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Abstract: Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of "remand without vacation." That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests. Some argue that this very untraditional form of relief is prohibited by section 706 of the Administrative Procedure Act, which provides that a reviewing court "shall . . . set aside" an agency action that violates one of the review standards codified therein. This article contends, however, that section 706 should not be read literally, but rather in light of a longstanding canon of statutory construction that disfavors interpretations that would displace the equitable remedial discretion of the federal courts. The article traces the history of that discretion in the administrative law context and examines its numerous manifestations in modern case law. The tradition of remedial discretion is not without limits, however. Several recent cases, in which the Supreme Court has evinced a preference for bright-line rules over equitable balancing, suggest that at least some Justices would have doubts about remand without vacation. Indeed, a peek at some of the Court's internal working papers confirms the existence of such doubts. Moreover, this remedial device is subject to practical objections - most notably, that it might unduly relax pressure on agencies to do their work carefully the first time around, and discourage private citizens from initiating court actions to challenge agency orders. Nevertheless, this article defends remand without vacation as a legitimate exercise of discretion. The practice entails relatively simple judgments, not drastically different from determinations that courts have often made in the past. Moreover, the practical worries about the device have not been borne out by experience to date. Accordingly, the article advocates continued but cautious use of remand without vacation. Relying in part on guidelines endorsed by the American Bar Association, the article concludes by suggesting standards to guide the courts' exercise of discretion in this area.
Abstract: Kenneth Culp Davis, one of the twentieth century's outstanding authorities on administrative law, passed away in September 2003. This commemorative essay surveys his manifold contributions to the field. The concept that is most often associated with his name, the distinction between adjudicative facts and legislative facts, is still a crucial reference point in analyses of the right to be heard in judicial or administrative proceedings. His influence has been felt in a number of other areas as well. During the past few decades, for example, administrative adjudication has become more streamlined, rulemaking has become more widely employed, and obstacles to obtaining judicial review, such as standing and ripeness defenses, have been relaxed. Davis played a large role in promoting each of these developments. Some of his other initiatives, such as his efforts to tame the administration of "discretionary justice," have been less successful. The essay concludes with a suggestion that Davis's ideas, influential as they were, might have had even greater impact if the legal system had not, in recent times, veered away from the kind of open-ended judicial common lawmaking that much of his work presupposed.
Kenneth Culp Davis, administrative law, adjudication, rulemaking, discretion, judicial review
Abstract: Since its enactment in 1946, the Administrative Procedure Act (APA) has been plagued by a drafting error in the clause that defines one of its core terms. A rule is ordinarily understood to be an official pronouncement that speaks in general terms, addressing a class of situations. The Act, however, provides in relevant part that the word rule means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. Thus, under a literal reading of the definition, the status of a pronouncement as a rule turns on whether it is prospective, not on whether it is framed in general terms. In light of the discrepancy between the Act's wording and ordinary usage, most administrative lawyers simply ignore the definition. From time to time, however, the APA definition is taken at face value, and the result is confusion and misdirected analysis. Although a statutory fix is by no means a matter of urgent social concern, Congress does periodically consider adopting amendments to the APA, and a technical amendment to strike the words or particular and and future effect from the definition of rule would be a worthwhile endeavor at such a time.
