Administrative Law Prof Blog

Ultra vires

For reasons arising from a previous life, I find interesting cases where agencies go wandering about making decisions beyond their authority. Dean Patty Salkin (Albany) has a nice little example on her Law of the Land blog, "Ohio Appeals Court Finds Zoning Board Lacked Authority to Revoke Conditional Use Permit".

Kearns constructed a bed and breakfast but received negative responses from neighbors.  As a result of the neighborhood response, the Zoning Inspector notified Kearns that his bed and breakfast was located in an area zoned Farm Residence. Kearns applied for and received a conditional use permit. Again, after complaints for neighbors and a hearing for which Kearns failed to show, the Zoning Board of Appeals revoked his conditional use permit.  Kearns appealed.

On appeal, Kearns argued that the trial court erred when it found that defendant Board of Zoning Appeals had the power to revoke his conditional use certificate. The Court looked at the two relevant statutory provisions and determined that the Board lacked jurisdiction to revoke the permit.  The Board in turn argued that they followed the Rules of the Township Zoning Board of Appeals, which gave them the power to revoke the permit.  The Court disagreed and held that even if the Board followed their own rules, they did not have the authority to create rules that add powers to the scope of their authority.  The matter was remanded to the trial court for judgment in Kearn’s favor.

It's not that unusual for a board or agency to have the power to grant something but not the power to revoke what it granted. Sometimes it takes a higher level of authority to revoke. You have to look at the enabling statutes to see what powers the agency actually has, as distinguish from what it thinks it has. EMM

Equity FAIL

In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

New York City Administrative Code §13-182 (emphasis added). According to Mr. Randall,

Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence : as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

I'm sorry but your client is, ummmm, going to be disappointed. EMM

Policy: Retrospective evaluation of regulatory effectiveness

From RegBlog, "Federal Regulations: Let's Review the Rules" by Cary Coglianese (Penn). Opening:

The current spending battles in Washington reveal the deep fault lines between the political parties over the size and role of the federal government. ...

When it comes to regulation, though, there is something on which Democrats and Republicans agree. Since the early 1980s, both parties have broadly supported "regulatory impact analysis," a technique used by federal agencies, such as the Environmental Protection Agency or the Department of Transportation, to predict the benefits and costs of new, binding regulations before they adopt them. ...

However, as important as it is for federal agencies to look before they leap, it is equally important that they also conduct analysis that's retrospective. ...

At least part of today's partisan divide over regulation could be bridged by creating credible practices for retrospective evaluation. Just as agencies are currently expected to make their best predictions about the costs and benefits of major regulatory proposals, they could also be expected to inquire after the fact about each such regulation they adopt: How much positive value has society reaped from it? How much did it cost in dollars or jobs? Was there a more effective way of doing it?

EMM

Deference to agency interpretation - Texas

From The Energy Law Blog, "Supreme Court of Texas Reverses Appeals Court in Oil and Gas Waste Injection Well Permitting Case" by Carlos J. Moreno:

In Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, No. 08-0497, 2011 WL 836827 (Tex. Mar. 11, 2011), the Supreme Court of Texas reversed the Austin Court of Appeal’s finding that the Railroad Commission (the “Commission”) has to consider broad public safety concerns in the permitting of proposed oil and gas waste injection wells. ...

Before the Commission can grant an injection well permit, the Texas Injection Well Act requires it to find that the use or installation of the injection well is in the public interest.  At the administrative hearing, a group of residents living near the well (“Texas Citizens”) expressed concern about the large trucks hauling fracing waste water and whether the trucks would damage nearby roads. The Commission concluded that it had no jurisdiction to regulate traffic, and granted the injection well permit after finding that doing so would be in the public interest. Subsequently, Texas Citizens challenged the Commission’s findings in state court, arguing in part that the Commission should have considered traffic safety concerns in its public interest inquiry. The trial court found in favor of the Commission, but the appeals court reversed. The court of appeals found that the Commission had abused its discretion in interpreting the public interest inquiry too narrowly. The Commission and the proposed injection well operator appealed to the Supreme Court of Texas.

The supreme court framed the issue as a statutory construction inquiry. The court evaluated whether the commission’s interpretation of the public interest inquiry, as including only matters related to oil and gas production, should be given judicial deference. Looking at Texas case law, the court found that the Commission’s interpretation of the “public interest” language should be given “serious consideration” if the construction is reasonable and does not contradict the plain language of the statute. ...

