Administrative Law Exam Blog - Fall 2004

18 Jan 2005

Key to exam

7 Dec 2004

> 1) What is the judicial standard for reviewing factual
> determinations?

> We initially thought it was clearly erroneous or substantial evidence.
> Tonight, however, someone else insisted it depended on what
> Congress says is the standard and if Congress is silent,
> courts use the arbitrary and capricious standard.

Remember, Congress sets the ground rules, within the constraints of the constitution. So with review of agency fact finding, Congress can set the standard of review anywhere from no review at all - smallpox vaccine compensation decisions - to de novo review. So you first look to the enabling act. If it is silent, then the court will use the arbitrary and capricious standard, which, in real life, is about the same as the clearly erroneous/substantial evidence standard.

> 2) How does one request a hearing for notice and comment? We were
> looking in APA 552 and 553 and couldn't reach a "final answer."

Are you sure you can request a hearing at all?:-)

5 Dec 2004

General note, not for the exam. In response to a question, I have been looking at the gag rule discussed in Rust v. Sullivan and briefly discussed in class. I thought it has been reinstated by Bush II when he took office, but I cannot find any record of it. it looks like Clinton abolished it in a notice and comment rule and Bush has not reinstated it with another rule. He did reinstate the global gag rule, which bans foreign aid to groups that support abortion.

4 Dec 2004

> I don't get why FDA v Brown trumped Chevron - if there was
> overwhelming
> evidence Congress did not intend for the FDA to regulate tobacco, why
> didn't this fall under step 1 of Chevron? Was it because the
> overwhelming evidence wasn't in the statute itself? Or am I
> completely missing the point?

It does not trump Chevron, but it does require both steps because the statute itself did not resolve the question. The statute said that the FDA could regulate anything that was sold to affect the structure or function of the body, and tobacco certainly met the plain language reading of the statute, i.e., under step one the statute did not clearly prohibit the agency's action. Under Breyer's reading in this case (and the usual Scalia reading), that would be the end of it and the FDA would get to regulate tobacco. But Scalia and the major went to step 2 because for many years the agency said that it could not regulate tobacco, and when the agency changes a long standing interpretation, the court will look to see the reasons. There was also long standing legislative history that Congress did not want the FDA to regulate tobacco, including having the BATF regulate tobacco. So the majority said that while the plain language of the statute does not prohibit regulating tobacco, that is not a reasonable reading of the statute because of the other legal factors indicating that Congress did not want the agency to regulate tobacco.

[follow up]

> So correct me if I'm wrong:
>
> After FDA, the court will look to the context of the statute
> and extra-statutory evidence to determine if Congress really
> intended for the agency to regulate some particular area,
> even if the plain language of the state (like in FDA) allows
> the agency that regulation.

No, what FDA reminds us is that the Chevron inquiry can be more complex that just looking at the words of the law. This happens when there is significant evidence that the interpretation of the law is at odds with other evidence of the allowable agency action. The real difference is that Chevron was a case about a new interpretation that did not conflict with anything - it was being judged on its own against the language of the (then pretty new) statute. In contrast, the FDA case came after more than 50 years of the FDA reading the same law as not allowing it to regulate tobacco, and in the face of there being an existing tobacco regulatory system in another agency.

> I have that Chevron is still
> controlling for formal rulemaking and adjudication (unless
> there is significant evidence of Congressional intent outside
> the specific statute at issue), but in practice the court
> will look to the entire context of the statute.

Chevron is never really controlling, it is just an analysis tool the courts use.

> What's the
> basic system here? When will the court stop at step 1, or
> continue no? Is this largely political, as seen in the
> flip-flop of usual interpretations in FDA?

When there is a lot of extrinsic evidence that contradicts the agency's interpretation, especially past actions of the agency, the court has to make a political decision as to whether they want to look at the information. In most cases they will look, and will decide how persuasive the agency's view is. I think the FDA case was rightly decided - Congress clearly did not intend for the FDA to regulate tobacco and until that point in time, the FDA agreed. Yet to reach the decision Scalia had to switch roles with Breyer because both of them had staked out extreme positions on extrinsic evidence.

Remember, Chevron is about questions of law, and the court is always the final arbiter of legal questions. To the extent that rulemaking and adjudications are deciding facts, Chevron does not apply.

2 Dec 2004

Legislative facts are established through rulemaking or by the legislature passing a law. Look at Heckler v. Campbell and the cases following it. If the regulations are properly promulgated, the legislative facts cannot be attacked in later proceedings. Adjudicative facts are facts that are put in the record as part of a specific adjudication and they must be proven in each adjudication. So in Heckler v. Campbell the agency set up standards which saved it the trouble of proving occupational standards in each adjudication.

30 Nov 2004

See Paragraph 49 of Camara:

> 2) Is there a self-incrimination defense to an
> administrative subpoena?
> I think there isn't such a defense if you were required to
> keep the records by law. But I'm not sure when you might be
> able to use such a defense.

Self-incrimination is about you testifying, not about your stuff or your premises. The question would be whether the materials were properly obtained with an administrative warrant. If you are required to keep the records for administrative purposes, then it is proper to get them with an administrative warrant. If the evidence is not related to a valid administrative search, such as using a fire inspection as a pretext to get your gun when there was no probable cause to support a criminal warrant, I think (and you should think) that is a problem and it would not be admissible. (Some in the FDA and DOJ disagree, but that is beyond the scope of this course.)

29 Nov 2004

> I am unsure of when exactly the President can fire an agency
> head and an officer--for independant agencies and for
> executive agencies.

What makes an independent agency independent, i.e., different from an executive branch agency, is the limitations on the president's power to replace the agency head. Executive branch agencies have a single head, who usually sits in the president's cabinet. The president can replace them at will, as we are seeing now with the reorganization of the Bush cabinet. The president may appoint whoever he wants to head the agency, but they must be confirmed by the senate.

Independent agencies are headed by either a single person or a commission with several members. In either case, the head/commissioners have fixed terms and may only be removed for cause during their term. In some agencies there are also qualifications for the persons being appointed when a term expires, which the president must follow. The appointments have to be confirmed by the senate.

23 Nov 2004

We did not cover St. Marks Baths this term, so you will not be responsible for it, despite what the notes might say. It is an interesting case about closing gay bathhouses if you want to read it.