Administrative Law Course Outline

1993-94 Due Process Matthews v. Eldridge is current standard Issue Spotting Questions Whether When What kind Three Factors (Matthews) the private interest affected the risk of error in agency's decision making process governments interest in maintining existing procedures weighed in terms of both fiscal and administrative burdens Whenever government action affects citizen's rights process is due Exceptions Waiver Emergency Legislative type actions (Bi-Metallic) No facts found (legislative facts not adjudicative) "Privilege" not in federal context but in some states Immigration Cases Private Action Application for Government Benefits Timing (When) Case by case determination. Courts favor some type of pre- decision process, however there are no hard rules. Usually, if the harm can be remedied by post decision process, court will approve (restoration of monetary benefits). If harm can't be corrected post decision, favor pre-decision process (posting of drunkard lists). Mutual exclusivity requires simultaneous decision. (Licenses) What kind risk of error and government efficiency are key factors Boundaries "Notice and Opportunity to be heard" are rock bottom floor. CEILING is Goldberg type procedure. Neutral decision maker, confrontation and exclusive record. Trial type or evidentiary hearing. Statutes can add more procedure Agency Decisions : Rule or Order Rule APA 551(4) the whole or part of agency statement of general or particular applicability of future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of the agency. Basic Rulemaking is Notice and Comment Agency rule is analogous to congressional statute Order APA 551(6) Residual definition. Agency pronouncement that is not a rule. "the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking but including licensing. Outcome of an adjudication. Not required to be published APA prefers rulemaking as way of agency policy. However, some agencies, like NLRB and FTC rely on orders to announce policy. Excelsior Underwear and Wyman-Gordon Rules regarding providing names for labor elections was held for future cases, but not applied to Excelsior (NLRB) Wyman-Gordon disputed application of rule to them but S.Ct. said choice or rule or order was within decision making power of agency. Upheld order. Bell Aerospace NLRB had changed policy from case to case. Second circuit said policy changes must be decided by rule. S.Ct. held that agency could use orders, had not abused discretion. Criteria for agency discretion. Diversity and complexity may favor case by case Little evidence that Bell had relied on earlier decisions. Change of policy did not create new liability Company did not face fines or damages. Rule Order Controversy: Well settled. Most agencies, except NLRB will proceed by rules, however agency has power to use order. Challenge to rule order is usually judicial waste of time. Rulemaking Who's ox is being gored? Two attacks: (1) substantive provisions or (2) the way the rule was made (not favored by S.Ct.) Rulemaking under APA From Enabling Act (congress can make interim emergency rules) From Agency when investigation shows rules are necessary From citizens "interested persons right to petition." Found in š 553 APA "553 Rulemaking" "notice and comment rulemaking" "informal rulemaking" Scope of š 553 Must fit definition of agency Exemptions Military or foreign affairs management or personnel public property loans grants benefits and contracts. Notice Requirement Time place and nature of public rulemaking proceedings Statement of legal authority Language of proposed rule or merely a description of the topics and issues involved Invitation to any interested persons to submit comments. Usually a cut off date. Exceptions to notice requirement 553(b) Interpretive rules, general statement of policy or rules of agency organization, procedure, or practice. Good Cause Finding that notice is impracticable, unnecessary, or contrary to public interest. This finding must be published. Courts usually defer to agencies. Comment Most agencies must accept written comments. Some (FTC) need oral hearings. Agency must log and review. Especially good faith requirement to review from entities seriously affected. Court will be suspicious of agency rule that ignores all comment. Final Rule Concise and general statement of basis and purpose In effect no earlier than 30 days Exceptions A rule that provides and exemption or relieves restriction. (eases regulations) Interpretive rules and policy statements Good cause finding. Included in publication. Courts can not impose additional rulemaking on agencies that is not found in Enabling Act, APA, or Agencies own Rules Florida East Coast Railway ICC could promulgate rules "after hearing" Opponents argued for formal rule-making under 556-57 APA and IC Act use hearing does not trigger formal rulemaking unless language "on the record after opportunity for agency hearing" is used. IC Act does not require more process than APA Formal rulemaking is never required unless