realities of presidential veto authority and it has been impotent in contexts of divided government. CRA has been used to repeal major rules in the fast-track.
The Appropriations Process
Appropriations represent a critical lever of congressional control over agencies and policy. The central mechanism of control is the appropriation rider. A rider is a provision added to an unrelated bill that rides the targeted bill through the legislative process and becomes law when the President signs the bill.
The limitation rider is associated exclusively with appropriation bills, and it prohibits the relevant agency from expending any of the appropriated funds to engage in a proscribed activity. A legislative rider modifies existing law by amending an existing statute, changing existing common law, or directing a federal agency to take a particular affirmative action.
The Impoundment Control Act
While the degree of appropriations specificity has varied with the times, executive discretion is an inevitable part of the funding process. This discretion was codified in the ICA.
The main area on conflict is policy impoundments – a President’s disagreement with the purposes for which Congress appropriates money. By the time of LBJ, policy impoundments were becoming a strategic weapon in the domestic policymaking arena.
ICA requires congressional approval within forty-five days for any permanent impoundment of appropriated funds and otherwise limits Presidents to within-fiscal-year deferrals that cannot be based on policy disagreement with an appropriation.
- CFPB v. Cmty. Fin. Servs. Ass’n of Am.
1. Case Heading:
Parties:
Year: 2024
Court:
2. Disposition:
3. Holding: appropriations need only identify a source of public funds and authorize the expenditure of those funds for designated purposes to satisfy the Appropriations Clause.
4. Issue: whether [CFPB]’s funding mechanism constitutes an ‘Appropriatio[n] made by Law.
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: The Appropriations Clause - no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.
CFPB’s funding must comply with the Appropriations Clause because CFPB draws money from the Federal Reserve System.
The appropriation of ‘sums not exceeding’ a specified amount did not by itself mandate that the Executive spend that amount; as was the case in England, such appropriations instead provided the Executive discretion over how much to spend up to a cap.
The Bureau’s funding statute contains the requisite features of a congressional appropriation. Further, the Bureau’s funding mechanism fits comfortably with the First Congress’ appropriations practice.
The only sense in which the Bureau decides its own funding . . . is by exercising its discretion to draw less than the statutory cap. Framers “did not explicitly limit the duration of appropriations for other purposes.”
And he dismissed the fear that “the Bureau’s funding mechanism provides a blueprint for destroying the separation of powers -> err[s] by reducing the power of the purse to only the principle expressed in the Appropriations Clause
“rendition of history,” -> “largely ignores the historical evidence that bears most directly on the meaning of ‘Appropriations’ and does not meaningfully grapple with the many parliamentary appropriations laws that preserved a broad range of fiscal discretion for the King.
A statute need only identify a source and a purpose of authorized funding in order to qualify as an appropriation made by law. CFPB’s enabling statute identifies a source and a purpose.
Alito dissenting: there is apparently nothing wrong with a law that empowers the Executive to draw as much money as it wants from any identified source for any permissible purpose until the end of time
Notes on Congressional Oversight
Oversight allows Congress to learn how the funds it appropriates and the programs it authorizes function. It can reform or hold individual executive officers to account. It provides an important way for the public to learn about the executive branch’s actions at a time when it is salient for holding the President accountable. It is a deterrent to executive branch misconduct.
- Bowsher v. Synar
1. Case Heading:
Parties:
Year: 1986
Court:
2. Disposition:
3. Holding:
4. Issue:
5. Procedural History: The Court held that the Act violated the Constitution.
6. Facts: Congress in 1985 enacted the Balanced Budget and Emergency Deficit Control Act that set a schedule of annual maximum deficit amounts, which declined over five years to $0. It also created a procedure for ensuring this deficit reduction occurred.
7. Rule:
8. Reasoning: the Comptroller General may be removed not only by impeachment but also by Joint Resolution of Congress for permanent disability, inefficiency, neglect of duty, malfeasance, or a felony or conduct involving moral turpitude. Congress viewed CG as a Legislative Branch officer.
The CG may not be entrusted with executive powers but had been assigned such powers by the Act.
The appropriate remedy was to enforce fallback provisions in the Act that came into effect in the event any of the Act’s reporting requirements were invalidated.
Stevens concurring: the powers assigned to the CG were more appropriately viewed as legislative.
White dissenting: disagreed that the removal provision made the CG an agent of Congress. The proper remedy would be to invalidate Congress’ removal power over the CG, not to invalidate the Act.
- Arthrex v. United States
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition: Remand to the Acting Director for him to decide whether to rehear the inter partes review petition.
3. Holding: the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office.
Review by the Director better reflects the structure of supervision within the PT and the nature of APJs’ duties.
4. Issue: whether the nature of APJs’ responsibilities is consistent with their method of appointment.
5. Procedural History: A PTAB panel reviewed and concluded that the patent was invalid. The Federal Circuit held that APJs were principal officers because neither the Secretary nor the Director had the authority to review their decisions or to remove them at will, and it made APJs removable at will by the Secretary to cure the violation.
6. Facts: the Patent and Trademark Office is responsible for granting and issuing patents in the name of the US. The PTO is headed by a Director, appointed by the President with the advice and consent of the Senate. Inter partes review provides a mechanism for obtaining review of whether a granted patent meets the statutory requirements for patentability. The Director can grant the petition only if the Director determines that the challenge is likely to succeed on at least one claim. The review is conducted by a three-person panel of members of the Patent Trial and Appeal board. A party who disagrees with the PTAB’s decision can seek rehearing by the PTAB and judicial review. At issue is the validity of Arthrex’s patent on a surgical device for reattaching soft tissue to bone without tying a knot. Arthrex claimed two companies were infringing.
7. Rule:
8. Reasoning: Congress provided that APJs would be appointed as inferior officers by the Seretary of Commerce as head of a department.
An inferior officer must be directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate. -> APJs have the power to render a final decision on behalf of the US without any such review by their nominal superior or any other principal officer in the Executive Branch.
Given the insulation of PTAB decisions from any executive review, the President can neither oversee the PTAB himself nor attribute the Board’s failings to those whom he can oversee. APJs exercise power that conflicts with the design of the Appointments Clause.
History reinforces the conclusion that the unreviewable executive power exercised by APJs is incompatible with their status as inferior officers.
Decisions by APJs must be subject to review by the Director. APJs appear to be inferior officers.
Partial supervision by someone other than the President is not enough to render that person an inferior officer.
- Edmond v. United States
1. Case Heading:
Parties:
Year: 1997
Court:
2. Disposition:
3. Holding: the Court emphasized the importance of supervision in concluding that members of the Coast Guard Court of Criminal Appeals were inferior officers.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: Inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.
- Lucia v. SEC
1. Case Heading:
Parties:
Year:
Court:
2. Disposition: Remand for a hearing before a different ALJ or before the Commission itself.
3. Holding: the SEC ALJs were inferior officers and their appointment by the Chief ALJ and not the SEC itself violated the Appointments Clause.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: an individual must occupy a continuing position established by law to qualify as an officer. Officers exercise significant authority pursuant to the laws of the US.
ALJs hold a continuing office established by law. They exercise the same significant discretion when carrying out the same important functions.
Sotomayor dissenting: to exercise significant authority, the person must wield considerable powers. One component of significant authority is the ability to make final binding decisions on behalf of the Government. SEC ALJs are not officers.
Breyer dissenting: SEC ALJs were improperly appointed and APA did not allow delegation of the appointment.
- Freytag v. Commissioner
1. Case Heading:
Parties:
Year: 1991
Court:
2. Disposition:
3. Holding: the Tax Court’s STJs are officers.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: applied the unadorned significant authority test to adjudicative officials, the special trial judges of the US Tax Court.
In the course of carrying out important functions, the STJs exercise significant discretion.
- NLRB v. Noel Canning
1. Case Heading:
Parties:
Year: 2015
Court: Supreme Court of the US
2. Disposition:
3. Holding: the Recess Appointments Clause applies to an intra-session recess and to vacancies that arose before the recess began, but the Clause did not apply to the appointments at issue because the Senate was not in recess.
4. Issue:
5. Procedural History: The D.C. Circuit agreed that the appointments fell outside of the Recess Appointments Clause. It held that the recess applies only to recesses between formal sessions or inter-session recesses. “Vacancies that may happen during the recess” applies only to vacancies that come into existence during a recess.
