1. Judicial Review "The rules governing judicial review have no more substance at the core than a seedless grape."

2. 2 Key Questions When can the court substitute its judgment for the agency's judgment? How much does the court defer to the agency's decision? Why is some level of deference to the agency critical to agency function?

3. 3 Review of Rulemaking and Formal APA Proceedings APA § 706. Scope of review http://biotech.law.lsu.edu/Courses/study_aids/adl aw/706.htm http://biotech.law.lsu.edu/Courses/study_aids/adl aw/706.htm

4. 4 Questions of Law What are the different types of questions of law? Why are these essentially facial challenges? Is the agency more expert in law than the court?

5. 5 Chevron Clean Air Act Case EPA wanted to consider all of the sources of pollution within a given chemical plant as one source - the bubble model What would be the advantage of this for EPA? Why would environmentalists oppose it? The statute did not give clear guidance What should the court do?

6. 6 Chevron Step One If the statute speaks clearly to the point, then you have to follow the statute This assumes that the statute is constitutional

7. 7 Chevron Step Two If the statute is silent or ambiguous a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency

8. 8 What does it Mean to Be Silent or Ambiguous? Do you just look at the statute itself? Scalia, usually. Do you include legislative intent? Breyer, usually.

9. 9 Political Control of Agencies How does Chevron deference fit with the political control of agencies? Is this a liberal/conservative view?

10. 10 Barnhart Factors for Evaluating the Persuasiveness of the Agency The importance of interpretation to agency policy; The period that the agency has held the view; The legal expertise of the agency; The complexity of the problem; These modify Mead What can the agency due to strengthen its case for deference?

11. 11 Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) The Family and Medical Leave Act (FMLA) does not define medical treatment The agency finds that visits to the doctor that do not require specific treatment are covered by the act What is the ambiguity? Did the court accept the agency interpretation? Why does this decision make practical sense?

12. 12 Christensen v. Harris County, 529 U.S. 576 (2000) What did the court rule? “Here... we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron -style deference.” Chevron Why is this consistent with our definition of a guidance document?

13. 13 United States v. Mead, 533 U.S. 218 (2001) administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. What would you look for to decide if Mead applied?

14. 14 Public Citizen v. U.S. Dept. of Health and Human Services, 332 F.3d 654 (D.C. Cir. 2003) Is the Medicare Manual a notice and comment regulation? If not, what is it? Does this look more like Mead or Chevron? Did the court find that the Medicare Manual was binding? Is this consistent with Barnhart? Are Mead and Barnhart really consistent?

15. 15 ABA Adlaw Conference - Justice Garland, 2nd Cir, on Chevron: If you have an ambiguous statute, and need Chevron deference, do not say that the interpretation is clear and there is no other way to construe the law. Say it is ambiguous and you are making a reasonable interpretation based on your knowledge of the statute and the regulatory circumstances.

16. 16 Interpretation of Agency Rules Should interpretation of rules and statutes be the same standard? Are they? How are interpretations of rules treated differently? What perverse incentives does this give the agency?

17. Judicial Review of Facts

18. 18 Scope of Judicial Review of Facts Congress sets scope of review, within constitutional boundaries. Since the Constitution is silent on agencies, Congress has a pretty free hand Congress can allow anything from a trial de novo to no review, unless such an action runs afoul of the constitution.

19. 19 Trial De Novo You start over at the trial court Agency findings can be used as evidence, but there is no deference to the agency FOIA Used more by the states than the feds

20. 20 Independent Judgment on the Evidence Decide on the agency record, but do not defer to the agency's interpretation of the record Sort of like appeals in LA

21. 21 Clearly Erroneous Definite and firm conviction that a mistake has been made on the facts or policy Same as reviewing a verdict by a trial judge without a jury

22. 22 Substantial Evidence - Formal Adjudications 706(2)(E) - only applies to formal adjudications and formal rulemaking Could a reasonable person have reached the same conclusion? Standard for reviewing a jury verdict or for taking a case from the jury Should a jury get more or less deference than an agency? Hint - substantial means some, not a lot, when you are the agency

23. 23 Substantial Evidence - Informal Adjudications and Rulemaking 706(2)(A) Arbitrary and capricious or abuse of discretion Same assessment of reasonableness as 706(2)(E), so the result is about the same as the substantial evidence test used for formal proceedings

24. 24 Some Evidence Scintilla test The agency needs to show even less than in the substantial evidence standard Only limited use

25. 25 Facts Not Reviewable At All Congress can prevent certain types of judicial review Compensation decisions under the Smallpox Vaccine Compensation Act are not reviewable Enabling law is always reviewable unless Congress has taken away the court's subject matter jurisdiction

26. 26 What if the Court thinks the Agency is Wrong? Should the court defer to findings which it believes are clearly erroneous, but are supported by substantial evidence? Why is this consistent with the political control of agencies? When the legislature gives the agency the power, it is also saying that it only wants agency decisions overturned in the most serious cases Courts have different political views than agencies and thus they should be esp. careful about reversing agency decisions.