Congress uses the precise words in the enabling act. Hybrid Rulemaking Vermont Yankee Hybrid rulemaking is when agency uses more procedure than required under 553 of APA but less than 556-57. Courts can not order agency to use more rulemaking procedures than those of 553 unless enabling act requires. Vermont Yankee rulemaking used oral hearings and written reports. Challenger wanted to invalidate findings of NRC because they couldn't cross examine author of some of tables and data. The Circuit Court held for challenge, reversed by S.Ct. Exception might be Goldberg v. Kelley extremely compelling circumstances. Congress can compel Hybrid Rulemaking e.g. Magnuson-Moss Act. Sets procedures for FTC rulemaking. Agency can chose Hybrid Rulemaking Negotiated Rulemaking Negotiated Rulemaking Act of 1990 Usually small group of participants whose interests are limited. By committee with balanced representation Notice published in Fed. Register and people can request to be on committee. If committee is successful in developing proposed rule it is published and notice and comment proceed. If committee fails, agency has basis for rulemaking Other restrictions by Statute Government in Sunshine Act NEPA Paperwork Reduction Act Regulatory Flexibility Act Supervision by OMB Reagan ordered OMB to institute policies for agencies. Cost-Benefit Analysis of Proposed Regulations Agency must prepare Regulatory Impact Statement Competitiveness Council under Bush-Quayle Cost Benefit Analysis Regulation is analyzed, costs against benefits. If cost outweigh benefits, action is not taken. If benefits outweigh costs action taken. Problems of proportionality and incremental costs of 100% benefit. A portion of action may result in greater savings. Supreme Court Rulings Benzene: overturned statute requiring agency to set standard which insures to the extent feasible no employee will suffer material impairment even with regular exposure. Act did not give OSHA authority to set up risk free criteria. Cotton Dust: Manufacturers argued for standard based on cost- benefit analysis of "feasible". Unions argued that "feasible" means whatever is technologically possible. Court held that no cost-benefit is necessary because Congress had performed cost benefit in passing the regs. Ex parte Contact Problems of revolving door and "captive agency" (agency caters to the constituency it regulates. APA makes it clear that ex-parte contacts in adjudication are generally prohibited. In rulemaking is difficult, because agency encourages input. Several cases have ruled on improper ex parte contact during rulemaking procedures. HBO v FCC Commissioners had input from companies off the record. Rules stated basis is in comments. Court invalidated the regulations and sent it back to the commission. ACT v FCC Rulemaking canceled after 'jawboning' and voluntary compliance by networks. Court upheld the agency. Sierra Club v Costle: White House contacts with EPA expressing its views. Court held not wrong, but actually important for agency to have the views of other executive agencies and President. Bias Association of National Advertisers v FTC Pertschuk had expressed opinions during rule making procedures. Move to disqualify him. Court held that it is not basis for disqualification in informal rulemaking procedures. Contrasted to bias of Federal Judge or to a Commissioner who must adjudicate. (Cinderellea Cases, Dixion). Less problem with bias in informal rulemaking. May be more of a problem in hybrid, formal rulemaking. Definitely a problem in adjudication. Substantive Rules v. Other types of Agency Pronouncements Substantive rules have effect of law e.g. federal statute. United States v Nixon Not only people, but agency restricted by the rules. Agency is bound by the rules it passes about itself. RULE MAY NOT BE ABANDONED OR RESCINDED BY AGENCY EXCEPT BY THE SAME PROCEDURES IT WAS PASSED. State Farm: Challenged DOT's decision to modify passive restraint rules. Standard for making the rule and doing away with it are the same. DOT failed to provide a "reasoned analysis" Retroactive Effect of Agency Rules Substantive rules are not generally retroactive. However, an interpretive rule may be. If rule states how a formula is to be calculated, it may be an interpretive rule, but will have a serious retroactive effect. Estoppel Against Government The Government may not be estopped. YOU RELY ON ADVICE GIVEN YOU BY AGENCY PERSONNEL AT YOUR OWN RISK. Public policy requires different standard for government (Merrill) ON Notice Because the Rules were Published. Agency does not have to invoke estoppel Although no difference between oral and written, some written communication may be honored Especially if from high ranking official. Sometimes agency will agree to be bound by written decisions. IRS rulings. Take a lot of time Declaratory Order under š 554(e) Like declaratory judgment. Needs to go through informal rulemaking. CHECKLIST FOR RULEMAKING ISSUES A. Is it Rule or Order. (Courts won't disturb orders) B. Look at Procedure and Contents