administrative law, Administrative Procedure Act, rulemaking, adjudication
Abstract: This article offers a skeptical assessment of United States v. Mead Corp., 121 S.Ct. 2164 (2001). In Mead, the Court undertook to clarify the manner in which courts should review administrative agency pronouncements that lack the force of law, such as interpretive rules, general statements of policy, and advice letters. Mead exempts those pronouncements from the familiar test of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), under which an agency's statutory interpretation should be upheld if the statute is ambiguous and the agency's interpretation is reasonable. Instead, according to Mead, courts should review interpretations rendered in these nonbinding "formats" using the so-called Skidmore test, under which the court may construe the statute on its own authority but should give "weight" to the agency's views (Skidmore v. Swift & Co., 323 U.S. 134 (1944)). The article maintains that this rule fits together poorly with the Chevron formula as it has come to be understood. Chevron has evolved into an amalgam of ordinary statutory construction (used to determine whether the statute is "ambiguous") and oversight of the agency's exercise of discretion (used to determine whether the interpretation is "reasonable"). In practice, the latter step overlaps the traditional inquiry into whether the agency's position was arbitrary or capricious. At the first stage of Chevron analysis -- which deals with whether the statute is ambiguous -- the shift to Skidmore probably will not matter very much. Under either test, the court is expected to apply "traditional tools of statutory construction," giving a small edge to the agency. Minor variations in emphasis as to how deferential the court should be while performing this task are unlikely to affect outcomes very much. Instead, the distinction between Chevron and Skidmore deference is likely to matter more at the second stage -- where the statute has been deemed ambiguous. In that situation, someone will have to use creativity to ascribe a meaning to the statute. At least in theory, it should make a difference whether the court allows the agency to be the primary decisionmaker (per Chevron) or retains that responsibility for itself (per Skidmore). However, the article goes on to claim that, in most of these situations, the answer given by Mead is wrong. The agency's resolution of what is acknowledged to be a statutory ambiguity is closely intertwined with its exercise of statutory discretion. The reviewing court should not use Skidmore review to displace that discretion. Regardless of whether the agency has already exercised its delegated authority or has merely announced the manner in which it intends to exercise it in the future, Chevron should apply. Mead mistakenly treats nonbinding actions as an inferior form of administrative behavior -- to which, therefore, the court owes less respect. Those actions should rather be seen as fundamentally similar to binding actions, even if reviewed at an earlier stage of implementation. It is true that many nonbinding pronouncements contain only interim interpretations, as to which the agency has not fully thought out its position. However, finality and ripeness defenses should keep those pronouncements from being reviewed at all. Where, on the other hand, an interpretation is settled enough within the agency that the challenger can overcome finality and ripeness problems, the argument that the interpretation is only a work in progress, and thus deserves little deference, loses much of its force. The foregoing analysis applies primarily to regulatory schemes in which the statute is implemented exclusively by the agency in the first instance, and the court's only function is to review the agency's decisions. The article concludes by examining administrative schemes in which the agency shares implementation authority with courts or other entities. In these latter situations (one of which underlay the Skidmore case itself), the Skidmore test can appropriately play a substantial role.
Abstract: 'Direct final rulemaking' allows an administrative agency to expedite its issuance of noncontroversial regulations. To use this technique, the agency publishes a rule and invites members of the public to object to it. If no one files a significant adverse comment, the rule can become law without further effort on the agency's part. A recent article by Professor Lars Noah (summarized in issue #15 of this abstracts series) criticizes this technique as unlawful and undesirable. The present paper is a rebuttal to Noah's critique. It suggests that agencies may need to improve their implementation of direct final rulemaking, but they need not abandon the technique itself. Indeed, a properly handled direct final rulemaking can honor all of the values underlying the rulemaking provisions of the Administrative Procedure Act (APA). For this reason, the doctrine of substantial compliance supports the legality of the device. Moreover, the "good cause" exemption of the APA provides additional legal support. The paper concludes that, at a time when agencies are under pressure to streamline their operations, due in part to the "ossification" of the rulemaking process, agencies should continue to take advantage of direct final rulemaking.
Abstract: The famous case of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), holds that a reviewing court should evaluate an administrative agency's interpretation of its enabling legislation by first asking whether the statute has a clear meaning ("step one"); if the statute is ambiguous, the interpretation should be upheld if it is reasonable ("step two"). But if the agency's interpretation is not clearly contrary to the statute, on what grounds could it be deemed unreasonable? Cases from the Supreme Court, which has never set aside an agency action on the basis of step two, do not answer this question. This article examines a line of D.C. Circuit cases that tend to identify Chevron step two review with traditional "arbitrary and capricious" review. The article defends this approach and suggests that it offers a better solution to the problem of giving meaning to step two than any of the salient alternatives.
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