6. Facts: In 2011, President Obama nominated three members to serve on the NLRB. In 2012, the President appointed all three to the Board, invoking the Recess Appointments Clause. At the time of the appointments the Senate was operating under a resolution, providing that the Senate would be gaveled in for pro forma sessions. The President made the recess appointments when the Senate was on a adjournment between its pro forma sessions. When the NLRB ordered Noel Canning to execute a collective bargaining with a labor union, Noel argued that the members were invalidly appointed, leaving the Board without the minimum quorum it needed to act.
7. Rule:
8. Reasoning: whether “recess of the Senate” includes an intra-session and inter-session recess -> words taken literally can refer to both types of recess.
Determining how long a recess must be in order to fall within the Clause -> if a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Clause.
Vacancies that may happen applies both to vacancies that first come into existence during a recess and to those that arise prior but continue to exist during the recess.
Whether in calculating the length of a recess we should ignore the pro forma sessions, treating the series of brief recesses as a single, month-long recess -> when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause.
Three days is too short a time to bring a recess within the scope of the Clause. The President lacked the power to make the recess appointments.
- NLRB v. SW General
1. Case Heading:
Parties:
Year:
Court:
2. Disposition:
3. Holding: the statute prohibits anyone from occupying an office in an acting capacity once they are nominated by the President for the office, unless the nominee has been confirmed to the first assistant role or held the position of first assistant to the office for at least ninety days in the year before the office became vacant.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: Thomas concurrence: the appointment of acting officials in principal offices without presidential nomination and Senate confirmation violated the Appointment Clause. General Counsel to the NLRB is an officer of the US and also likely a principal officer.
- Myers v. United States
1. Case Heading:
Parties:
Year: 1926
Court:
2. Disposition:
3. Holding: Removal restriction in the statute was unconstitutional.
4. Issue:
5. Procedural History:
6. Facts: Postmaster General fired Frank Myers, Postmaster of Portland, before the end of his statutory 4-year term. The pertinent statute provided that Postmasters may be removed by the President by and with the advice and consent of the Senate. Wilson refused to seek Senate consent, and Myers sued for lost salary, arguing that his removal was unlawful.
7. Rule:
8. Reasoning: The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service.
In this field his cabinet officers must do the President’s will. The moment that the loses confidence… he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination.
Excepting clause does not enable Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power.
Strongly Unitarian approach to removal power.
- Humphrey’s Executor v. United States
1. Case Heading:
Parties:
Year: 1935
Court:
2. Disposition:
3. Holding: upheld a for-cause removal protection for members of an independent commission.
The Myers decision is confined to purely executive officers; and as to officers of the kind here, no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.
4. Issue:
5. Procedural History:
6. Facts: FDR removed Humphrey from his position as Commissioner of the FTC. Humphrey was appointed by predecessor Hoover, and his conservative views were out of step with those of FDR. Under the FTC Act, Commissioners served for a seven-year term and could “be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” Humphrey insisted his removal violated the FTC Act and his estate sued for backpay.
7. Rule:
8. Reasoning: congressional intent was to create a body of experts which shall be independent of executive authority, except in its selection, and free to exercise its judgment.
The necessary reach of the decision of Myers goes far enough to include all purely executive officers.
In administrating the provisions of the statute in respect to unfair methods of competition, the FTC acts in part quasi-legislatively and in part quasi-judicially.
- Morrison v. Olson
1. Case Heading:
Parties:
Year: 1988
Court:
2. Disposition:
3. Holding: we do not see how the President’s need to control the exercise of important discretion of the counsel is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.
4. Issue: whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty.
5. Procedural History:
6. Facts: In 1986, Morrison was appointed independent counsel to investigate whether Assistant Attorney General Olson had lied while testifying under oath before a House Judiciary Committee investigating an earlier dispute between Congress and the Administrator of EPA.
7. Rule:
8. Reasoning: the independent counsel was an inferior officer and appointment by the Special Division was not an unconstitutional inter-branch appointment. Rejected Olson’s claim that the limits on the Attorney General’s ability to remove the independent counsel violated the separation of powers.
The Act puts the removal power squarely in the hands of the Executive Branch.
The analysis is to ensure that Congress does not interfere with the President’s exercise of the executive power and Article II power.
The Act gave the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel.
Scalia dissenting: all of the executive power is vested in a President.
- Free Enterprise Fund v. PCAOB
1. Case Heading:
Parties:
Year: 2010
Court:
2. Disposition:
3. Holding: By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed-as well as the public ability to pass judgment on his efforts. Once the removal protections were severed, the members of the Board were inferior officers properly appointed by the SEC.
4. Issue:
5. Procedural History:
6. Facts: PCAOB is charged with undertaking closer oversight and regulation of the accounting industry. The Board is composed of five members serving five-year terms. The Board’s members are appointed by the SEC and are removable only for good cause shown. An accounting firm subject to formal investigation by the Board filed suit arguing that the Board contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to presidential control and also violated the Appointments Clause.
7. Rule:
8. Reasoning: The Act not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested in other tenured officers-the Commissioners-none of whom is subject to the President’s direct control.
A second layer of tenure protection changes the nature of the President’s review. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board.
Breyer dissenting: the removal protection for Board members will not restrict presidential power significantly… so long as the President is legitimately foreclosed from removing the Commissioners except for cause.
The removal restriction may somewhat diminish the Commission’s ability to control the Board, but it will have little negative effect in respect to the President’s ability to control the Board, let alone to coordinate the executive branch.
- Seila Law v. CFPB
1. Case Heading:
Parties:
Year: 2020
Court:
2. Disposition: Remand to consider whether the civil investigative demand was validly ratified.
3. Holding: CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Director’s removal protection is severable from the other provisions of Dodd-Frank that establish the CFPB.
4. Issue:
5. Procedural History: the district court ordered Seila to comply and the Court of Appeals affirmed.
6. Facts: Congress gave the CFPB broad powers to implement a large body of consumer-protection law. Unlike other independent agencies, which were typically headed by multimember boards, the CFPB had a single director appointed by the president with the Senate’s consent. Once appointed, a director had a five-year term and could be removed by the president only for cause. Additionally, the CFPB was funded directly by the Federal Reserve rather than by congressional appropriations. CFPB issued a civil investigative demand to Seila Law to determine if the law firm had engaged in unlawful acts or practices in providing debt relief services. Seila resisted, stating that the agency’s leadership by a single Director removable only for-cause violated the separation of powers.
7. Rule:
8. Reasoning: CFPB’s single-Director structure and five-year term guarantee abrupt shifts in agency leadership ad with it the loss of accumulated expertise.
The Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes. The Director may unilaterally issue final decisions awarding legal and equitable relief in admin adjudications. The Director’s authority includes the power to seek daunting monetary penalties against private parties on behalf of the US in federal court.
Director is not an inferior officer. It has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses.
We decline to extend precedents to the new situation before us. CFPB’s single Director configuration is incompatible with our constitutional structure.
Single-Director structure is an innovation with no foothold in history or tradition. Our constitutional structure avoids concentrating power in the hands of any single individual. The structure contravenes carefully calibrated system by vesting power in the hands of an individual accountable to no one.
The Dodd-Frank Act contains an express severability clause.
Kagan dissenting: the Court left decisions about how to structure the Executive Branch to Congress and the President.
This Court held that Congress could protect from at-will removal the officials it deemed to need some independence from political pressures and not that the President has an unrestricted removal power subject to two bounded exceptions. Congress has broad discretion to enact for-cause protections in pursuit of good governance.
CFPB’s powers are nothing unusual. The removal protection given the Director is standard fare. For-cause standard used for the CFPB is identical to that upheld in Humphrey’s.
- Collins v. Yellen
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition: remanded to determine what remedy the shareholders are entitled to receive; whether the President would have acted to undo the third amendment but for the removal restriction.
3. Holding: Its Director should not be treated differently from the Director of the CFPB.
4. Issue:
5. Procedural History:
6. Facts: Congress created single-director-headed independent agency, the FHFA, in 2008 to oversee Fannie Mae and Freddie Mac. The FHFA placed the companies into conservatorship and negotiated agreements under which the Treasury Department committed to provide hundreds of billions of dollars to the companies in exchange for dividends. The third amendment provision in the deal provided that the companies would pay Treasury variable dividends equal to the companies’ net worth less a capital reserve. Company shareholders challenged the third amendment in part on the ground that the FHFA’s structure was unconstitutional.
7. Rule:
8. Reasoning: The FHFA is an agency led by a single Director and the Recovery Act restricts the President’s removal power.
Gorsuch concurring: the Director’s actions implementing the third amendment were void and should be set aside.