Separately Procedures Evaluate procedures being used. Unless congress says differently š 553 is the maximum required. Unless exceptions Read the enabling act. Agency must follow specific procedures. Is bound by its own rules (Nixon) Must follow 553 procedures or may be invalid. Proper procedures must be followed when amending and rescinding (State Farm) Distinguish interpretive from substantive. Agency will often put interpretive rules through rulemaking to make sure they are upheld. Review record for ex-parte contacts Consideration of Substance a. Compare what rule says with enabling act. If rule exceeds limits of enabling act, agency is acting in excess of its authority. b. Review the statement of basis and purpose. If agency had not provided a reasonable and rational explanation of purpose for rule or recission court will overturn the agencies action as arbitrary and capricious. c. Agency may not be estopped for erroneous advice. BIAS Role of ALJ Pre-Decisional Bias Test for Bias " Whether a disinterested observer may conclude that the agency has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it." Paul Dixon FTC Chair Statements made in course of duties are not usually grounds for disqualification. Bias at Hearing Very hard to establish Get on written record (the judge is reading a newspaper) Rule of Necessity Questions of bias moot, because there are not other means to resolve the issue. e.g. Judges ruling on dispute of judges pay. People who have financial stake in outcome of hearing will have very difficult time surviving as decision makers. Gibson v. Berryhill (Optometry cases) Tumey (Departments budget salaries tied to revenue from traffic violations.) Informal Agency Action Is agency required to take action Does Action affect private person IF 1 & 2 YES Is it rulemaking? If not, does agency provide a trial-type hearing before decision? IF NOT, Agency is engaged in informal action. š 555(e) APA Prompt notice shall be given in whole or in part of a written application, petition, or other request of an interested person made in connection with an agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by brief statement of the grounds for denial. Not applicable to mass of administrative routine unrelated to specific proceedings. Control of Informal Agency Action by Courts Control of Substance Overton Park: Secretary had to (1) consider alternatives (2) insure steps to minimize environmental damage. Courts Standard of Review = Arbitrary and Capricious Court held that record was not sufficient for court to reach any conclusions as to validity of secretary's action. No need for formal findings and conclusions but must give reasons for action. No post-hoc rationalization Overton Park sets basis that reviewing court must take a hard look at the agency record to determine whether the underlying statutes have been complied with and proper procedures followed. PROTECTS AGAINST UNFETTERED AGENCY DISCRETION Control of Procedure of Informal Action Does it comply with procedures in enabling act With existing agency procedural regulations Compatible with constitutional due process Getting Into Court: Judicial Review of Agency Action Courts review relatively small number of decisions Courts set aside even fewer decisions Whether the case can be taken to court When judicial review is appropriate What kind of review will the court perform Jurisdiction Enabling Act General Jurisdictional Statutes šš 1331, 1337 Even in enabling act, Congress may have created multiplicity of jurisdictions. Venue, Service of Process Proper Form of Action A regulated party can raise the issue of validity of statute any time it is applied to them, even if 30 day time period has expired. Sovereign Immunity Not bar to actions for declaratory and injunctive relief. Can bar claims for monetary damage. Can bring suits under FTCA or Tucker act or Bivens type action against the employee (not the agency). Preclusion If the matter is precluded, the court may not act. Statutory Preclusion Matters committed to agency discretion Presumption in Favor of Judicial Review Must be found in statute, or congress' "showing of clear and convincing evidence" PRECLUSION MAY BE TOTAL OR PARTIAL (Limiting types, times or places for challenges) Courts can sometimes review matters committed to agency discretion on "abuse of discretion" basis. Issues of "law to apply" Overton Park: Agency had discretion, but the enabling act provided for alternatives, and minimal disruption therefore there was law to apply. Complexity When issues are too technical or complicated, courts may decline to review the actions. Discretion to Take No Agency Action Discretion not to make rule Natural Resource Defense Council, Inc. v SEC D.C. Circuit now believes that agency refusals to make a rule are not entitled to any presumption of non-reviewability. Abuse of discretion. Arbitrary and Capricious Discretion not to take Enforcement Action Heckler v Chaney Death row inmates challenged FDA on lethal injection use of drugs. Court ruled that action was