Presentation Transcript

1. Gonzales v. Oregon – Chevron et al. standards applied The regulatory scheme: 21 U.S.C. §829(a):Schedule 11 controlled substances (meds) only available by prescription. 21 CFR §1306.04: prescriptions must be issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” AG’s interpretative rule (66 Fed. Reg. 56608 (2001)):assisting suicide is not a legitimate medical purpose within the meaning of 21 § CFR 1306.04 and may render dr’s registration inconsistent w/ public interest under 21 USC §824(a)(4) Remaining question: Should Court give Chevron/Skidmore deference to the interpretive rule’s interpretation of the statute? Parroting regulation – no Auer deference
2. Gonzales v. Oregon – Step 0 analysis A.G.’s interpretive rule can’t automatically get Chevron deference because it doesn’t fall into a “safe harbor” interpretive form – it’s an interpretive rule (not a binding rule or adjudication). But it could still gain Chevron deference if Congress intended rule to have the binding force of law (Mead). How did the majority answer this question? Why? How did Justice Scalia? What concerns push each opinion? What approach do they take? Who has the better answer?
3. Chevron’s Bottom Line Chevron is known as a reasonably deferential standard because it requires courts to defer to “permissible”agency interpretations of statutes that they administer That deference at step 2 of Chevron, however, has caused fights to erupt at the other steps: Step 0 – is Chevron deference inapplicable because the agency’s interpretation takes a form that does not deserve automatic deference? Step 1 – is the statute really ambiguous or does it clearly mandate that the agency act a certain way? Bottom line – if Chevron applies, it is deferential but whether it applies is not automatic
4. Judicial Review of Findings of Fact in Formal Proceedings How should courts approach review of findings of fact in formal trial-like proceedings held by agency? To what extent does it matter that there may be several layers of review within the agency and thus conflicting views of the facts on the record? How does a court assimilate and weigh all of this evidence and what deference does it give other triers of fact who have already done this job?
5. Universal Camera – putting yourself in place of the trial examiner (initial trier of fact) Trial Examiner findings: Despite handshake between Chairman & Weintraub, the latter continued to be angry at what he considered Chairman’s impermissible conduct during their 12/30 altercation Chairman never told Politzer he intended to resign but Politzer told Weintraub that Chairman intended to resign, motivated either by “honest mistake” or by the thought that their quarrel would be forgotten if action was delayed. The resulting belief that Chairman would resign resulted in several week delay between 12/30 incident and Weintraub’s command that Chairman be fired. What evidence supports the trial examiner’s findings in Universal Camera? What detracts? What would you have found if in his shoes? What did the NLRB do when reviewing trial examiner?
6. Judicial review of the NLRB’s fact findings – “substantial evidence” standard Assume now you are the courts in Universal Camera charged with reviewing the NLRB’s findings Now there is a conflict between the agency and the trial examiner How do you rule? Standard of review: “The findings of the Board as to the facts, if supported by [substantial] evidence, shall be conclusive.” (Taft-Hartley Act) What counts as evidence – i.e., what is there to “review”? What does “substantial evidence” mean? How do the different meanings of the term over time matter? What does SCT ultimately settle on? How would you rule as a court? What role do/should the trial examiner’s findings play in your review after Universal Camera?
7. What does “substantial evidence” mean after Universal Camera? APA Sec. 706(2)(E): Reviewing court shall . . . set aside agency . . . findings, . . . unsupported by substantial evidence in a case subject to sections 556 & 557 . . . [T]he court shall review the whole record or those parts of it cited by a party. Taft-Hartley Sec.10(e)– Findings shall be conclusive if “supported by [substantial] evidence on the record considered as a whole.” How does SCT interpret this? Must look to entire record to determine if substantial evidence exists, including evidence detracting from agency’s conclusion What does it mean? Substantial evidence review is about reasonableness of the agency’s decision not about rightness The possibility of drawing two inconsistent conclusions from the evidence doesn’t prevent a court from finding that substantial evidence supports the agency’s decision (p. 206 bottom)
8. The relationship between the APA & Taft-Hartley Act Taft-Hartley Act – governed review in Univ. Camera Organic statutes commonly contain standards of review that trump the APA ( APA is a default statute) BUT SCT says that substantial evidence test was meant to apply the same as the test was defined in the APA – thus, the lengthy discussion of the APA APA – “substantial evidence” standard (APA 706(2)(e)) Applies to “formal” proceedings conducted like a trial w/ findings of fact Will learn later when “formal” proceedings are “triggered” under APA. For now, just know that Sec. 556/557 reqm’ts are “trial-like” Some courts will apply similar review in “informal” proceedings to extent there are findings of fact but they use “arbitrary & capricious” standard since 706(2)(e) doesn’t apply – but the review is the same.