Removal Cases

1. Removal Cases

2. Citizens to Preserve Overton Park v. Volpe

3. Map of Planned Highway

4. Relevant Statutory Provisions The Secretary shall not approve any program or project that requires the use of any public park land unless: • there is no feasible and prudent alternative to the use of such land, and • such program includes all possible planning to minimize harm to such park §4(f) of the Department of Transportation Act;§ 138 of the Federal-Aid Highway Act

5. APA § 701 • This chapter [7 – Judicial Review] applies, according to the provisions thereof, except to the extent that— (1) Statutes preclude judicial review; or (2) Agency action is committed to agency discretion by law.

6. APA § 706 (2)The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

7. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. Only available for formal, on-the-record rulemaking or adjudicatory hearing on-the-record required by statute. I.e., applies when there is a required record that is the basis of agency action.

8. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. Calls for independent judicial factfinding in a new trial. Only applies in 2 circumstances: When the action is adjudicatory in nature and agency factfinding is inadequate (very rare) When issues that were not before the agency are raised in a proceeding to enforce a nonadjudicatory action

9. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. This is the “ultra vires” (beyond the powers) standard. As explained by the Court: First, delineate range of Secretary’s authority and discretion. Second, whether, on the facts the Secretary’s decision can reasonably be said to be within that range. Here, Secretary’s decision to approve the highway only permissible if there are no feasible alternatives or alternative feasible routes present “unique problems.”

10. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. This is the “arbitrary or capricious” standard. The court evaluates whether there has been a “clear error in judgment.” Involves searching and careful inquiry into the facts. But, the court may not substitute its judgment for the agency.

11. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. This is procedural review for compliance with APA, enabling Act, and agency’s procedural requirements. Example – whether Secretary followed procedural requirement to make formal findings on the record. But, no such formal findings required here.

12. Spectrum of deference Deferential Review Independent Review De Novo Re-determination No review Review precluded by statute Arbitrary or capricious Trial de novo Ultra vires (exceeds statutory authority) Committed to agency discretion Without observance of procedure Substantial evidence

13. APA § 706 The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

14. Sorting through the “record” • Formal findings were not required by the statute in this case (so Court will not toss the Secretary’s decision on the basis of a lack of formal findings), BUT • The Secretary has provided no account of the decision sufficient to permit judicial review of his compliance with the statute (post-hoc rationalizations inadequate), so THEREFORE • The District Court must reexamine the decision based on the full administrative record before the Secretary at the time of the decision • If no such record exists or is inadequate, then the officials may be subject to compelled testimony regarding their mental processes.

15. Current Map of Overton Park

16. FCC v. Fox Television Excerpt from Court opinion: First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ’em.” 613 F. 3d, at 323. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

17. Massachusetts v. EPA §202(a)(1) of the Clean Air Act: “The [EPA] Administrator shall prescribe . . standards applicable to the emission of any air pollutant from . . . new motor vehicles . . ., which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. “

18. In sum, an agency action may be arb/cap when: • Substantively irrational -- “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” • Example: no consideration of obvious alternative solutions like airbags or non-detachable automatic seatbelts in State Farm. • Agency failed to adequately explain its decisionmaking. • Example: a majority of the Court in State Farm thought that the Secretary of Transportation did not adequately explain why detachable automatic safety belts had the same safety profile as manual belts. • Agency relied on factors that Congress had not intended it to consider. • Example: consideration of factors other than whether greenhouse gases contribute to climate change in EPA v. Massachusetts.

19. 4 part test for when agency change in policy is arb/cap: (From FCC v. Fox) • Agency must demonstrate awareness that it is changing position • Agency action must be permissible under the statute • There are good reasons for the new policy • The agency believes the new policy is better