not reviewable under š 701(a)(2) it was committed to agency discretion. Agency's decision not to pursue enforcement not reviewable Changed presumption of reviewability for enforcement actions. Standing From Article III š 2 case and controversy litigants must actually stand to gain or lose something look for mootness, political questions, "stake in outcome" Does the plaintiff have a "legal interest" or "Legally protected right" š 702 APA Data Processing Test Plaintiff must allege the D's acts have caused plaintiff personal injury in fact, economic or otherwise and the P is arguably within the zone of interests to be protected by the statute or constitutional provision in question. Sierra Club v Morton P did not have standing because no allegation that any member of Sierra was injured by the action SCRAP Complaint was framed properly so to allege that students were injured: met both parts of Data Processing. Simon v EKWRO Sued for hospital to lose tax exempt status for refusal to treat indigent patients Didn't get past first prong of Data Processing (injury in fact) Actions by IRS could not have caused P injury Injuries must be directly and plausibly connected to actions of defendant. Valley Forge P claimed that giving surplus property to church related group violate first amendment. Injury must be personal and not one that is suffered by every other citizen. (Taxpayer type suit). Fact that members have an interest in the subject is not enough. Lujan v. National Wildlife Federation Claimed individual members were injured who had visited in vicinity of reclassification. District Court dismissed on Summary Judgment. CA overturned summary judgment. S.Ct. distinguished Lujan from SCRAP. Challenge to SCRAP was 12b6, on the pleadings. Lujan was summary judgment so Court could look beyond the pleadings to the facts of the case. S.Ct. reversed Court of Appeals. "Bare Bones allegations were not sufficient for court to presume the missing allegations of injury. Lujan v. Defenders of Wildlife Challenged action of Foreign Aid to countries who were violating endangered species act. Even though the P's claimed they had visited the areas in the past, and planned to return, the injury was too tenuous. Perhaps if they had alleged that they had tickets to visit at a particular time, the court would have granted standing. Clarke v Securities Industry Association Court added an additional test for P's who survive zone of interest. "...inquiry does not end with the "zone of interest" test.. . . . .because at bottom the reviewability question turns on congressional intent, and all indicators helpful in discerning that intent must be weighed." Air Courier Conference v. American Postal Workers P's challenged regulation permitting private couriers to deliver to foreign postal services. (formerly a monopoly of post office). S.Ct. held that although the P's were in zone of interest, however the relevant statute did not give any protection to the postal workers. Taxpayer Standing Courts have been very reluctant to recognize claims based on status as taxpayers. Flast v. Cohen P's challenged expenditures made from agency to private religious schools. Only status was as taxpayers claiming injury under the establishment clause of First Amend. Two part test (Flast) Connection between status as taxpayers, and the legislation attacked. (spending of money) Connection between their status as taxpayers and the constitutional infringement (absolute prohibition against expenditure of tax dollars, such as Establishment clause, is being violated. Valley Forge P's did not satisfy the Flast test, because the challenged act was not spending of tax dollars, but rather disposition of property. Third party suits Generally, not permissible. However a few exceptions. Bar Owner challenged prohibition of sale of beer to 18 year old men, while women were permitted to purchase. Court ruled on reaching the merits (gender discrimination under Equal Protection Clause). Some Congressional legislation, such as Clean Air Act, permits any person to sue violator or the agency. QUESTION IS UNRESOLVED IF CONGRESS CAN EXTEND ARTICLE III TO THIS EXTENT. Checklist for Review Federal Subject Matter Jurisdiction. Enabling Act or Title 28 standing. Remedy Sought. Immunity Issues. Monetary damages under FTCA or Tucker Act. Injunctive or Declaratory relief OK under APA Preclusion. Are issues properly reviewable under APA. Is there preclusion in statute? Does agency have broad discretion? Standing. Identity of Plaintiff, and has plaintiff suffered an injury in fact. Data Processing test as refined. Judicial Review : Staying in Court Primary Jurisdiction, Exhaustion, Ripeness Primary Jurisdiction Choice between going to agency or to court for conflict resolution. Landmark case Texas and Pacific RR v. Abilene Cotton Oil Company sued in Federal Court over dispute in Railroad tariffs. Court held that the issue must go to ICC for resolution. Once agency has made determination, parties can still go to court at later time. Doctrine essentially