Other factors considered by the Court included different language in this statute compared with other types of injection wells, the lack of any limits at all on the term "public interest" as interpreted by the appellants, and legislative silence on the Commission's interpretation over a long time. EMM

 

Agency takes administrative shortcut = problem

When an agency tries to take a shortcut or change its mind after a decision, it can raise all sorts of problems. Dean Patty Salkin (Albany) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog:

The tobacco warehouse, which has been on the National Register since 1974, is located in Empire Fulton Ferry State Park. In 2001, the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP) received funding from the National Park Service (NPS) for a cove restoration project in the park, and included the tobacco warehouse in the boundary map. The grant was authorized under Section 6(f)(3) of the Land and Water Conservation Fund Act, 16 U.S.C. § 4601-8(f)(3), which requires that “once an area has been funded with L&WCF assistance, it [must be] continually maintained in public recreation use unless NPS approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value.” ...

In 2008, after the project had been completed and administratively closed, OPRHP asked NPS to amend the project boundary map to exclude the tobacco warehouse, explaining that “these former warehouse buildings are not suitable for nor used by the public for outdoor recreational opportunities in the park….” Because the grant program was not intended to provide assistance for indoor recreational use, NPS agreed that it should not have included the buildings within the project boundaries and approved the revised project map.

The amended map was later attached to a conveyance of the property to the Brooklyn Bridge Park Corporation, which intended to include it in a larger park covering 85 acres of Brooklyn waterfront. In 2010, BBPC approved St. Ann’s Warehouse’s application to rehabilitate the tobacco warehouse as a performance space and outdoor garden. The project would preserve the walls of the historic structure, but add a roof for the theater.

At this point, the Brooklyn Heights Association raised concerns that construction would damage the historic structure, and it requested that NPS reverse its decision to exclude the tobacco warehouse from the LWCFA project map. NPS, treating this request as a “informal appeal,” issued a final decision in February, 2011, upholding the map amendment. Although NPS recognized that it did not follow its regulations for substituting reasonably equivalent property for the parcels removed from the project boundary, it considered the change to be a “technical correction” that was exempted from these procedures. BHA then filed for a preliminary injunction to prevent the theater project from going forward. ...

[Discussion of equitable issues for injunction.]

More importantly, neither the LWCFA nor NPS’s regulations included any provision for “’technical correction’ procedure self-originated and employed by NPS here, even given…a deferential treatment of NPS’s interpretations of these provisions.” To the contrary, “Any change to the 6(f)(3) boundary after the close of an LWCF grant — regardless whether that change is referred to as a ‘revision’ or ‘correction’ — triggers the conversion process and requires the full consideration of alternatives and, if needed, the substitution of a replacement property.” NPS’s “last gasp argument”—that it had an inherent residual power to reconsider its action—was also rejected by the court.

An agency has to follow its own rules. It can change those rules, but it needs to follow the rules for changing rules. Shortcuts create problems. EMM

Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in the post linked above, the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?

EMM

Allegation of de facto rulemaking at the Federal level

Two weeks ago we posted about a California case concerning "underground" or "de facto" regulation. This week, U.S. LAW WEEK reviews a similar matter at the Federal level in "House Members Condemn EPA Guidance On Water Act Jurisdiction as ‘De Facto Rule'", 79 U.S.L.W. 2426 (Apr. 26, 2011), by Linda Roeder. (The link will only work if you have an online subscription to U.S.L.W.)

Nearly 40 percent of the House is urging the Environmental Protection Agency and the U.S. Army Corps of Engineers to reconsider their plan to issue guidance clarifying what water bodies are subject to the Clean Water Act, saying it would expand the scope of the statute and amount to a “de facto” rule. ...

In the proposed version of the guidance submitted for review in December 2010 (79 U.S.L.W. 1880) to the White House Office of Management and Budget, EPA said a wider range of water bodies would be subject to Clean Water Act jurisdiction than under guidance issued by EPA and the Army Corps of Engineers in 2007 (76 U.S.L.W. 2249) and 2008 (77 U.S.L.W. 2346). ...

The proposed guidance is intended to clarify which waters are subject to Clean Water Act jurisdiction and how two U.S. Supreme Court decisions on jurisdiction should be implemented — Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715, 74 U.S.L.W. 4365 (2006). ...

