Administrative Law Forum

[ph14]

How long do you guys have before the exam? Enough time to order a supplement and read through it or no?

I have about 2 weeks.

[kalvano]

I highly suggest Inside Administrative Law by Beermann. It's $42 on Amazon, or about $26 on Half.

[ph14]

I highly suggest Inside Administrative Law by Beermann. It's $42 on Amazon, or about $26 on Half.

Awesome, thanks for the tip.

[kalvano]

In the meantime, I've been keeping up pretty well with this class, so if you have questions, shoot. It does me good to try and explain stuff.

[beach_terror]

In the meantime, I've been keeping up pretty well with this class, so if you have questions, shoot. It does me good to try and explain stuff.

Did you read Ass'n of Data Processing v. Board of Governors? If so, all it stands for is that A&C and SE are the same thing right? I don't feel like reading it, but I'm pretty sure that's all it stood for.

[kalvano]

In the meantime, I've been keeping up pretty well with this class, so if you have questions, shoot. It does me good to try and explain stuff.

Did you read Ass'n of Data Processing v. Board of Governors? If so, all it stands for is that A&C and SE are the same thing right? I don't feel like reading it, but I'm pretty sure that's all it stood for.

No we didn't, but I don't think that's quite correct.

http://www.casebriefs.com/blog/law/admi ... ve-system/

[beach_terror]

Just to flesh out Ass'n for anyone else if they read it. A&C and SE are the same thing in terms of how they're reviewed by the courts. The key difference with SE and A&C is that SE requires a broader scope of stuff the court has to review, whereas A&C doesn't require nearly as much. It breaks it down further in the context of rulemaking, but I'm not there yet so I can't comment with enough intelligence on it. Scalia writes like an asshole.

[Thedude737]

Would it be right to fit "State Farm" into the Chevron 2 analysis? In other words, once you've established in Chevron 1 that the statute was ambiguous, do courts take a "hard look" in Chevron 2 to determine whether the agency had a permissible construction of the statute? I'm having trouble conceptualizing how these two cases fit together.

[kalvano]

Would it be right to fit "State Farm" into the Chevron 2 analysis? In other words, once you've established in Chevron 1 that the statute was ambiguous, do courts take a "hard look" in Chevron 2 to determine whether the agency had a permissible construction of the statute? I'm having trouble conceptualizing how these two cases fit together.

"Hard Look" is basically another name for judicial review, not necessarily Chevron review. "Hard Look" arises from two competing schools of thought, either the agency is supposed to give a "hard look" at all the facts or courts are supposed to take a "hard look" at the record and see if the agency followed proper procedure and acted in an arbitrary or capricious manner. What "hard look" is supposed to consist of is either procedural or substantive, the Bazelon versus Leventhal debate.

State Farm supports that agencies are permitted to change course and to re-evaluate their policies, but must supply a reasoned analysis of why they have done so (and an agency changing course will likely be looked at harder than an agency supporting long-held position). In conducting judicial review, the court will look at 1) whether the actions of the administrator were within the scope of his authority, 2) whether his decision was within the small range of available choices, 3) if he could have reasonably believed that there were no feasible alternatives, and 4) the actual choice was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law". In so doing, a court should not substitute its judgment for that of the agency.

A better question to ask under Chevron Step 2 is what is the purpose of Step 2? Is the reviewing court testing the reasonableness of the agency's interpretation against Congress's intent? If so, isn't that essentially re-doing Step 1? Or is it a form of "arbitrary and capricious" review under § 706(2)(A)? Isn't that the better choice, as a matter of policy, since you're basically asking if the agency's interpretation is reasonable? In the end, it doesn't really matter since Step 2 is almost always a victory for the agency, but a lot of debate centers on what a court is supposed to be doing in Step 2.

"Hard Look" is a school of thought on overall judicial review, but Chevron is for agency interpretations of statutes.

[Thedude737]

"A better question to ask under Chevron Step 2 is what is the purpose of Step 2? Is the reviewing court testing the reasonableness of the agency's interpretation against Congress's intent? If so, isn't that essentially re-doing Step 1? Or is it a form of "arbitrary and capricious" review under § 706(2)(A)? Isn't that the better choice, as a matter of policy, since you're basically asking if the agency's interpretation is reasonable? In the end, it doesn't really matter since Step 2 is almost always a victory for the agency, but a lot of debate centers on what a court is supposed to be doing in Step 2.