does not preclude matters from being heard by court, but defers the timing. Sometimes Court acknowledge that they have jurisdiction, but lack expertise to hear a case that is in bailiwick of agency. U.S. v. Western Pacific (dispute over rates for shipping napalm). Antitrust Allegations Ricci v. Chicago Mercantile Exchange Ricci sued when he lost seat on the exchange. Although the Courts, rather than the agencies, have jurisdiction in Antitrust matters, the primary jurisdiction was to the agency. Courts show great deference to the Agency. Critics accuse the courts of abdicating their powers to the agency. Primary Jurisdictions to Court: Nadar v Allegheny Airlines, Inc. Nadar was bumped from flight. Sued the airline. Even though the CAB had recently established compensation standards for bumped passengers, the court agreed to hear the case. One reason may be that Nadar framed his complaint as an action for fraud. The claim became a tort rather than an issue involving agency action. Final Order Requirement of APA š 704. Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Issues sometimes arise in determining what "final agency action" is. POLICY IS THAT COURTS SHOULD NOT INTERFERE TO TAKE MATTER OUT OF THE AGENCY BEFORE THE AGENCY ACTION IS COMPLETED Ripeness Whether the issue that is presented to the court is sufficiently mature and sufficiently crystallized to be a dispute with which a court can deal. Courts do not like to address technical issues but will address the legal concerns if properly framed. Not if the agencies regulations are technically or scientifically correct, but rather did they follow the proper procedures in order to formulate a reasonable basis for the rule. Landmark Case is Abbott Laboratories v. Gardner Drug Manufacturers challenged the FDA labeling requirements showing the generic name every time the brand name was used. Government argued that since no enforcement action had been taken against any of the parties, the issue was not ripe for review. Court determined the issue was ripe for review and established two-part test. Two Part test for Ripeness Whether the issue presented to the court is fit for review (legal fitness test), and: looks at fitness as legal issue (e.g. ultra vires action) as opposed to technical issue Whether withholding review would impose a substantial hardship on the party seeking review. Party will have to comply with the rule even if it is invalid. Risk of enforcement action and penalties for failure to comply. Exhaustion Exhaustion is the other side of ripeness. Used to prevent premature judicial review and permit agency an opportunity to resolve its cases. In order to deal with an exhaustion order first test for ripeness using two part Abbot test. If no ripeness issues, analyze for exhaustion. Typical Cabinet AgencyTypical Ind. Reg. Commission1. Secretary1. Commissioners2, Asst. Sec.OfficeAdministrationBureauDivisionDivisionSectionSection If case is anywhere below Level 1 there is probably an exhaustion issue. Aggrieved party should be required to pursue remedies within the agency before jumping to court. Factors for exhaustion case law form McKart v U.S. Pro exhaustion factors Letting agency apply its own expertise to matter Respecting the autonomy of agency Preventing review on incomplete record Cutting down on workload of courts, agency should take care of problem at higher level of agency. Factors that mitigate in favor of exhaustion Agency has no power or insufficient power to resolve the issue Agency has already made up its mind (futility) If federal court P would be irreparably harmed by withholding judicial review If attack is against the constitutionality of the entire agency's structure. Judicial Review on the Merits Generally the courts give wide discretion to agencies. Most cases of judicial review succeed only if (1) record is appallingly incomplete (2) some bad evidence (3) ex parte contact has poisoned a case (4) points of view not fully considered (5) drastic change in agency policy not fully explained. Look at Enabling Act : Congress often specifies the terms of judicial review on the merits. Substantial evidence arbitrary and capricious If enabling act is silent, look to š 706 APA Court has the power to decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of terms of an agency action. Power of Court compel agency action unlawfully withheld or unreasonably delayed; [or] hold unlawful and set aside agency action [which is] arbitrary and capricious an abuse of discretion otherwise not in accordance with law [or is] contrary to constitutional right, power, privilege or immunity in excess of statutory jurisdiction, authority or limitations short of statutory right without observation of procedure required by law unsupported by substantial evidence [556 or 557] unwarranted by facts [in de novo proceeding] Overton Park: Roadmap for Judicial Review Enabling Act set standards for secretary to consider. Therefore there was law to apply. Secretary's decision was not completely committed to agency discretion. Was