The representatives said they view the guidance as going beyond the scope of the Clean Water Act and significantly increasing the scope of the statute's jurisdiction over U.S. waters “as even the Agencies acknowledge.”

The guidance would substantially change policy on the waters subject to jurisdiction under the Clean Water Act, the letter said. In addition, it said the guidance would undermine the regulated entities' rights and obligations and would erode the state-federal partnership. The letter said the agencies have failed to consult with states and have ignored requests from states, environmental groups, and others to proceed under normal rulemaking procedures.

“In light of the substantive changes in policy that the administration is considering with this ‘guidance,' we are extremely concerned that this ‘guidance' amounts to a de facto rule instead of mere advisory guidelines,” the lawmakers wrote.

“Additionally, we fear that this ‘guidance' is an attempt to short-circuit the process for changing agency policy and the scope of the Clean Water Act jurisdiction without following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act.”

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Gaunt, Ian. Note. Information or organization: administrative regulation and the FDA's new approach to cigarettes. 9 Geo. J.L. & Pub. Pol'y 217-243 (2011). [H]|[L]|[W]
• Note. How Chevron step one limits permissible agency interpretations: Brand X and the FCC's broadband reclassification. (National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 2005.) 124 Harv. L. Rev. 1016-1035 (2011). [H]|[L]|[W]
• Note. OIRA avoidance. 124 Harv. L. Rev. 994-1015 (2011). [H]|[L]|[W]

EMM

New admin law articles

From the University of Washington's Current Index to Legal Periodicals:

• Bisom-Rapp, Susan. Puzzling evidence from a troubled time: rethinking state promotion of safe work during the Bush Administration. 14 Employee Rts. & Emp. Pol'y J. 295-323 (2010). [H]|[L]|[W]
• Mason, Josephine K. Note. The un-creation of rights: an argument against administrative disclaimers. 62 Hastings L.J. 559-596 (2010). [H]|[L]|[W]

EMM

Do you have standing?

If you perceive that your client is being shafted by regulations or regulatory statutes, one preliminary hoop through which you must jump is whether your client has standing to sue. Civil procedure question, you say? Well, it has some peculiar wrinkles in the context of administrative law. Compare Dearth v. Holder, No. 10-5062 (D.C. Cir., April 15, 2011) (discussed in "Plaintiff Has Standing to Challenge Ban on Gun Buying by Americans Who Live Outside the U.S.", The Volokh Conspiracy) with Viropharma, Inc. v. Hamburg, No. 10-1529 (D.D.C., April 15, 2011) (discussed in "ViroPharma’s Preemptive Strike Over Generic VANCOCIN Fails; District Court Grants FDA’s Motion to Dismiss", FDA Law Blog).

ViroPharma was trying to slow down generic competition to its "franchise" drug, the antibiotic Vancocin (vancomycin). It claimed that the FDA had changed its regulations without notice and comment in violation of the ADA by allowing manufacturers that wanted to make generics to skip requirements that were specified in its regs. The Court never got to the substance of this claim, because ViroPharma could not show that the change caused or would cause any injury.

Because ViroPharma has not demonstrated that it is “substantially probable” that the 2008 acarbose petition response will result in future lost profits to the company, nor that it is currently suffering from a concrete, particularized harm that is traceable to the acarbose petition response, it has failed to satisfy the “irreducible constitutional minimum of standing.” ...

Slip opinion at 11. The opinion is only eleven pages and not hard to follow. Basicly, ViroPharma was asserting that because of the change in regulations it had to prepare to change its business practices. Not only did the Court see this as speculative, but it saw no causal connection between the change in regulations (if any) and the injuries that ViroPharma was complaining about.

Furthermore, ViroPharma has failed to demonstrate a causal connection between FDA’s actions and the changes the company has made to its business practices. While [ViroPharma' CEO] variously claims that the FDA’s actions “required” or “forced” ViroPharma to take certain steps ... plaintiff fails to explain how these changes were in fact required or mandated by the FDA. In reality, nearly all of the “harms” complained of by [ViroPharma's CEO] represent actions that ViroPharma elected to take in response to its own predictions about what the FDA may do in the future, presumably in order to better position itself should these predictions prove accurate.  Perhaps these steps will prove to be wise business decisions. Perhaps they will not. Either way, they are not “harms” that can be said to have been caused by the FDA.