Kagan dissenting: If an agency did not exercise “significant executive power,” the constitutionality of a removal restriction would remain an open question. Sotomayor dissenting: FHFA lacks significant executive power.
- Portland Audubon v. Endangered Species Committee
1. Case Heading:
Parties:
Year: 1993
Court: 9th Circuit
2. Disposition:
3. Holding: 557(d)(1) applies to White House communications with the committee. The President and his staff are ‘interested persons.’
4. Issue: Presidential involvement in formal adjudication.
5. Procedural History:
6. Facts: Under the Endangered Species Act actions harming the habitat of an endangered species are prohibited unless a high-level committee grants an exemption, after an adjudication process involving an on-the-record hearing before an ALJ, … After the committee authorized a number of timber sales affecting the northern spotted owl’s habitat, environmental groups challenging the exemptions sought discovery to show the exemptions were the product of ex parte contacts with White House staff.
7. Rule:
8. Reasoning: Congress in no way invaded any legitimate constitutional power of the President in providing that he may not attempt to influence the outcome of administrative adjudications through ex parte communications and that Congress’ important objectives reflected in the enactment of the APA would outweigh any de minimis impact on presidential power.
If such ex parte communications occurred, then the record must be supplemented to include those contacts so that proper judicial review may be conducted.
Internal Checks on Executive Power
The civil service includes (1) the competitive service, positions filled through a competitive, merit-based examination; (2) the excepted service, a miscellaneous set of positions excluded from competitive examination, and (3) the Senior Executive Service, top-level management and professional jobs.
Civil service’s potential effectiveness as an institutional rival: (1) its members are capable of speaking truth to power without fear of serious reprisal; (2) agency heads must take civil servants seriously; (3) the independent and much relied-upon civil service has institutional, cultural, and legal incentives to insist that agency leaders follow the law, embrace prevailing understandings, and refrain from partisan excesses.
Many career officials have connections to officials, groups, members of Congress, and businesses. Whistleblower laws and the Office of Special Counsel protect employees.
The dissent channel at the State Department provides that all dissents must be sent to high-level staff.
The professional norms of civil servants bound them. Internal executive branch norms, such as OLC opinions, are treated as authoritative and binding.
Others that have institutional checks are offices within agencies tasked with ensuring that agencies attend to concerns that might not otherwise get adequate weight, and Inspector Generals. (1) IGs enjoy several statutory protections from agency interference. (2) IGs enjoy broad investigative powers.
Internal agency structures are important. Agency structures form internal administrative law. Inter-agency conflicts enhance expertise and ensure that all points of view are heard.
Support for Agency Decisions - Universal Camera v. NLRB
1. Case Heading:
Parties:
Year: 1951
Court:
2. Disposition: Judgment vacated and cause remanded. On reconsideration it should accord the findings of the trial examiner the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board’s order is substantial.
3. Holding:
4. Issue: the effect of the APA and the Taft-Hartley Act on the duty of Courts when called upon to review orders of the NLRB.
5. Procedural History: The trial examiner found that anti-union animus had not entered into the discharge recommended dismissing the complaint. Board held the discharge to be an unfair labor practice. The Second Circuit granted enforcement but with express misgivings about the Board’s assessment of the evidence.
6. Facts: The question before the NLRB was whether an employee had been fired because he had testified in support of the union’s position in an NLRB representation proceeding, or solely because subsequently he had accused the company’s personnel manager of drunkenness.
7. Rule:
8. Reasoning: The Wagner Act provided: “the findings of the Board as to the facts, if supported by evidence, shall be conclusive. Evidence means “substantial evidence.”
Substantial evidence means more than a mere scintilla; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.
Criticism of so contracted a reviewing power reinforced dissatisfaction felt in various quarters with the Board’s administration of the Wagner Act. Protests and intimations stimulated pressures for legislative relief from alleged administrative excesses.
Dissatisfaction with the existing standards as to the scope of judicial review derives largely from dissatisfaction with the fact-finding procedures now employed by the administrative bodies.
The APA and the Taft-Hartley Act direct that courts must assume more responsibility for the reasonableness and fairness of Labor Board decisions than that in the past.
The Board’s findings are entitled to respect; but they must be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.
The Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.
Support for Agency Decisions - Biestek v. Berryhill
1. Case Heading:
Parties:
Year: 2019
Court:
2. Disposition:
3. Holding: it does not preclude her testimony.
4. Issue: whether the vocational expert’s refusal to provide the data upon the applicant’s request categorically precludes her testimony from counting as ‘substantial evidence.’
5. Procedural History:
6. Facts: Biestek applied for disability benefits under the Social Security Act. His case was heard by an ALJ in an evidentiary hearing conducted per specifications of the Act, which allowed for the admission of evidence that would not be admissible in court. The ALJ decided that Biestek should get benefits for the time he was disabled after age 50 but not earlier. He sought review of the partial denial. The case turned on how many jobs were available in the economy for someone in his condition. The ALJ’s determination had been based on the testimony of a vocational expert. The expert had refused to produce the underlying data.
7. Rule:
8. Reasoning: ‘substantial evidence’ is a ‘term of art’ to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing admin record and asks whether it contains sufficient evidence to support the agency’s factual determination.
Substantial evidence means more than a mere scintilla; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
If the ALJ views the expert and her testimony as trustworthy, and thinks she has good reason to keep her data private, her rejection of the demand need not make a difference.
The holding depended on whether there was a categorical rule devaluing the expert’s opinion.
Dissent: the Court should have gone beyond the categorical question and ask if adverse inference can be drawn from the failure to produce the data, was this a proper case for doing so?
Support for Agency Decisions - Penasquitos Village v. NLRB
1. Case Heading:
Parties:
Year: 1977
Court:
2. Disposition:
3. Holding: the Board’s conclusion that Pensaquitos committed unlawful labor practices is not supported by substantial evidence and must be set aside.
4. Issue: whether a challenged discharge reflected employee misbehavior or employer anti-union animus.
Were the Board’s inferences enough to constitute “substantial evidence” on the record as a whole in describing the circumstances that led up to the discharges?
5. Procedural History:
6. Facts: A supervisor testified that he had observed two discharged employees loafing on the job. The employees presented evidence of their status as union organizers and of alleged coercive interrogation. At least one employee testified untruthfully and the ALJ resolved credibility in favor of the employer. Abrupt discipline occurred after union organizing activity had come to light that Board identified as signs of anti-union animus. The Board disagreed with the ALJ and found the discharges improper.
7. Rule:
8. Reasoning: A reviewing court will review more critically the Board’s findings of fact if they are contrary to the ALJ’s factual conclusions.
Observations of demeanor makes weighty only the observer’s testimonial inferences.
Deference is accorded the Board’s conclusions because members are presumed to have broad experience and expertise in labor-management relations and Congress delegated admin of the Act to them. Court of Appeals must abide by the Board’s derivative inferences, unless inferences are irrational.
The ALJ’s testimonial inferences reduce significantly the substantiality of the Board’s contrary derivative inferences.
Support for Agency Decisions - ADAPSO v. Bd. of Govs. of Fed. Reserve Sys.
1. Case Heading:
Parties:
Year: 1984
Court:
2. Disposition:
3. Holding: in their application to the requirement of factual support the substantial evidence test and arbitrary or capricious test are one and the same.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: An agency action supported by the required substantial evidence may in another regard be arbitrary, capricious, an abuse of discretion, or not in accordance with law.
Support for Agency Decisions - Phoenix Herpetological Society, Inc. v. U.S. Fish & Wildlife Serv.
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition:
3. Holding: reject Appellant’s arguments.
4. Issue:
5. Procedural History:
6. Facts: the Society applied for a permit to send four blue iguanas to a zoo in Denmark for a breeding program. In an informal adjudication, the Service denied the application since the four iguanas were siblings and their export would not help preserve the species and were “unsuitable for breeding among themselves.”
7. Rule:
8. Reasoning: The society emphasizes that inbreeding occurs in all iguanids and it was unreasonable to conclude that inbreeding would not affirmatively contribute to the species -> something happening in the wild does not mean it is desirable for the species. Inbreeding was not too severe in wild populations.
The determination is unsupported by substantial evidence -> substantial evidence review only applies to formal proceedings.
Substantial evidence and arbitrary and capricious standards differ as to the allowable origins of factual support and how those facts are assessed. It is permissible for common sense and predictive judgments to be attributed to the expertise of an agency in an informal proceeding.
Informal arbitrary and capricious type of case
Review of the Flow of Reasoning and Judgment - Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.