"Hard Look" is a school of thought on overall judicial review, but Chevron is for agency interpretations of statutes."

So there's a clear distinction then between judicial review and agency interpretation of the statute? I'm having a tough time distinguishing between the two concepts because isn't anything an agency does essentially its interpretation of the statute, which courts can review so long as they're not substituting their judgment for that of the agency's?

I understand why the 2nd proposal of Chevron 2 is more desirable. If it the reviewing court is conducting a form of "A and C" review then don't they need to take a "hard look" at that per State Farm? Ah, I think i'm talking my self into freakin circles.

What you're really saying is to just leave State Farm out of Chevron.

[kalvano]

So there's a clear distinction then between judicial review and agency interpretation of the statute?

Chevron / Mead is a framework for judges to review an agency's interpretation of the statute, as a part of judicial review. "Judicial review" covers everything from looking at informal decisions that were issued to formal adjudication to whatever. Chevron isn't really separate from judicial review, it's one component of it.

I'm having a tough time distinguishing between the two concepts because isn't anything an agency does essentially its interpretation of the statute, which courts can review so long as they're not substituting their judgment for that of the agency's?

Not necessarily everything an agency does is an interpretation of their statute. For instance, in State Farm, the agency decision to reverse course on seatbelts wasn't a question of statutory interpretation...no one questioned that it was something the agency had the power to regulate under statute (thus, no question of statutory interpretation), but instead the question was if the agency's action was arbitrary and capricious or was there a rational basis for it. So you wouldn't bust out a Chevron analysis on it. Now, if the question had been "what is the meaning of the term 'safety belt' under the statute"" and the agency interpreted it one way, and a challenge was brought, then you would use Chevron.

I understand why the 2nd proposal of Chevron 2 is more desirable. If it the reviewing court is conducting a form of "A and C" review then don't they need to take a "hard look" at that per State Farm? Ah, I think i'm talking my self into freakin circles.

The problem is no one really knows what Step 2 entails. But if they are conducting a form of A&C review, it's an extremely deferential one and they wouldn't really take a "hard look" at everything.

What you're really saying is to just leave State Farm out of Chevron.

For the most part, yes.

[Thedude737]

So there's a clear distinction then between judicial review and agency interpretation of the statute?

Chevron / Mead is a framework for judges to review an agency's interpretation of the statute, as a part of judicial review. "Judicial review" covers everything from looking at informal decisions that were issued to formal adjudication to whatever. Chevron isn't really separate from judicial review, it's one component of it.

I'm having a tough time distinguishing between the two concepts because isn't anything an agency does essentially its interpretation of the statute, which courts can review so long as they're not substituting their judgment for that of the agency's?

Not necessarily everything an agency does is an interpretation of their statute. For instance, in State Farm, the agency decision to reverse course on seatbelts wasn't a question of statutory interpretation...no one questioned that it was something the agency had the power to regulate under statute (thus, no question of statutory interpretation), but instead the question was if the agency's action was arbitrary and capricious or was there a rational basis for it. So you wouldn't bust out a Chevron analysis on it. Now, if the question had been "what is the meaning of the term 'safety belt' under the statute"" and the agency interpreted it one way, and a challenge was brought, then you would use Chevron.

I understand why the 2nd proposal of Chevron 2 is more desirable. If it the reviewing court is conducting a form of "A and C" review then don't they need to take a "hard look" at that per State Farm? Ah, I think i'm talking my self into freakin circles.

The problem is no one really knows what Step 2 entails. But if they are conducting a form of A&C review, it's an extremely deferential one and they wouldn't really take a "hard look" at everything.

What you're really saying is to just leave State Farm out of Chevron.

For the most part, yes.

That makes perfect sense , thanks! My next question is, how the hell do you reconcile State Farm with Vermont Yankee? Vermont Yankee more or less declared Leventhal victorious over Bazelon in that, courts can't add additional procedures to what the agency does. That being the case, isn't the court adding a procedure in State Farm by determining State Farm needed to consider the air bag alternative?