reviewable under APA no preclusion. Review of the Agency Record "Hard look" is the doctrinal standard. Must examine whole record and review both sides. State Farm Court reviewed the entire record, careful scrutiny, held that there was 'no reasonable basis' for the recission of the rules Standard of Review: De Novo, Substantial Evidence, Arbitrary and Capricious De Novo Can be authorized by statute. Two other instances Action is adjudicatory in nature and the agency's fact-finding procedures are inadequate Issues not before the agency raise in a proceeding to enforce nonadjudicatory agency action Rarely does De Novo review occur except if authorized by statute. NOT APPLICABLE TO OVERTON PARK Substantial Evidence In a case subject to sections 556 and 557 of APA or otherwise reviewed on the record of an agency hearing provided by statute. Arbitrary/Capricious The residual or default standard of š 706. If de novo or substantial evidence are not authorized, remaining standard is arbitrary and capricious. Judicial Review of Agency's Factual Determination Questions of Basic Fact Mixed Questions of Law and Fact Questions of 'pure law' De Novo Review Court is free to substitute its judgment for any of the agency's findings and conclusions. Substantial Evidence Review: Only Applies to 556 and 557 'SOMETHING MORE THAN A SCINTILLA Relevant evidence a reasonable mind might use to support a conclusion. Reasonableness "must do more than create a suspicion of the existence of the fact to be established. . .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." While facts submitted to the agency by the ALJ were important, they could be set aside by higher ups in the agency drawing on all the agency's expertise. Arbitrary and Capricious Overton Park "the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment. Most academics disregard the Overton Park definition Usually, agency action will be reversed only is it lacks a rational basis. This is highly deferential to agencies as almost any decision will have some rational basis. Judicial Review of Questions of Law Does the agency's substantive rule have the effect of law. Must court defer to the agencies determination that the agency's own enabling act does not violate the non-delegation doctrine and that its procedures are compatible with constitutional due process. Mixed Questions of Law and Fact Courts have more leeway in addressing these types of issues. e.g. 'is a buyer an employee' NLRB v. Hearst NLRB ruled that newsboys were 'employees' for purposes of collective bargaining. Court of Appeals reversed the agency applying common law principals of respondent superior. Held that newsboys were independent contractors and could not form union. S.Ct. reversed, and held that common law was not dispositive, rather, since it was brand new statute, deference to the agency. Two part test. what criteria did the agency use in interpreting the statute? If the interpretive criteria are consistent with the legislative history of the statute, was the agency's ultimate decision reasonable? Constitutional /Jurisdictional Facts "was the employee acting in course of employment" "was the injury upon the navigable waters of the U.S.?" These types of ultimate facts have to be proved or the agency may lack any jurisdiction. Agency's interpretation of its own statutes No clear position from S.Ct. has had conflicting results. In Public Service Commission of N.Y. v. Mid Louisiana Gas Co, the court over ruled an agency determination regarding definition of "first sale" of natural gas holding that the agencies position was "contrary to the history, structure and basic philosophy of the Natural Gas Policy Act. One year later in Chevron (dealing with how to treat emission standards from multiple facilities on a single plant as a 'single source') court held that EPA's interpretation "represents a reasonable accommodation of manifestly competing interests and is entitled to deference in which a regulatory scheme is technical and complex. Judicial Review of Agency Policymaking Addresses challenges to agencies policy determinations. Landmark case is Chevron Agency implemented "bubble policy" ; all stacks on a single plant can be consolidated to meet the standard. Environmental group challenged the agencies policy . Chevron "two step" test Has Congress spoken to the precise issue at question? If yes, neither the courts nor the agency can interpret contrary to congressional mandate. If Congress is either ambiguous or silent, the reviewing court examines the agency's construction of the statute. The court must defer to the agency's position if it finds it is reasonable. Agency Consistency Agencies are better equipped to deal with the changing circumstances and conditions in society. Agencies have the power to change their positions as the conditions or information may change. However, elements of fairness demand consistency and evenly- applied actions. Change, improperly implemented can do a great deal of harm to members of society. State Farm case is example of