1. Case Heading:
Parties:
Year: 1983
Court:
2. Disposition: vacate the judgment and remand with directions to remand the matter to the NHTSA.
3. Holding: the agency has failed to supply the requisite reasoned analysis in this case.
4. Issue: whether NHTSA acted arbitrarily and capriciously in revoking the requirement in Motor Vehicle Safety Standard 208 that new motor vehicles produced after 1982 be equipped with passive restraints…
5. Procedural History: the DC Circuit held the agency’s action to be arbitrary and capricious.
6. Facts: the Congress enacted the National Traffic and Motor Vehicle Safety Act of 1966 that directs the Secretary of Transportation or his delegate to issue motor vehicle safety standards. The Secretary is directed to consider “relevant available motor vehicle safety data,” whether the proposed standard is reasonable, … The Act also authorizes judicial review under APA 706.
Standard 208 required the installation of automatic seatbelts or airbags. The Department considered passive occupant restraint systems of automatic seatbelts and airbags.
In 1969, the Department formally proposed a standard requiring the installation of passive restraints. Vehicles built between 1973 and 1975 were to carry either passive restraints or ignition interlock. Passive restraints decision was supported by substantial evidence. Ignition interlock was highly unpopular and Congress amended the Act to prohibit requiring compliance by ignition interlock or continuous buzz.
Sec. of Transportation Coleman initiated a new rulemaking that suspended the passive restraint requirement. He proposed a demonstration of cars installed with passive restraints. Successor Adams found the demonstration unnecessary and issued a mandatory passive restraint regulation mandating the phasing in of passive restraints beginning with large cars in model year 1982 and all cars by 1984. Successor Lewis received written comments and held public hearings and NHTSA issued a final rule that rescinded the passive restraint requirement.
NHTSA found that the automatic restraint would not produce significant safety benefits, because belts could be detached. Given the cost and public attitude, NHTSA feared consumers would find the Standard as ineffective regulation.
7. Rule:
8. Reasoning: we do not find the appropriate scope of judicial review to be the most troublesome question in this case.
MVMA contends that the rescission should be judged by the same standard a court would use to judge an agency’s refusal to promulgate a rule in the first place, which is considerably narrower than the arbitrary and capricious test -> reject, because MVSA or APA does not treat revocations as refusals to promulgate.
Dept of Transportation argues that under the arbitrary and capricious standard, a reviewing court may not set aside an agency rule that is rational and within the scope of the authority delegated to the agency by the statute. -> the scope of review under the arbitrary and capricious standard is narrow and a cover is not to substitute its judgment for that of the agency.
The first reason for finding the rescission arbitrary and capricious is that NHTSA gave no consideration to modifying the Standard to require airbag be utilized. Requiring the installation of airbags should have been addressed and adequate reasons given for its abandonment.
For nearly a decade, the automobile industry waged war against the airbag and lost-the inflatable restraint was proven sufficiently effective.
In Vermont Yankee, we held that a court may not impose additional procedural requirements upon an agency. We do not require today any specific procedures which NHTSA must follow.
The agency was too quick to dismiss the safety benefits of automatic seatbelts.
Petitioners argue that substantial uncertainty that a regulation will accomplish its intended purpose is sufficient reason to rescind a regulation. -> agree but the agency must explain the evidence which is available…
The agency failed to analyze the continuous seatbelts in its own rights and provide connection between facts and judgment required to pass muster under the arbitrary-and-capricious standard. The agency also failed to offer any explanation why a continuous passive belt would engender the same adverse public reaction as ignition interlock.
Rehnquist dissenting: I do not believe that NHTSA’s view of detachable automatic seatbelts was arbitrary and capricious.
- FERC v. Electrical Power Supply Ass’n
1. Case Heading:
Parties:
Year: 2016
Court:
2. Disposition:
3. Holding: Our role is to ensure that the Commission engaged in reasoned decisionmaking-that it weighed competing views, selected a compensation formula with adequate support in the record, and intelligibly explained the reasons for making that choice. FERC satisfied that standard.
4. Issue: Is FERC’s decision to compensate demand response providers at LMP, the locational marginal price, the same price paid to generators, arbitrary and capricious?
5. Procedural History:
6. Facts: a rule issued by FERB required the operators of wholesale electricity markets to pay the same amount to “demand response providers” for conserving electricity as they paid to generators for making it.
7. Rule:
8. Reasoning: the scope of review under the arbitrary and capricious standard is narrow. The court must uphold a rule if the agency has examined the relevant considerations and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.
To increase competition and optimally balance supply and demand, market operators should compensate demand response providers, like generators, based on their contribution to the wholesale system.
- Ohio v. EPA
1. Case Heading:
Parties:
Year: 2024
Court:
2. Disposition:
3. Holding: the petitioners were likely to prevail on the merits of the case and grant the stay.
4. Issue:
5. Procedural History: Various states and industry groups petitioned for review of the FIP in the D.C. Circuit and asked the court to stay enforcement of the rule pending the outcome of the litigation. The Circuit denied the stay. Court decided that the petitioners were likely to prevail on the merits of the case and granted the stay.
6. Facts: The Clean Air Act authorizes the EPA to set limits for common air pollutants; the states then develop State Implementation Plans (SIPs) to further those goals. These SIPs must include “Good Neighbor Provisions” to control emissions within the state that threaten to make it harder for any down-wind state to maintain its own standards. If a state’s SIP falls short of what is needed, the EPA can disapprove it and substitute a Federal Implementation Plan (FIP) instead. the EPA developed a new, more stringent standard for ozone pollution; disapproved the SIPs developed by 23 states; and promulgated an FIP to take their place.
7. Rule:
8. Reasoning: The agency’s error was that the agency’s FIP assumed, in calculating what level of control measures were cost-effective, that all upwind states would embrace the same level of control; it did not cover the case, which seemed likely, that some states’ SIPs would ultimately be approved and yet work differently
Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not ‘reasonably explained,’
Barrett dissenting: A rule is arbitrary and capricious if the agency ‘entirely failed to consider an important aspect of the problem.’ not convinced that the petitioners would win on the merits.
- Department of Commerce v. New York
1. Case Heading:
Parties:
Year: 2019
Court:
2. Disposition: Affirmed in part and reversed in part.
3. Holding: Agencies must pursue their goals reasonably. Reasoned decisionmaking under the APA calls for an explanation for agency action. What was provided here was more of a distraction.
4. Issue: whether the Secretary violated the Enumeration Clause of the Constitution, the Census Act, or otherwise abused his discretion.
5. Procedural History: The District Court issued orders compelling depositions of Ross and of the Acting Assistant Attorney General. We granted the request to stay the Secretary’s depositions but denied to stay the Acting AAG’s deposition or the other extra-record discovery that the District Court had authorized. The District Court ruled that the Secretary’s action was arbitrary and capricious. The Court granted judgment to respondents on their statutory claims, vacated the Secretary’s decision, and enjoined him from reinstating the citizenship question.
6. Facts: The Secretary of Commerce decided to reinstate a question about citizenship on the 2020 census questionnaire. In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census in such form and content as he may determine. In March 2018, Secretary of Commerce Ross announced in a memo that he had decided to reinstate a question about citizenship on the 2020 decennial census questionnaire. The DOJ requested the Secretary as it sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act. The Secretary asked the Census Bureau to reinstate a citizenship question on the census questionnaire and further enhance the Bureau’s administrative record data sets, protocols, and statistical models.
7. Rule:
8. Reasoning: Respondents argued that the supplemental memo indicated that the Government had submitted an incomplete record of the materials considered by the Secretary.
Respondents asked the court to authorize discovery outside the admin record -> the Court granted it.
At the heart of this suit is respondents’ claim that the Secretary abused his discretion to reinstate a citizenship question.
District Court: the Secretary’s decision must be set aside because it rested on a pretextual basis.
The decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.
- DHS v. Regents of the University of California
1. Case Heading:
Parties:
Year: 2020
Court:
2. Disposition:
3. Holding: Duke’s memo offers no reason for terminating forbearance. The appropriate recourse is to remand to DHS so that it may consider the problem anew.
4. Issue:
5. Procedural History:
6. Facts: The Trump administration attempted to repeal the Deferred Action for Childhood Arrivals program. After the DAPA program was rescinded by the Trump administration, AG Sessions wrote a letter saying that DHS should rescind the DACA program because it had the same legal defects as had been adjudicated in the DAPA litigation and should be wound-down.
7. Rule:
8. Reasoning: deciding how best to address a finding of illegality moving forward can involve important policy choices for DHS.
- Skidmore v. Swift & Co.