Slip opinion at 9-10 (emphasis in original).

Mr. Dearth was in a different position. He is a U.S. citizen living in Canada with no U.S. address. Statutes controlling firearms purchases and implementing ATF regulations prohibit sales if the seller knows or has reason to know that the purchaser does not reside in the same state as the seller's place of business. Catch-22. He tried twice. The Government argued that his injury (if any) was speculative, but the Court determined that he showed a strong likelyhood that he is going to come back to the U.S. and try to buy a firearm. As Professor Volokh points out, "The court concluded that the government’s denial of Dearth’s past applications to buy a gun, coupled with his intent to come to the U.S. again soon, means that he has the sufficiently particularized, nonconjectural interest that entitles him to standing to challenge the law."

Dearth v. Holder is also a quick read, only seven pages of text clearly written. EMM

SCOTUS: Federal law does not preclude one state agency from suing another

From SCOTUSblog, "Details on today’s opinion":

This morning, the Court issued its opinion in Virginia Office for Protection and Advocacy v. Stewart. ...

...(No. 09-529):  By a vote of six to two, the Court reversed the decision of the Fourth Circuit. The Court held that its decision in Ex Parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state. ... 

EMM

Policy: Stevenson and Wagoner on debarring corrupt contractors

New on SSRN: FCPA Sanctions: Too Big to Debar? Drury D. Stevenson (South Texas) and Nicholas J. Wagoner (South Texas). Abstract:

The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials; the frequency of enforcement actions and severity of fines levied against corporations under the FCPA have significantly increased in the last few years. There is an ongoing problem, however, with the sanctions for FCPA violations: enforcement authorities (DOJ and SEC) and contracting officials have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators. Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute. Debarment offers a far more potent deterrent than fines and penalties, as multinational contractors that conduct business with the U.S. are much less likely to view the sanction as merely a cost of doing business. If ridding foreign markets of corruption truly is a top priority of the U.S., it seems both unfair and imprudent for federal agencies to continue awarding lucrative, multibillion-dollar contracts to firms recently prosecuted for fraudulently obtaining such contracts overseas.

Enforcement officials shy away from debarring entities that violate the FCPA due to the short-term inconvenience of an agency’s inability to transact business with its favorite contractor, its inability to demand favorable bids from contractors when the field of potential bidders has thinned, the resulting job loss, and the risk of overdeterring companies that might otherwise pursue lucrative opportunities in emerging markets. This is the "too big to debar" problem – the federal government is too dependent on a particular set of large, private-sector corporations for equipment and services. In addition to the virtual immunity from debarment enjoyed by these firms when they violate the FCPA, the fines imposed for engaging in foreign corrupt practices comprise a tiny fraction of the potential revenue generated by lucrative contracts with the U.S. and foreign states. When discounted by the low probability of detection, these sanctions are far too low to deter unlawful activity.

Debarment would deter potential wrongdoers and incapacitate actual offenders. The deterrent would induce more firms to comply with the law, which would allow the “too big to debar” problem to diminish over time. To help illuminate these concerns and lend support to the thesis, this Article will examine the third largest FCPA-related enforcement action to date: the BAE Systems case. On March 1, 2010, BAE Systems paid approximately $400 million in fines for its corrupt practices abroad. In the 365 days that followed however, the federal government awarded BAE contracts in excess of $58 billion dollars. The U.S.’s refusal to debar BAE because of the potential “collateral consequences” provides a case study on the benefits and drawbacks of deterring foreign corruption through suspension and debarment. This Article concludes that the U.S. must begin to diversify its portfolio of federal contractors so that prosecutors may leverage the legitimate threat of suspension and debarment to more effectively deter foreign corruption.