agency change of policy that was not based on reasonable standards. "An agency's view of what is in the public interest may change, either with or without a change of circumstances. But an agency changing its course must supply a reasoned analysis." In State Farm all the justices agreed that the agency had provided no reasoned analysis whatsoever for its decision to rescind. Court will permit agencies to modify and rescind rules. But it is equally clear that the changes have to be elaborately and plausibly explained. Synopsis Courts will usually not overturn an agency action If challenge is on facts, little chance of court overturning Mixed question of law and fact, less deference to the agency Facial challenge to enabling act, no deference to the agency. Private Actions Against Government and Government Officials Sovereign Immunity Concept of sovereign immunity nearly absolute. May only be abrogated by Act of Congress. Act must specifically grant right to sue, can't be implied from the context. Congress created two general exceptions FTCA and Tucker Act (Claims and contract disputes against the government) Immunity and Suits against Federal Officers Early case was Ex parte Young (1908). Court permitted suit against state attorney general you was " acting outside the scope of his duties" ultra vires. Larson (1949) If the actions of the officer do not conflict with the terms of his valid statutory authority, then they are actions of the sovereign, whether or not they are tortuous under general law.... Barr v. Matteo Employees sued agency official for defamation for remarks made at press conference. Actions were within the scope of duties. Court extended immunity from "executive officers of cabinet rank" to other agency officials. Privilege of immunity is not a personal privilege of position, but rather an expression of policy designed to aid in the effective functioning of government. Bivens type actions. Suits for constitutional torts. No remedy existed for constitutional violations of unlawful search and seizure. The sanction of suppression not appropriate because no charges were filed. Court held that federal jurisdiction existed for this action, found in common law tort, even though no statute authorized the action. Money damages could be awarded. However, these types of actions are personal actions against the employee and the judgment is not paid by the government. Butz v. Economou; Qualified Immunity P' brought constitutional claim against officials of the Department of Agriculture, including the Secretary Earl Butz. (Claimed first amendment violation of freedom of speech.) Government claimed sovereign immunity. Court held: Immunity is qualified, not absolute. The P must prove malice to overcome immunity. Officials are subject to suit For certain officials, judges, prosecutors, agency attorneys litigating suits, immunity is absolute. Agency actions analogous to judges or prosecutor are absolute immunity. Harlowe v. Fitzgerald Qualified Immunity Suit against officials in Nixon administration for claim of retaliatory firing of federal employee. "Qualified immunity would be defeated if an official knew or should have know that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, or if he took the action with malicious intention to do cause a deprivation of constitutional rights or other injury. . . ." Federal Tort Claims Act (FTCA) Enacted in 1946. Right to bring certain types of tort claims, and for the judgment to be paid by the government. Personal injury or property damage caused by federal employee while he is acting within the scope of his duties. Local tort law is the standard. Employees enjoy absolute immunity. (Not immune from Bivens) No punitive damages or pre-judgment awards Exceptions Not liable when performing discretionary duties (e.g. policy making decisions) limited to ministerial duties. Activities in foreign country collection of tax or duty libel, slander, misrepresentation, deceit or interference with contract Assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process (but not Bivens suits) Where other statutes bar a claim. U.S. v Varig Airlines Claim for negligent safety inspection of 707 was dismissed on basis that agency was performing a discretionary action rather than ministerial. Manufacturer essentially did the safety inspections and engineering and the agency had the ability to review as it thought prudent. No part of the inspection process was mandatory. U.S. v. Gaubert Sued government for negligence in failing to properly supervise a failed S&L. Court held that discretionary acts were not limited to the upper reaches of the agency. Supervising the daily activity of S&L also involved discretionary matters of judgment. The Tucker Act Provides ability to bring suit against government in Court of Claims in D.C. Suits are for claims in excess of $10k. Claims care brought either on the Constitution, or any Act of Congress, or any regulation of an executive department, upon an express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com