1. Case Heading:
Parties:
Year: 1944
Court:
2. Disposition: Reverse and remand.
3. Holding: no principle of law found that precludes waiting time from also being working time.
Although the District Court referred to the Administrator’s Bulletin, its evaluation and inquiry were restricted by its notion that waiting time may not be work, an understanding of the law which we hold to be erroneous.
4. Issue:
5. Procedural History: the trial court concluded that as a matter of law, the time the plaintiffs spent overnight on call in Swift’s fire hall did not count as hours worked for purposes of overtime compensation. The court of appeals affirmed
6. Facts: Seven employees at the Swift and Company packing plant brought an action under the FLSA to recover overtime, liquidated damages, and attorneys’ fees.
7. Rule:
8. Reasoning: Congress did not utilize the services of an admin agency to find facts and to determine whether particular cases fall within or without the Act. But it did create the office of Administrator.
The Administrator do determine the policy which will guide applications for enforcement by injunction on behalf of the Government. Good admin require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons.
The rulings, interpretations and opinions of the Administrator do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.
- Chevron v. NRDC
1. Case Heading:
Parties:
Year: 1984
Court:
2. Disposition: Reverse.
3. Holding: Appeals erred by adopting a static judicial definition of the term stationary source when it had decided that Congress itself had not commanded that definition.
EPA’s definition of the term “source” is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth.
4. Issue: whether EPA’s decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single “bubble” is based on a reasonable construction of the statutory term “stationary source.”
5. Procedural History: Court of Appeals viewed that the purpose of the permit program was to improve air quality and the bubble concept was inapplicable in this case under its prior precedents and set aside the regulations embodying the bubble concept as contrary to law.
6. Facts: In the Clean Air Act Amendments of 1977, Congress enacted certain requirements applicable to States that had not achieved the national air quality standards established by the EPA pursuant to earlier legislation. The amended Clean Air Act required these nonattainment States to establish a permit program regulating new or modified major stationary sources of air pollution.
7. Rule:
8. Reasoning: When a court reviews an agency’s construction of the statute which it administers: is the question whether Congress has directly spoken to the precise question at issue? if the statute is silent or ambiguous with respect to the specific issue, is the agency’s answer based on a permissible construction of the statute?
Once the Court of Appeals determined that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the questions is whether the Administrator’s view that it is appropriate in the context of this particular program is a reasonable one.
Statutory language: not persuaded that parsing of general terms in the text of the statute will reveal and actual intent of Congress. The listing of overlapping, illustrative terms was intended to enlarge the scope of the agency’s power to regulate particular sources in order to effectuate the policies of the Act.
Legislative History: it is unilluminating. It was the Court of Appeals, rather than Congress or others, that was primarily responsible for the 1980 position taken by the agency.
Policy: the responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.
- Loper Bright Enterprises v. Raimondo
1. Case Heading:
Parties:
Year: 2024
Court:
2. Disposition:
3. Holding: Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
4. Issue:
5. Procedural History: The District Court granted summary judgment to the Government.
6. Facts: Loper Bright sued Raimondo to challenge a federal regulation requiring industry-funded monitoring of herring-fishing vessels in the Atlantic. Loper Bright argued that the Magnuson-Stevens Fishery Conservation and Management Act (MSA) did not authorize the administering agency to require industry members to pay for the monitoring.
7. Rule:
8. Reasoning: Since our decision in Chevron we have sometimes required courts to defer to “permissible” agency interpretations of the statutes those agencies administer. a reviewing court must first assess “whether Congress has directly spoken to the precise question at issue.” If, and only if, congressional intent is “clear,” that is the end of the inquiry. if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.”
Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”
Chevron cannot be reconciled with the APA. Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.
By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.
our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action?
Experience has also shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition.
Kagan dissenting: Who should give content to a statute when Congress’s instructions have run out? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness.
deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority.
Who decides which of the possible readings should govern? This Court has long thought that the choice should usually fall to agencies, with courts broadly deferring to their judgments.
the court does not insert itself into an agency’s expertise-driven, policy-laden functions.
The idea that courts have “special competence” in deciding such questions whereas agencies have “no[ne]” is, if I may say, malarkey. The congressional reaction shows as well as anything could that the Chevron Court read Congress right.
abandoning Chevron subverts every known principle of stare decisis.
Chevron is about respecting that allocation of responsibility—the conferral of primary authority over regulatory matters to agencies, not courts. the majority does not respect that judgment.
- FDA v. Brown & Williamson Tobacco Corp.
1. Case Heading:
Parties:
Year: 2000
Court:
2. Disposition:
3. Holding: FDA’s assertion of jurisdiction was unwarranted. It is clear, based on the FDCA’s overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the question at issue and precluded the FDA from regulating tobacco products.
4. Issue: whether a statute passed much earlier could be construed, based on new scientific information, to give the administering agency major regulatory authority over something that the agency had not previously regulated.
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: the FDA determined that nicotine is a ‘drug’ and that cigarettes tobacco are drug delivery devices and it had jurisdiction under the FDCA to regulate tobacco products.
FDCA was premised on ensuring that drugs were either safe or taken off the market. FDA’s approach to cigarettes do neither. Since 1965 Congress had enacted six statutes regarding tobacco, each time acting on the premise that the FDA lacked jurisdiction.
Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to give the FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area.
- West Virginia v. EPA
1. Case Heading:
Parties:
Year: 2022
Court:
2. Disposition: Reverse the judgment of the Court of Appeals and remand.
3. Holding: Capping CO2 emissions may be a sensible solution. But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
4. Issue: whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.
Whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to s7% coal by 2030, can be the “best system of emission reduction” within the meaning of Section 111.
5. Procedural History: The DC Circuit found that EPA misinterpreted its statutory authority and vacated bo the CPP repeal and the ACE rule. EPA moved to stay its vacatur and the court granted the stay.
6. Facts: The Clean Air Act authorizes the EPA to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. In 2015, EPA issues a new rule concluding that the best system of emission reduction for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity or subsidize increased generation by natural gas, wind, or solar sources. The Plan would have compliance costs and reduce GDP. In 2019, EPA repealed the Clean Power Plan and replaced it with the ACE Rule. A number of States and parties filed petition for review in the DC Circuit, challenging EPA’s repeal of he Plan and enactment of the ACE Rule.
7. Rule:
8. Reasoning: Our precedents counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach.
The Acid Rain and NAAQS programs contemplate trading systems as a means of complying with an already established emissions limits, set by Congress. Congress added the above authorizations for the use of emissions trading programs in 1990, simultaneous with amending Section 111 to its present form.
Kagan dissenting: Congress knows what it doesn’t and can’t know when it drafts a statute and Congress therefore gives an expert agency the power to address issues as and when they arise. That is what Congress did in enacting Section 111.
The Court appoints itself the decision-maker on climate policy. I cannot think of many things more frightening.
- Biden v. Nebraska
1. Case Heading:
Parties:
Year: 2023
Court:
2. Disposition:
3. Holding: the Secretary of Education’s loan forgiveness program was not authorized by the Higher Education Relief Opportunities for Students Act of 2003, relying partially on the major questions doctrine to reach that conclusion.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: [n]o specific provision of the Education Act establishes an obligation on the part of student borrowers to pay back the Government,” so “ ‘waiver’—as used in the HEROES Act—cannot refer to ‘waiv[ing] loan balances’ or ‘waiving the obligation to repay’ on the part of a borrower.”
Kagan dissenting: the majority was “wrong to say that ‘the indicators from our previous major questions cases are present here,’ ” id., and that the Court’s decision “moves the goalposts for triggering the major questions doctrine.”
- Abbott Laboratories v. Gardner
1. Case Heading:
Parties:
Year: 1967
Court:
2. Disposition: Remanded to allow the court of appeals to decide the statutory authority question.
3. Holding:
4. Issue: whether Congress by the FDCA intended to forbid pre-enforcement review of this sort of regulation promulgated by the Commissioner.
5. Procedural History: The district court granted declaratory and injunctive relief; the court of appeals reversed on grounds that (i) pre-enforcement review was not authorized by the Act and (ii) because none of the plaintiffs had yet been accused of violating the rule, no actual case or controversy existed.
6. Facts: the 1962 amendments to the Federal FDCA required manufacturers of prescription drugs to print the established name of the drug prominently and in type at least half as large as that used there on for any proprietary name or designation for such drug. Shortly after the rule became final, 37 drug manufacturers and the PMA sued, arguing that the FDA had exceeded its statutory authority.