27. 27 Conflicts between ALJs and the agency: Universal Camera v. NLRB, 340 US 474 (1951) Employer fires chairman after he testified at an NLRB meeting What did the hearing officer do? Believed the company and did not reinstate him What did the NLRB do? NLRB rejects the hearing officer's finding Reinstated the chairman with back pay

28. 28 What is the key legal issue before the court? Should the court reviewing the NLRB's action consider the hearing officer's recommendation? Is the agency bound by the hearing examiner's opinion? Should the court look only to the part of the record that the agency relies on for their decision or the record as a whole? Court says you have to look at the whole record, including the ALJ's findings

29. 29 When Are the ALJ's Findings Most Persuasive? What type of rulings by an ALJ carry the most weight with the court when there is conflict between the ALJ and the agency?

30. 30 ALJs v. Court Masters Why is the deference due an ALJ different from the deference due a master appointed to a judge, whose findings can only be overruled if clearly erroneous? Where does the Master get the power? What if the agency does delegate final decsionmaking authority to the ALJ, then wants to change a decision?

31. 31 Do Chevron and Substantial Evidence Come to the Same Result? Chevron is about interpretations of statutes Substantial evidence is about factual disputes What about mixed questions of law and fact? Does it really matter which standard we apply? Is this a correct approach?

32. 32 Adjudications and Other Informal Actions Applications of Law to Facts Usually arbitrary and capricious review

33. 33 Arbitrary and Capricious Review Old definition Highly deferential to the agency Same as rational relationship test in conlaw Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) Added the notion of looking at the administrative record before the agency Remember, this was about whether there was a reasonable and prudent alternative

34. 34 National Lime Assn. v. EPA, 627 F.2d 416, 453 (D.C. Cir. 1980) [judicial review should] evince a concern that variables be accounted for, that the representativeness of test conditions be ascertained, that the validity of tests be assured and the statistical significance of results determined. Collectively, these concerns have sometimes been expressed as a need for “reasoned decision- making.”... However expressed, these more substantive concerns have been coupled with a requirement that assumptions be stated, that process be revealed, that the rejection of alternate theories or abandonment of alternate course of action be explained and that the rationale for the ultimate decision be set forth in a manner which permits the... courts to exercise their statutory responsibility upon review.

35. 35 When Should the Court Allow the Record to be Supplemented (de novo review)? Like a trial transcript on appeal, the record is usually closed There can be an exception if the issue being appealed to the courts is the agency's failure to allow outside input and thus failing to consider all relevant factors. There can also be an exception if the plaintiff makes a credible showing of significant bias by the agency and the court needs to evaluate it. RARE

36. 36 Review of Rules

37. 37 Defending a Rule Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C. Cir. 1985) The proposed rulemaking must explain the basis of the rule. In this case the court found that an important issued raised in comments had not been addressed, making the determination arbitrary This can be cured by republishing with more info

38. 38 What is the Standard for Rescinding a Rule? If a rule was properly promulgated, it was based on a record justifying the need for the rule If the agency wants to rescind the rule, it must do a comment explaining why the underlying situation has changed, making the rule unnecessary.

39. 39 Can You Force the Agency to Make or Change a Rule? If the statute provides for a set time What if the agency still cannot get it done? If there is no set time Did the agency respond to your request? If the agency says there is a legal bar, the court can review that What if the agency says it has more important rules to make?

40. 40 Remedies for Improper Rules Remand but leave the rule in force Cannot do this for unconstitutional rules or rules that exceed agency authority What is the impact of staying the rule? Remand and stay the rule Will wild animals escape? Will there be risks? Is the court defeating agency policy making?

41. 41 Relying on Agency Advice - Equitable Estoppel You cannot get money damages - no appropriations Not under the tort claims act It is a defense to criminal claims Can be a defense to civil enforcement How did you get the advice? IRS letter ruling v. advice over the phone? Relying on an agency mistake or failure to enforce a law does not work

42. 42 Collateral Estoppel and Non-Acquiesce Same facts, same parties Government is bound Same facts, different parties Government is not bound Non-Acquiesce The government can relitigate the same facts (different parties) in different circuits to get better results Or to get a split to get United States Supreme Court review