By the way, I apologize for all these questions. My professor stressed reconciling all these cases with each other a whole lot throughout the semester so I'm assuming its going to be a big part of the exam. Also, I'm taking Legislation and Regulation rather than Administrative Law so my interpretation of cases are within the context of leg reg.

[kalvano]

That makes perfect sense , thanks! My next question is, how the hell do you reconcile State Farm with Vermont Yankee? Vermont Yankee more or less declared Leventhal victorious over Bazelon in that, courts can't add additional procedures to what the agency does. That being the case, isn't the court adding a procedure in State Farm by determining State Farm needed to consider the air bag alternative?

Be careful with wording - Vermont Yankee says no procedure over and above what the statute allows for. However, if the agency itself requires more procedure than what the statute does, then the agency's rules govern.

As for the application to State Farm:

APA 553(c) - "After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose."

Also consider the historical context of VY...courts were imposing all kinds of stuff onto agencies, like requiring oral hearings and depositions and everything else. Requiring reasoned analysis and clarity isn't like that. If you don't consider alternatives, have you engaged in "reasoned analysis" of all the issues?

[Thedude737]

Thanks for the confirmation Sitch!

[deebs]

Anyone have any Admin law practice tests with model answers? All my school has up are tests from the 80's w/o a model answer.

[kalvano]

http://www.crocko.com/F8921DF076CF45AE8 ... in_Law.zip


Admin Law. The (a) are questions, the (b) are the answers.

I don't remember what school they are from, but Admin Law is Admin Law, so it should work for the most part.

[beach_terror]

Anyone else feel like their class focuses on the law but not on when/in what order to apply it. I'm going over the Portland Cement Doctrine and stuff like that in the context of rulemaking, but if I get a question, I feel like I have no idea where to include a lot of this stuff. I get that you do formal/informal, then after that I'm like LOLQUE? Maybe it'll crystallize soon, but as of now, I'm failing to see how to attack exam answers with the information I have.

[Thedude737]

Anyone else feel like their class focuses on the law but not on when/in what order to apply it. I'm going over the Portland Cement Doctrine and stuff like that in the context of rulemaking, but if I get a question, I feel like I have no idea where to include a lot of this stuff. I get that you do formal/informal, then after that I'm like LOLQUE? Maybe it'll crystallize soon, but as of now, I'm failing to see how to attack exam answers with the information I have.

I certainly sympathize with you. I'm really worried about applying all this stuff on an exam.

[cjw55]

Anyone else feel like their class focuses on the law but not on when/in what order to apply it. I'm going over the Portland Cement Doctrine and stuff like that in the context of rulemaking, but if I get a question, I feel like I have no idea where to include a lot of this stuff. I get that you do formal/informal, then after that I'm like LOLQUE? Maybe it'll crystallize soon, but as of now, I'm failing to see how to attack exam answers with the information I have.

Have had similar concerns in my Admin Class w/ the Gellhorn & Byse textbook. It took me a while but I have tried to organize issues in the following manner (feel free to comment/critique):

Separation of Powers
non-delegation, removal, appointment, adjudicatory powers, etc
Judicial Review Part A
scope of judicial review (what is reviewable or not)
timing of judicial review
standing
Claims on the Merits
Agency action via correct form/mode?
Did agency follow correct procedure for chosen form?
Due Process
Ex parte contacts?
Judicial Review Part B
judicial review of agency fact finding
judicial review of agency legal conclusions

This is obviously a very simplistic way that I chose to organize things. Would be curious to hear what other people have done/think about above.

The form of this post doesn't come out well, but the Main categories I've organized around are: 1) Sep of Powers 2) Judic Review Part A, 3) Claims on the Merits and 4) Judicial Review Part B...with everything else sub-categories of those 4. Thoughts?

[Thedude737]

Thanks for ALL your help Kalvano, you have been an absolute life saver!

[kalvano]

The form of this post doesn't come out well, but the Main categories I've organized around are: 1) Sep of Powers 2) Judic Review Part A, 3) Claims on the Merits and 4) Judicial Review Part B...with everything else sub-categories of those 4. Thoughts?