7. Rule:
8. Reasoning: we are wholly unpersuaded that the statutory scheme in the food and drug area excludes this type of action. We must inquire whether in the context of the entire legislative scheme the existence of that circumscribed remedy evinces a congressional purpose to bar agency action not within its purview from judicial review.
Whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed -> both sides approached this case as one purely of congressional intent, and the Government made no effort to justify the regulation in factual terms.
The regulations in issue we find to be final agency action within the meaning of 704 as construed in judicial decisions.
A pre-enforcement challenge by nearly all prescription drug manufacturers is calculated to speed enforcement.
Institution of this type of action does not by itself stay the effectiveness of the challenged regulation.
- Block v. CNI
1. Case Heading:
Parties:
Year: 1984
Court:
2. Disposition:
3. Holding: Congress intended that judicial review of the market orders issued under the Act ordinarily be confined to suits brought by handlers in accordance with section 608c(15).
4. Issue:
5. Procedural History: The district court held that the consumers and CNI had no standing to challenge the marketing order and the review was precluded. The court of appeals reversed.
6. Facts: the Agricultural Marketing Agreement Act directs the Secretary of Agriculture to adopt milk marketing orders setting minimum prices that milk handlers must pay to milk producers. The plaintiffs, CNI and consumers, petitioned the Secretary to begin a rulemaking to reclassify reconstituted milk to a lower price category. The Secretary invited comments, but there the process stalled. Plaintiffs filed suit challenging the inaction and the original marketing order. Secretary announced that he would not proceed and the inaction claim was dismissed as moot.
7. Rule:
8. Reasoning: the presumption favoring judicial review of admin action may be overcome by inferences of intent drawn from the statutory scheme as a whole.
The Court has found the ‘clear and convincing evidence’ standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme.
The presumption favoring judicial review of admin action does not control in this case since the congressional intent to preclude judicial review is fairly discernible in the detail of the legislative scheme.
- Holbrook v. TVA
1. Case Heading:
Parties:
Year: 2022
Court:
2. Disposition: Affirm.
3. Holding: TVA ratemaking is committed to agency discretion by law.
4. Issue:
5. Procedural History: The district court dismissed all three claims because TVA’s ratemaking authority is committed to agency discretion and thus unreviewable.
6. Facts: The Tennessee Valley Authority sells its power to the BVU Authority in Virginia. The BVU Authority in turn sells its power to local consumers. Holbrook thinks he has been paying too much for power. He believes that the TVA has a statutory duty to use the fruits of its sales to large industrial buyers to subsidize consumers’ electricity consumption. He sued BVU Authority and TVA under three theories, which all more or less amount to claims that the TVA failed to live up to its statutory duties under § 11.
7. Rule:
8. Reasoning: Under the APA, “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof.” APA’s text lays out two exceptions to that basic principle: first, where “statutes preclude judicial review,” and second, where “agency action is committed to agency discretion by law.”
we must figure out whether TVA ratemaking is “committed to agency discretion by law.”
The first puzzle is how to differentiate the two exceptions to judicial review. So the first exception is for explicit statutory limitations on review, and the second exception—the one at issue—is for implicit limitations on review.
The second puzzle arises from the seeming tension between the second exception, § 701(a)(2), and § 706. If courts can naturally review for an abuse of discretion, they should; if they can’t, § 701(a)(2) tells them to steer clear.
“no law to apply” test asks whether this is one of “those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.”
Because the “no law to apply” test is so difficult to meet, the Supreme Court has often taken a different approach: to determine categories of administrative action that “courts traditionally have regarded as committed to agency discretion.”
We begin by considering whether TVA ratemaking is the kind of agency action that “has traditionally been committed to agency discretion.” It is. From there, we determine whether the TVA Act intentionally limits agency discretion by setting guidelines or otherwise providing a limit. It does not.
TVA price setting is a balancing act that demands significant expertise and involves complicated, counterfactual questions of resource allocation. Prices are agreed-to, not enforced. Therefore, these issues will rarely implicate the traditional rights-protecting duties of the federal courts.
TVA ratemaking is a category that has traditionally been insulated from judicial review and because Congress has not provided clear limits on the exercise of that discretion
- Heckler v. Chaney
1. Case Heading:
Parties:
Year: 1985
Court:
2. Disposition:
3. Holding: Rejected DC Circuit’s view.
4. Issue:
5. Procedural History: The DC Circuit found the refusal reviewable.
6. Facts: prisoners on death row tried to persuade the FDA to regulate the use of drugs for human execution. FDA refused on the ground that (1) its jurisdiction in the area was unclear but should not be exercised to interfere with state criminal justice practice; and (2) enforcement in the area of unapproved use of approved drugs was generally initiated only when there is a serious danger to the public health or a blatant scheme to defraud.
7. Rule:
8. Reasoning: an agency’s decision not to prosecute or enforce is a decision generally committed to an agency’s absolute discretion.
When an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts are often called upon to protect.
The decision is only presumptively unreviewable. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by circumscribing an agency’s power to discriminate.
- Norton v. Southern Utah Wilderness Alliance
1. Case Heading:
Parties:
Year: 2004
Court:
2. Disposition:
3. Holding: agency failures to act must meet criteria to be reviewable under the APA.
4. Issue:
5. Procedural History:
6. Facts: Environmental groups challenged the BLM’s failure to take action to limit off-road-vehicle usage on federal lands in Utah.
7. Rule:
8. Reasoning: A list of five categories of decisions involve circumscribed, discrete agency actions.
A claim under 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.
- Massachusetts v. EPA
1. Case Heading:
Parties:
Year: 2007
Court:
2. Disposition:
3. Holding: Mass. had standing to challenge EPA’s refusal to engage in a rulemaking on greenhouse gas emissions from new motor vehicles and such rulemaking refusals are reviewable.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: Agency refusals to initiate rulemaking are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation. Refusals to promulgate rules are susceptible to judicial review.
- Lincoln v. Vigil
1. Case Heading:
Parties:
Year:
Court:
2. Disposition:
3. Holding: 701(a)(2) jurisprudence recognizes certain categories of admin decisions that courts traditionally have regarded as committed to agency discretion.
4. Issue:
5. Procedural History:
6. Facts: The Indian Health Service decided to phase out a program that directly provided evaluative and clinical services to disabled Native American children in the Southwest in favor of what it described as a nationwide program. Children receiving services sued.
7. Rule: (1) decisions not to take enforcement action; (2) refusals to grant reconsideration of an action because of material error; (3) decisions to terminate an employee in the interests of national security.
8. Reasoning: Congress had made a lump-sum appropriation. 701(a)(2) gives the courts no leave to intrude. The decision to allocate funds is committed to agency discretion by law.
- NCUA v. First National Bank & Trust Co.
1. Case Heading:
Parties:
Year: 1998
Court:
2. Disposition:
3. Holding: We cannot accept petitioners’ argument that respondents do not have standing because there is no evidence that the Congress was concerned with the competitive interests of commercial banks.
4. Issue:
5. Procedural History:
6. Facts: since 1982, the NCUA, the agency charged with administering the FCUA, has interpreted section 109 to permit federal credit unions to be composed of multiple unrelated employer groups, each having its own common bond of occupation. Respondents, five banks and ABA, challenged this interpretation on the ground that section 109 requires that the same common bond of occupation unite every member.
7. Rule:
8. Reasoning: We interpreted section 10(a) to impose a prudential standing requirement in addition to the Article III requirement of injury in fact. For a prudential standing, the interest sought to be protected by the complainant must be arguably within the zone of interests to be protected or regulated by the statute in question.
For a plaintiff’s interest to be within the zone of interests, there does not have to be an indication of congressional purpose to benefit the would-be plaintiff. The inquiry is whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected by the statute.
As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCUA’s interpretation has affected that interest.
- California v. Trump
1. Case Heading:
Parties:
Year: 2020
Court:
2. Disposition:
3. Holding: the historical use of 8005 supports that states are reasonable and predictable challengers to its use.
4. Issue:
5. Procedural History:
6. Facts: CA and New Mexico, two states environmentally affected by the wall, had standing and satisfied the APA’s zone-of-interest test.
7. Rule:
8. Reasoning: invoked obstacles to congressional standing as a reason to apply the test particularly broadly here.
CA and NM are suitable challengers because their interests are congruent with those of Congress and are not inconsistent with the purposes implicit in the statute.
This challenge actively furthers Congress’s intent to tighten congressional control of the reprogramming process. The congressional committees expressly disapproved of DoD’s use of the authority here. The use of 8005 impacts CA and NM’s ability to enforce their state environmental laws. 8005’s limitations protect CA and NM’s sovereign interests because they ensure that Executive action cannot override these interests without congressional approval and funding.