Personally, I tend to believe that "too big to debar" or "too big to fail" is just "too big". EMM

Commercial speech and the regulatory process

It's seamless web time again. The issue of how much First Amendment protection should be given to commercial speech arises in several administrative law contexts, including billboards and election signs, inter alia. One context that has been heavily litigated is FDA restrictions on product health claims. In "To Disclaim or Ban Outright – 'Credible Evidence' for Health Claims" on the FDA Law Blog,

After more than fifteen years of related cases in the larger matter of The First Amendment v. Dietary Supplement Health Claims, FDA mostly won one. And its winning card? Knowing that the courts will not, and cannot, independently assess whether the scientific evidence provided to FDA to support a health claim for a dietary supplement constitutes “credible evidence.” So, FDA drafted Guidance for Industry: Evidence-Based Review System for the Scientific Evaluation of Health Claims (Jan. 2009), in which the Agency laid out the types of studies it believed may provide credible evidence of a health claim – including the way those studies should have been conducted and the data that should have been collected –and those that will not provide credible evidence. Then, all a court has to do is ask if FDA followed the guidance document, without considering whether the standards the Agency put forth in the guidance document are a reasonable means of assessing credible evidence.

The post goes on to discuss recent litigation applying the Guidance. There is a second issue - how much can the FDA change a claim drafted by the manufacturer when it conditionally approves the claim?

[T]he court remanded to FDA the two claims that FDA was willing to allow with additional modifications.  The court stated that the modifications “replaced plaintiffs’ claim[s] entirely” and were not sufficiently precise, concluding:  “Where the evidence supporting a claim is inconclusive, the First Amendment permits the claim to be made; the FDA cannot require a disclaimer that simply swallows the claim.” In other words, if FDA allowed a qualified health claim, the qualification cannot be so limiting as to essentially erase the relationship between a substance and the specified disease or health-related condition.

Something to work on with your con law colleagues. EMM

Policy: Religious exemptions from regulation

(Sigh.) Arizona continues to pass interesting legislation. As a "laboratory for democracy", we are definitely something. See Eugene Volokh's analysis of Senate Bill 1288, "An Act ... Relating to the Free Exercise of Religion."

[T]his doesn’t just protect religious speech, or the holding of religious beliefs. Rather, it creates a religious exemption from generally applicable licensing and professional discipline conditions.

But what a religious exemption! Other religious exemption regimes generally fit two molds. Some are focused on exemptions from specific obligations (e.g., the conscientious objector exemption from the draft, or the clergy-penitent) privilege. Others apply to a broad range of laws, but provide a qualified exemption that can be overcome by a showing that granting the exemption would pose an “undue hardship” (that’s the Title VII standard for religious accommodation in employment) or would unavoidably undermine a compelling government interest (that’s the RFRA standard, the Free Exercise Clause standard from 1963 to 1990, and the constitutional standard under some state constitutions). In practice, the “compelling government interest” test has been applied fairly weakly here, and understandably so: Even supporters of religious exemptions recognize that there are many laws that need to be applied to people notwithstanding their religious objections. ...

Here, though, the exemption applies to all licensing and professional discipline laws (with the exception of those imposing discipline for criminal conduct or sexual misconduct), with no opportunity for the government to justify the denial of an exemption, however important its interest might be.

One more interesting issue. Subsection E. says, inter alia, "Criminal conduct does not include religious expression or beliefs." Does this amend all of Arizona's criminal statutes? It's plain language time! Many years ago a friend of mine working at a state attorney general's office told me about a civil rights action against the state for interfering with the plaintiff's sincerely held religion of bank robbery. EMM

Regulatory fun and the future

There are two practice points (among others) that I often bring to the attention of my faculty members: (A) Administrative law is a growth industry, and (B) most lawyers spend more time on local stuff than on national issues. Law and the Multiverse is a blawg that deals with the law of superheroes and supervillians from comic books. Great class discussion ideas. Today's post is particularly useful for admin law: "Animal Sidekicks, Part Three". It begins

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions ...

Parts I and II deal with animal cruelty laws and tort liability, respectively. OK, this sounds crazy. But look around you at all of the admin law issues that didn't exist when you were in law school. Our students are going to face situations that we can't even imagine now. If you put some of today's regulatory issues in a science fiction story 40 years ago, it would never get published. Let's make sure our students are ready to deal with novel legal issues, that they have the imagination and intellectual reach to apply the legal principles we understand to problems not yet invented. EMM

New admin law articles

From the University of Washington's Current Index to Legal Periodicals:

• Bisom-Rapp, Susan. Puzzling evidence from a troubled time: rethinking state promotion of safe work during the Bush Administration. 14 Employee Rts. & Emp. Pol'y J. 295-323 (2010). [H]|[L]|[W]
• Mason, Josephine K. Note. The un-creation of rights: an argument against administrative disclaimers. 62 Hastings L.J. 559-596 (2010). [H]|[L]|[W]

EMM

New administrative law article

New on SSRN: "Tethering the Administrative State: The Case Against Chevron Deference for FCC Jurisdictional Claims" by Daniel Lyons (Boston College). Abstract:

Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer.