Mine is organized as -

1) Control of Agencies (Separation of powers, hiring, firing, OMB/OIRA)
2) Judicial Review (Reviewability, questions of fact / law, Chevron, Hard Look)
3) Rulemaking (Formal, informal, retroactivity, due process)

I went with the broad stuff first, because a lot of that is Constitutional stuff (especially appointment and removal), and if you're challenging a rule, the best way to win is a Constitutional challenge. So I started there.

I should be done with my outline tonight, I'll be happy to share. Fair warning, it won't be too short. I've found it damn near impossible for this class to do a 5-10 page exam outline, so I just incorporated exam checklists into it. Should be around 25-30 pages.

[ph14]

The form of this post doesn't come out well, but the Main categories I've organized around are: 1) Sep of Powers 2) Judic Review Part A, 3) Claims on the Merits and 4) Judicial Review Part B...with everything else sub-categories of those 4. Thoughts?

Mine is organized as -

1) Control of Agencies (Separation of powers, hiring, firing, OMB/OIRA)
2) Judicial Review (Reviewability, questions of fact / law, Chevron, Hard Look)
3) Rulemaking (Formal, informal, retroactivity, due process)

I went with the broad stuff first, because a lot of that is Constitutional stuff (especially appointment and removal), and if you're challenging a rule, the best way to win is a Constitutional challenge. So I started there.

I should be done with my outline tonight, I'll be happy to share. Fair warning, it won't be too short. I've found it damn near impossible for this class to do a 5-10 page exam outline, so I just incorporated exam checklists into it. Should be around 25-30 pages.

I would love to get a look at as well. Did you not cover APA adjudication though?

[kalvano]

The form of this post doesn't come out well, but the Main categories I've organized around are: 1) Sep of Powers 2) Judic Review Part A, 3) Claims on the Merits and 4) Judicial Review Part B...with everything else sub-categories of those 4. Thoughts?

Mine is organized as -

1) Control of Agencies (Separation of powers, hiring, firing, OMB/OIRA)
2) Judicial Review (Reviewability, questions of fact / law, Chevron, Hard Look)
3) Rulemaking (Formal, informal, retroactivity, due process)

I went with the broad stuff first, because a lot of that is Constitutional stuff (especially appointment and removal), and if you're challenging a rule, the best way to win is a Constitutional challenge. So I started there.

I should be done with my outline tonight, I'll be happy to share. Fair warning, it won't be too short. I've found it damn near impossible for this class to do a 5-10 page exam outline, so I just incorporated exam checklists into it. Should be around 25-30 pages.

I would love to get a look at as well. Did you not cover APA adjudication though?

You mean like Article III courts versus agencies?

[ph14]

The form of this post doesn't come out well, but the Main categories I've organized around are: 1) Sep of Powers 2) Judic Review Part A, 3) Claims on the Merits and 4) Judicial Review Part B...with everything else sub-categories of those 4. Thoughts?

Mine is organized as -

1) Control of Agencies (Separation of powers, hiring, firing, OMB/OIRA)
2) Judicial Review (Reviewability, questions of fact / law, Chevron, Hard Look)
3) Rulemaking (Formal, informal, retroactivity, due process)

I went with the broad stuff first, because a lot of that is Constitutional stuff (especially appointment and removal), and if you're challenging a rule, the best way to win is a Constitutional challenge. So I started there.

I should be done with my outline tonight, I'll be happy to share. Fair warning, it won't be too short. I've found it damn near impossible for this class to do a 5-10 page exam outline, so I just incorporated exam checklists into it. Should be around 25-30 pages.

I would love to get a look at as well. Did you not cover APA adjudication though?

You mean like Article III courts versus agencies?

Nah. We cover adjudication although very briefly. Stuff like informal adjudication vs. formal adjudication.

[kalvano]

Nah. We cover adjudication although very briefly. Stuff like informal adjudication vs. formal adjudication.

Oh, you mean like 553 and 5567 & 557? Yeah, we covered all that. It'll be on there under rulemaking.

To me, at least when I organize, even though the names are the same, I have to separate out adjudication in terms of rulemaking and adjudication in terms of hearings and judicial review. Part of my confusion at the beginning of the year was trying to figure out what the prof meant when he referred to adjudication.

Also, aren't you a 1L? How are you in Admin Law?