The states regularly benefit from DoD’s use of 8005 and CA and NM’s interests are not so marginally related that it can reasonably be assumed that Congress intended to permit suit.
- Lujan v. Defenders of Wildlife
1. Case Heading:
Year: 1992
Court:
2. Disposition: Reversed.
3. Holding: In suits against the government, at least, the concrete injury requirement must remain. Respondents lack standing to bring this action.
4. Issue: whether the respondents here have standing to seek judicial review of the rule.
5. Procedural History: The Secretary moved for summary judgment on the standing issue, and plaintiffs moved for summary judgment on the merits. The District Court denied the Secretary’s motion and granted plaintiffs’ merits motion. The Court of Appeals affirmed.
6. Facts: Section 7(a)(2) of the ESA divides responsibility for protecting endangered species between the Secretary of the Interior and the Secretary of Commerce. The Secretaries initially promulgated a joint regulation interpreting 7(a)(2) to apply to actions taken in foreign nations. A revised joint regulation, reinterpreting section 7(a)(2) to require consultation only for actions taken in the US or on the high seas, was promulgated in 1986. Defenders filed action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error, and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation.
7. Rule: standing contains three elements: plaintiff must have suffered an injury in fact, that is concrete and particularized, actual or imminent; a causal connection exists between the injury and the conduct complained of; and it must be likely that the injury will be redressed by a favorable decision.
8. Reasoning: The core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.
Plaintiffs have not made the requisite demonstration of injury and redressability. The injury in fact requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.
Injury – They plainly contain no facts showing how damage to the species will produce “imminent” injury to Mss. Kelly and Skilbred.
Redressability – respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated.
Claim that respondents suffered a procedural injury – reject that injury-in-fact was satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental right to have the Executive observe the procedures required by law.
A plaintiff raising only a generally available grievance about government does not state an Article III case or controversy.
- TransUnion LLC v. Ramirez
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition: Reverse and remand.
3. Holding: No concrete harm, no standing. The 1853 members suffered a concrete harm and have standing as to the reasonable-procedures claim. The 6332 members did not suffer a concrete harm and do not have standing.
4. Issue:
5. Procedural History: Court granted certification and found that all the plaintiffs had standing. A jury found for the plaintiffs. The Court of Appeals held that all members of the class had standing as to all three claims.
6. Facts: The Fair Credit Reporting Act seeks to promote “fair and accurate credit reporting” and to protect consumer privacy. To achieve those goals, the Act imposes a host of requirements. The Act requires consumer reporting agencies to follow reasonable procedures to assure maximum possible accuracy in consumer reports. The Act provides that consumer reporting agencies must disclose to the consumer all information in the consumer’s file at the time of the request. The Act compels consumer reporting agencies to provide to a consumer, with each written disclosure by the agency to the consumer, a summary of rights prepared by the CFPB. TransUnion introduced OFAC Name Screen Alert that produced false positives as potential matches of ordinary citizens with national security threats. Ramirez sued TransUnion alleging violations of the Act and sought to certify a class.
7. Rule:
8. Reasoning: the question in this cases focuses on whether the injury in fact is concrete.
The choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs.
Plaintiffs contend the injury bears a close relationship to a reputational harm. Agree that the 1835 class members whose reports were disseminated to third parties suffered a concrete injury in fact under Article III.
For the remaining 6332 members, the mere presence of an inaccuracy in an internal credit file, if its is not disclosed to a third party, causes no concrete harm.
In a suit for damages, the mere risk of future harm, standing alone, cannot qualify as a concrete harm, at least unless the exposure to the risk of future harm itself causes a separate concrete harm. Plaintiffs did not demonstrate a sufficient likelihood that their individual credit information would be requested by third-party. Nor did Plaintiffs demonstrate that there was a sufficient likelihood that TransUnion would intentionally or accidentally release their information to third parties. Members did not even know that there were OFAC alerts in their internal credit files.
Thomas dissenting: TransUnion erroneously flagged many people and violated provisions of the FCRA and such misdeeds deserve redress. The jury found that TransUnion violated three separate duties and those duties are owed to individuals.
- Summers v. Earth Island Institute
1. Case Heading:
Parties:
Year: 2009
Court: Supreme Court of the US
2. Disposition:
3. Holding: Plaintiffs lack standing.
4. Issue:
5. Procedural History: The District Court issued a preliminary injunction.
6. Facts: The Forest Service Decisionmaking and Appeals Reform Act requires the Forest Service to establish a notice, comment, and appeal process for proposed Forest Service actions related to land and resource management plans. The Forest Service’s regulations provided that certain activities, including fire rehabilitation activities and timber salvage sales prompted by small forest fires, would be exempt from the requirements. A group of orgs sued to challenge the regulation exempting the sales. A member repeatedly visited Burnt Ridge and his interests would be harmed if Burnt Ridge Project went forward without incorporating his ideas.
7. Rule:
8. Reasoning: Accepting an intention to visit the Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact.
Deprivation of a procedural right without some concrete interest that is affected by the deprivation is insufficient to create Article III standing.
Unlike redressability the requirement of injury in fact is a hard floor that cannot be removed by statute.
Breyer dissenting:
- Allen v. Wright
1. Case Heading:
Parties:
Year: 1984
Court:
2. Disposition: The judgment of the Court of Appeals is reversed and the injunction vacated.
3. Holding: Rejected the claim as lacking the causation required for standing.
4. Issue:
5. Procedural History:
6. Facts: the IRS had a formal policy of denying charitable tax-exempt status to racially discriminatory schools. Parents of African-American children attending public schools in districts undergoing court-ordered desegregation sued the IRS alleging that the guidelines and procedures were inadequate to ensure that racially discriminatory private schools did not receive tax-exempt status. They also sought more vigorous enforcement of the policy. Respondents allege that many racially segregated private schools were created or expanded and many of them received tax exemptions. The allege that the conduct constitutes tangible federal financial aid for racially segregated educational institutions and fosters and encourages the organization, operation, and expansion of institutions providing segregated opportunities and interferes with efforts of courts, HEW, and school authorities. Respondents claim a direct injury from the mere fact of the challenged conduct.
7. Rule:
8. Reasoning: only those personally denied equal treatment have standing to challenge racial discrimination.
The injury they identify-their children’s diminished ability to receive an education in a racially integrated school- cannot support standing because the injury alleged is not fairly traceable to the Government conduct respondents challenge as unlawful.
It is uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. It is speculative whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.
The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents’ standing.
Stevens dissenting:
- California v. Texas
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition:
3. Holding: none of the plaintiffs had standing to bring the challenge because they had not shown their alleged injuries were traceable to the allegedly unlawful conduct.
4. Issue:
5. Procedural History:
6. Facts: after the Court in a prior case upheld the ACA’s mandate, Congress amended the ACA and stripped the mandate of any tax consequences for failure to comply. The plaintiffs contended that the charge rendered the mandate unconstitutional and the rest of the statute could not be severed from it.
7. Rule:
8. Reasoning: the plaintiffs could identify no government action as the cause of their alleged injury, the individuals lacked standing.
Plaintiff claimed injury: increased costs to run state-operated medical insurance programs joined to satisfy the mandate’s requirements -> costs were not traceable to the mandate.
Plaintiff claimed injury: higher administrative costs directly imposed by other provisions of the ACA -> provisions operated independently of the mandate and the injury was not traceable to enforcement of the provision.
- FEC v. Cruz
1. Case Heading:
Parties:
Year: 2022
Court:
2. Disposition:
3. Holding: Cruz had standing and Section 304 violated the First Amendment.
4. Issue:
5. Procedural History:
6. Facts: Senator Cruz sued the FEC, claiming that Section 304 of the Bipartisan Campaign Reform act violated the First Amendment. Section 304 imposed a $250000 limit on the amount that candidates who loan money to their campaigns can be repaid from postelection contributions. Cruz loaned his campaign $260000 but it repaid only $250000. Cruz stipulated that the only reason he made the loan and his campaign waited to repay him was to create the factual basis for the challenge. The FEC maintained that the injuries were not traceable to the enforcement of Section 304.
7. Rule:
8. Reasoning: FEC’s argument: inability to repay was self-inflicted -> injury resulting from the application or threatened application of an unlawful enactment remains traceable to such application.
Demanding that the Committee comply with the Government’s alternative of paying back within 20 days would require it to forgo the exercise of a First Amendment right.