This article argues that Chevron deference should not extend to agency jurisdictional claims, such as the FCC’s claim to authority over broadband. For both constitutional and policy reasons, courts should distinguish between agency action that fills a gap in a statutory scheme and action that defines the outer boundary of that scheme. As the Commission’s net neutrality project winds its way through the judicial system, courts should not allow the agency to define the limits of its own authority, and should instead search closely for a grant of authority from Congress.

EMM

More on Regulation Identification Numbers

Last week I described Regulation Identifier Numbers (RINs). There is more on RINs and some tips on finding public comments on the West Reference Attorney Blog at, appropriately, "More on RINs". EMM

FCC materials available for free + shipping

If you think you need these, pass this on to your librarian:

We have been approached by a law firm which is closing and which has generously offered the sets of Federal Communication Commission and related materials described below. The materials are free, with the exception of shipping costs. If you are at all interested, please contact Mrs Margaret Reynolds directly at the e-mail address noted below.

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 ---------- Forwarded message ----------

From: Margaret Reynolds <mwreynolds46@gmail.com>

 The following volumes are available:

 Pike and Fischer   Radio Regulations 1-25 +Digests

                   Radio Regulations, 2nd series, 1-78 + Digests

 Pike and Fischer   Communications Regulations 1-19+ Digests

 FCC Records        Vol 1-Vol 12

 FCC Reports 1-45 + Indices and Digests

 FCC Reports, 2nd series, 1-104 +Digests

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EMM

When is a policy a regulation?

Agencies promulgate policies all the time. It's a big part of their job - to interpret the applicable statutes, investigate the general facts, and provide guidance to enforcers. Often a policy is a set of guidelines or goals without direct binding effect - effectively it tells agency officials how to write the rules. Sometimes a policy can govern internal agency operations. However, sometimes a "policy" is expected to be directly binding on the public, and here is where it can cross over the line and become a "rule". An example of the last of these situations is "County Dug Itself a Hole by Limiting Its Scope of Review" by Katherine J. Hart on the Abbott & Kindermann Land Use Law Blog:

In Bollay, et al. v. California Office of Administrative Law, et al. ... the Court of Appeal Third Appellate District (Court), considered whether a State Lands Commission (Commission) policy prohibiting development seaward of the most landward historical position of the mean high tide line was an invalid underground regulation because it was not promulgated as a regulation pursuant to the Administrative Procedures Act (APA). The Court held that the policy was an invalid underground regulation because it was not exempt from promulgation under the APA. Contrary to the Commission’s contention, its policy was not exempt from promulgation under the APA because it did not fit within the “only legally tenable interpretation of a provision of law” exemption. Rather, the Court held that the policy was both over-inclusive as to lands not currently belonging to the state or which may never become state land and under-inclusive with respect to lands that may become state land in the future.

A quick WestlawNext search suggests that this particular grounds for holding that something labelled a policy is in fact an "underground" regulation is peculiar to California, a legal principle arising from § 11340.9 of its Government Code. For how this works in other states and in the Federal government, see CHARLES H. KOCH, JR., ADMIN. L. & PRAC. § 4:70[2] (3d ed.), RICHARD J. PIERCE, JR., ADMIN. L. TREATISE §6.3 (5th ed.) (Federal only), or JACOB A. STEIN ET AL., ADMIN L.  § 15.05[4] (Federal only). This is not a new problem. See KENNETH CULP DAVIS, ADMIN L. ch. 5 § 54 (1951) at 187 (discussing Columbia Broadcasting System v. U.S., 316 U.S. 407 (1942)).

The "only legally tenable interpretation of a provision of law" exemption from rulemaking also comes from the California APA in § 11340.9. Similarly in Alaska, "'obvious, commonsense interpretations of statutes' do not requirement rulemaking under the [Alaska] APA". CHARLES H. KOCH, JR., ADMIN. L. & PRAC. § 4:70[2] (3d ed.) citing Alyeska Pipeline Service Co. v. State, 145 P.3d 561, 573 (Alaska 2006).

EMM