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Chapter 7
Part II
Cabining Arbitrary and Capricious Review
Old definitionHighly deferential to the agencySame as rational relationship test in constitutional lawCitizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)Added the notion of looking at the administrative record before the agency‘‘a substantial inquiry,’’ ‘‘a thorough, probing, in-depth review, and [a] searching and careful [inquiry into the facts].’
When Should the Court Allow the Record to be Supplemented by the Agency?
This would result in de novo review of the new materialLike a trial transcript on appeal, the record is usuallyclosed.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.The court can allow the new material and give the agency a chance to supplement its record inresponse.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.The court can ask the agency to appoint an ALJ to take evidence and present it to the court - RARE
"Hard Look" -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.
Hard Look at What?
The courts cannot use hard look to change the underlying requirement that they defer to agency decisionmaking on facts and policy.Hard look analysis requires agencies to make sure that the record for the case provides a clear basis for theirfactfindingand their policy decisions.The federal court cannot change the decision, but it can require the agency to provide better support for its decisions.
Motor Vehicle Manufacturers v State Farm Mutual Auto, 463 U.S. 29 (1983)
Who are the real parties at interest?What are these parties in the case?DOT had previously justified the need for a rule on seatbelts.Now DOT wants to rescind that rule.Why is a rescission subject to the same record requirements as the promulgation of a rule?Why does rescission so soon after the promulgation of the rule undermine deference arguments?
NRDC, Inc. v. Herrington, 768 F.2d 1355 (D.C. Cir. 1985)
Post 1973 oil embargo, Congress wanted national standards that would improve energy efficiency.DOE was given the power to set a standard for appliance efficiency that preempts state standards.A federal standard would block stricter state standards so that there would be a national market.Congress also allowed the agency to find that no standard was necessary, which also triggered preemption.
Procedure for a Binding Non-Rule
DOE publishes the support for its conclusion that there should not be a rule.This standard did not includean analysis of the environmental impact of not having the standard.The NRDC challenges the failure to publishthis analysis.Must the agency provide State Farm support for not making a rule?Why is this different denying a petition for rulemaking?
American Dental Assn. v. Martin, 984 F.2d 823 (7th Cir. 1993)
OSHA bloodbornepathogens ruleRequiresuniversal precautionsin all health care workplacesThese include gloves, sharps management, eye protection, and other controls to reduce exposure to bloodDentistscharge that the agency did not show specific risks in dentistry and thus the rule was arbitrary and capriciousWerethey right?
What is the Agency Promises to Not Enforce a Rule?
The bloodborne pathogens rule required employers to control exposurein theworkplacesIn all health care workplaces except home health, the employer had control over the employeeHome health agencies said they could not comply with the rule because they did not have enough controlOSHA says it will not enforce the rule against them.Is this enough to save the rule from being arbitrary and capricious for home health?
Challenging Agency Action - Review
First, you have to show it is a final agency actionRulesOrdersEverything elseThen you argue about standard of reviewThe more agency process, the more deferenceUnless the statute or congressional intent conflicts with the agency action or interpretation
De Novo Review Under the APA
Section 706(2)(F) provides for setting aside agency action found to be “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”Overton Park- such de novo review is authorized when the action is adjudicatory in nature and the agencyfactfindingproceduresare inadequateAbsent bad faith, the court never finds thisIn real life, you only get de novo rule by statute
Forcing Agencies to Act
Section 706(1) provides that a court is to compel agency action unlawfully withheld or unreasonably delayed.Sometimes the court will find that there has been too much delay, such as in OSHA's decade long refusal to address drinking water standards for workersCourts recognize that agencies have limited resourcesUsually you have to have a statutory deadline or other limit on discretion to force agency action
28 U.S.C.A. § 2401 Time for commencing action against United States
(a) Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.6 years, unless the enabling statute sets a shorter timeframe.Remember the question of issue preclusion – must you (or someone else) have raised issues – other than constitutionality or acting beyond statutory authority – during the rulemaking?Does the SOL matter if you are attacking agency’s legal authority?
Attacking a Rule after the Deadline
Once the deadline for attacking the substance of a rule has passed, you cannot attack the rule directly.(Constitutional and ultra vires attacks aside)You are entitled to an answer on a petition requesting a rulemaking or the amendment of a ruleIf the agency gives you an unsatisfactory answer, you can litigate that –Mass v. EPAThis can be a way to air the issues in court
Judicial Remedies for Improper Rules
Remand but leave the rule in forceCannot do this for unconstitutional rules or rules that exceed agency authorityWhat is the impact of staying the rule?Pulling a diabetes drug off the market?Remand and stay the ruleWill wild animals escape?Will there be risks?Is the court defeating agency policy making?
Relying on Agency Advice - Equitable Estoppel
You cannot get money damages - no appropriationsNot under the tort claims actIt is a defense to criminal claimsCan be a defense to civil enforcement finesHow did you get the advice?IRS letter ruling v. advice over the phone?Relying on an agency mistake that you know about or an agency failure to enforce a law does not work.
Collateral Estoppel - Relying on Previous Court Decisions
Same facts, same partiesGovernment is boundSame facts, different partiesGovernment is not boundWhat if they are close?Fred loses on a FOIA claim, gets his friend Taylor to ask for the same document10 Cir says close enough, estoppelUnited States Supreme Court says no exception to identity of the parties for virtual representation - no estoppelTaylor v. Sturgell, 128 S. Ct. 2161 (2008)
The government canrelitigatethe same facts (different parties) in different circuits to get better resultsOr to get a split to get United States Supreme Court reviewIntra-circuit non-acquiesce is more controversialAgency loses in the circuit in a specific case, but continues to apply the same law to other partiesHow would you argue that you are not bound by the earlier determination?





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