FEC’s argument: campaign used pre-election funds in repaying the $250000 and it was enforcement of the 20day time limit imposed by the FEC regulation that caused the harm. -> inability of the Committee to repay and Cruz to recover is traceable to the operation of Section 304 itself.
The FEC’s 20-day rule was promulgated to implement Section 304. If Section 304 is invalid and unenforceable the agency’s 20-day rule is as well.
- Friends of the Earth v. Laidlaw
1. Case Heading:
Parties:
Year: 2000
Court:
2. Disposition:
3. Holding: private plaintiffs have standing.
4. Issue:
5. Procedural History:
6. Facts: FOE sought civil penalties for a company’s discharges of mercury in violation of the Clean Water Act.
7. Rule:
8. Reasoning: company argued: because civil penalties are paid to the government, such penalties offer no redress to private plaintiffs and there could be no standing. -> disagreed; civil penalties promote immediate compliance and deter future violations.
Here the civil penalties sought by FOE carried with them a deterrent effect that made it likely that the penalties would redress FOE’s injuries by abating current violations and preventing future ones.
Scalia dissenting:
- Mass. v. EPA
1. Case Heading:
Parties:
Year: 2009
Court:
2. Disposition:
3. Holding: Petitioners have standing to challenge the EPA’s denial of their rulemaking petition.
4. Issue:
5. Procedural History: The DC Circuit upheld EPA’s refusal to regulate. The Supreme Court reversed.
6. Facts: Environmental organizations attempted to get EPA to regulate greenhouse gas emissions from new motor vehicles. The group petitioned EPA to undertake a rulemaking. EPA denied the petition. Groups sued.
7. Rule:
8. Reasoning: rejected that injury from global warming was nonjusticiable because of Mass’s status as a sovereign state. Loss of Mass coastline sufficed to show the requisite injury-in-fact for standing.
EPA does not dispute a causal connection between gas and global warming but argues that emissions from new motor vehicles contribute so insignificantly; relief would not mitigate climate change and remedy their injuries. -> agencies resolve problems in incremental steps. US vehicle emissions make a meaningful contribution to global warming.
Roberts dissenting:
- Darby v. Cisneros
1. Case Heading:
Parties:
Year: 1993
Court:
2. Disposition:
3. Holding: Darby’s action must be permitted to go forward, because neither the governing statute nor HUD regulations mandated an appeal to the Secretary.
4. Issue: whether federal courts have the authority to require that a plaintiff exhaust available administrative remedies before seeking judicial review under the APA, where neither the statute nor agency rules mandate exhaustion as a prerequisite to judicial review. What is the relationship between the judicially created doctrine of exhaustion of admin remedies and the statutory requirements of 704.
5. Procedural History:
6. Facts: Darby, a real estate developer, sought review of an ALJ decision that he had engaged in improper financial practices and should be barred from participating in HUD programs for 18 months. Under HUD regulations, any party may request a review in writing within 15 days of receipt of the ALJ’s determination. The agency argued that Darby’s failure to request this review foreclosed judicial review.
7. Rule:
8. Reasoning: Petitioners argue that this provision means that a litigant seeking judicial review under the APA need not exhaust available admin remedies unless such exhaustion is expressly required by statute or agency rule. Respondents contend that the section is concerned with timing, when agency actions become final, and that Congress had no intention to interfere with the courts’ ability to impose conditions on the timing. -> petitioners are correct.
704 has limited the availability of the doctrine of exhaustion of admin remedies to that which the statute or rule clearly mandates.
The exhaustion doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA.
- Carr v. Saul
1. Case Heading:
Parties:
Year: 2021
Court:
2. Disposition: Reversed.
3. Holding: Allow the petitioners to raise their constitutional claims in court even though they did not raise it before an ALJ.
4. Issue:
5. Procedural History: The 10th Circuit held that because petitioners had not raised this argument in their initial proceedings, the exhaustion doctrine precluded judicial review.
6. Facts: Shortly after ALJs in the Social Security Administration denied petitioners’ applications for disability benefits, Lucia was held. Because the SSA ALJs who denied the claims were appointed by lower-level staff in violation of Lucia, petitioners argued that Lucia entitled them to a new hearing.
7. Rule:
8. Reasoning: ALJs are generally ill suited to address structural constitutional challenges.
The SSA’s admin review scheme at no point afforded petitioners access to the Commissioner. Nor were the ALJs capable of remedying any defects in their own appointments. Requiring exhaustion would do little to protect the SSA’s authority or promote judicial efficiency.
The Court stressed the inquisitorial features of SSA ALJ proceedings and issue exhaustion played a central role in adversarial context.
The Court was addressing a judicially created issue-exhaustion requirement.
- Sackett v. EPA
1. Case Heading:
Parties:
Year: 2012
Court:
2. Disposition: Reverse the judgment and remand.
3. Holding: the compliance order is final agency action for which there is no adequate remedy other than APA review and the CWA does not preclude that review.
4. Issue:
5. Procedural History: the District Court dismissed for lack of subject-matter jurisdiction. The Ninth Circuit affirmed, concluding that the CWA precluded pre-enforcement judicial review of compliance orders and that preclusion was not a due process violation.
6. Facts: the Clean Water Act prohibits “the discharge of any pollutant by any person,” without a permit, into the navigable waters. Upon determining that a violation has occurred, the EPA may either issue a compliance order or initiate a civil enforcement action. The Sacketts received a compliance order from the EPA stating that their construction project violated the Act. The EPA denied the Sacketts’ request for a hearing. The Sacketts challenged the compliance order as “arbitrary and capricious” and a due process violation.
7. Rule:
8. Reasoning: compliance order is agency action, but is it final? The mere possibility that an agency might reconsider in light of “informal discussion” and invited contentions of inaccuracy does not suffice to make a final agency action nonfinal.
The APA’s judicial review provision also requires that the person seeking APA review of final agency action have other adequate remedy in a court. -> Sacketts did not have one.
It is consistent to allow judicial review when the recipient does not choose “voluntary compliance.”
Govt: compliance orders are not self-executing. -> The APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanction.
Govt: Congress expressly provided for prompt judicial review. -> if the express provision of judicial review were enough to overcome the APA’s presumption of reviewability, it would not be a presumption at all.
Govt: EPA is less likely to use compliance orders if they are subject to judicial review. -> orders will remain an effective means.
The issuance of a compliance order qualifies as final agency action.
- Abbott Labs v. Gardner
1. Case Heading:
Parties:
Year: 1967
Court:
2. Disposition:
3. Holding: established the modern framework for ripeness analysis, where a court must evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
4. Issue:
5. Procedural History:
6. Facts: described ripeness as a justiciability doctrine
7. Rule:
8. Reasoning:
- Toilet Goods Ass’n Inc. v. Gardner
1. Case Heading:
Parties:
Year: 1967
Court:
2. Disposition:
3. Holding: the challenge was not ripe.
4. Issue:
5. Procedural History:
6. Facts: cosmetic manufacturers sought pre-enforcement review of regulations requiring them to give FDA inspectors access to their manufacturing processes and formulas for making color additives.
7. Rule:
8. Reasoning: petitioners contend that the issue presents a legal question of whether the regulation is totally beyond the agency’s power under the statute. These points are outweighed by other considerations.
Whether the regulation is justified depends on whether the statutory scheme as a whole justified promulgation of the regulation. This will depend on inquiry into statutory purpose and on an understanding of what types of enforcement problems are encountered by the FDA the need for various sorts of supervision, and the safeguards devised.
A refusal to admit an inspector here would at most lead only to a suspension of certification services to the particular party.
- Corner Post v. Bd. of Governors of Federal Reserve Sys.
1. Case Heading:
Parties:
Year: 2024
Court:
2. Disposition: Reverse.
3. Holding: the default six-year statute of limitations applicable to pre-enforcement challenges to rules under the APA does not start to run until the plaintiff is injured by final agency action.
4. Issue:
5. Procedural History: The lower courts held that such a facial challenge to the regulation was time-barred under § 2401(a) because more than six years had elapsed since the final regulation was published.
6. Facts: The challenge involved 2011 Federal Reserve regulation governing the maximum fees credit card issuers can charge merchants when customers use their cards. The challenge was brought by a truck stop and convenience store that opened in 2018, and alleged that the regulation authorized fees above what the governing statute allowed.
7. Rule:
8. Reasoning: The Federal Reserve argued that an APA claim “accrues” when agency action at issue is final for purposes of § 704. -> disagreed; “[a] right of action ‘accrues’ when the plaintiff has a complete and present cause of action and “[a]n APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured.
Jackson dissenting: