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First major area of judicial review of agency action – agency policy making

First major area of judicial review of agency action – agency policy making. Consider findings of fact: “Exposure to ozone is harmful at levels greater than .oo1 ppm” “The stairs were in disrepair, with many of the boards forming the planks having rotted.”

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First major area of judicial review of agency action – agency policy making

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  1. First major area of judicial review of agency action – agency policy making Consider findings of fact: • “Exposure to ozone is harmful at levels greater than .oo1 ppm” • “The stairs were in disrepair, with many of the boards forming the planks having rotted.” • A finding of fact is based on scientific or other evidentiary bases. • Policy decisions, however, are generally “not susceptible to the same type of verification or refutation by reference to the record as are some factual questions.” Common forms of policy decisions: (1) decision to adopt, not adopt or rescind an agency rule, (2) decision to adopt/rescind agency precedents in adjudications, (3) decision to enforce/change enforcement policies re agency rules

  2. Standard of review for agency policy choices • Challenges to agency policy choices thus essentially claim that the agency’s decision between several possible/plausible courses of action are “arbitrary” • Courts review such challenges using APA Sec. 706(2)(A). • APA Sec. 706(2)(A) – reviewing court must set aside agency action, findings and conclusions if they are “arbitrary, capricious or an abuse of discretion or otherwise not in accordance with the law.” • SCT used this standard in Overton Park, which was one of the SCT’s early cases in this area of law. • Secy’s release of highway funds for I-4o proposal through Overton Park was a policy choice between that route and other possible routes.

  3. Evolution of “arbitrary & capricious” review of policy decisions • Originally: Standard probably meant to be deferential to agency. • As views of agency behavior changed, the standard evolved to the more rigorous “hard look” version. • Overton Park (SCT 1971) – a court will not “substitute” its judgment for the agency but the review must be “searching and careful.” Court“must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” • Greater Boston (DC Cir. 1970) – a court’s function “is to assure that the agency has given reasoned consideration to all the material facts and issues. This calls for insistence that agency articulate with reasonable clarity its reasons for the decision, and identify the significance of the crucial facts . . .” • What are courts trying to achieve with this form of review? • Reasoned decision-making & increased accountability • Avoidance of agency capture/implementation of public interest

  4. State Farm’s description of “hard look” review - (pp. 133-34) • Scope of "arbitrary and capricious" review is narrow. A court is not to substitute its judgment for that of the agency. But the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. • Normally, a rule would be arbitrary &capricious if the agency has (1) relied on factors that Congress has not intended it to consider, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation for its decision that runs counter to the evidence before the agency, or (4) offered an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise

  5. Motor Vehicle Mfrs. Assn v. State Farm– the facts • NTMVSA authorized DOT/NHTSA to enact motor vehicle safety standards that are practicable, stated in objective terms, and are for the purpose of reducing traffic accidents and resulting deaths/injuries. • Statute also required DOT/NHTSA to consider (1) relevant available motor vehicle safety data, (2) whether proposed regs were reasonable, practicable, appropriate for particular types of vehicles and (3) the extent to which the regs implemented the Act’s purposes. • DOT/NHTSA proposed regs requiring passive restraints (i.e. airbags and automatic seatbelts) (1969), then abandoned the proposal (1976). • 1977 - DOT/NHTSA finally adopted regs requiring passive restraints (gave auto makers choice of installing either airbags or passive seatbelts). • 1982 - regs were rescinded because DOT/NHTSA claimed changed economic circumstances, especially of auto industry. • State Farm challenged revocation as arbitrary & capricious.

  6. Applying “hard look” Review in State Farm 1st issue: Rescission of the passive restraint regulation as it applies to airbags - fails hard look review Agency claims it rescinded rule because it can no longer find automatic restraint requirement will produce significant safety benefits. • Why does the agency think it is unlikely to see increased safety benefits? • Is that a reason to repeal the entire rule or do something else? • What was the agency’s reasoning as to why it didn’t consider airbags-only possibility? • What about the reasons in n. 1 p. 137? Should they have changed the court’s calculus?

  7. Applying “Hard Look” Review in State Farm -- cont’d 2nd issue: Rescission of the passive restraint regulation as it applies to automatic seatbelts – also fails hard look review Unlike with the airbags issue, the agency gave some basis for its argument that the use of automatic (mainly detachable) seatbelts would not clearly lead to increased usage (and thus saved lives). • Why does the SCT reject the agency’s decision on this issue – e.g., how is the agency’s decision-making “unreasoned?” • What is wrong with the agency’s evidence or its consideration of it? • What alternatives did it not consider or explain in terms of why they were not acceptable? • What is the SCT likely concerned about given the agency’s actions?

  8. Politics and “hard look” review • Could the agency in State Farm have successfully justified the revocation of the passive restraint regulations by saying “we are revoking the regs because Reagan promised in the 1980 presidential election that we would deregulate the auto industry”? • If not why not? • How would Justice Rehnquist answer this question?

  9. FCC v. Fox Television • Federal law gives FCC power to enforce statutory ban on broadcast of any “indecent” language. • For decades, FCC has had a reg interpreting this language as prohibiting “patently offensive” language that describes “sexual or excretory activities” during periods when kids might hear it • 1987 – FCC decided that it would enforce its reg against “deliberate and repetitive use” of such words – i.e., such use was necessary for a finding of indecency that triggers a possible violation & enforcement action • 2004 – FCC changed its policy to allow enforcement of the FCC reg against fleeting uses of “patently offensive” language (FCC then enforced new policy in several instances) • Fox challenged the change in enforcement policy as “arbitrary & capricious” – 2nd Circuit agreed

  10. FCC v. Fox – the debate (?) among the Supreme Court justices re review of changed policy decisions • Hard look review applies to initial decisions to adopt a policy. • Agency must give reasons and a reasoned explanation of it’s decision to adopt that policy if it is challenged • What happens when an agency decides to change a policy (especially one of longstanding)? What level of review applies? • This question come up especially with changes in “soft” policies such as enforcement policies or adjudication precedents where there it isn’t the kind of notice and public participation that rulemakings have. • How does Justice Scalia describe the application of hard look review in this instance? • How does he describe Justice Breyer’s application of the standard? Is this description fair?

  11. “Hard look” review & changed policy positions – Scalia v. Breyer • Scalia (majority) • What kind of reasons for the new policy are required to justify it? • What evidence is necessary to justify the new policy? • Breyer (dissent) • What kind of reasons for the new policy are required to justify it? • What evidence is necessary to justify the new policy? Reasoning and evidence provided by the FCC: Bleeping technology has advanced Expletives always invoke coarse images Contextual inquiry is more consistent w/ agency approach

  12. What Scalia & Breyer agree on re arbitrary & capricious review and “changed” positions: • Agencies must provide more detailedexplanations when: • Fact findings were integral to the old policy and the new policy relies on fact findings that contradict those facts underlying the prior policy • Agency must now at least explain why its old view of the facts is no longer controlling • Agencies change their view on the governing law • Agency must explain why law is no longer controlling • People have relied on the prior policy to a great extent when taking action • Agency must explain how it will deal with these reliance interests

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