With many exceptions, the APA generally requires federal agencies to act through adjudication or rule making or both. Typical challenges to agency action contend that the agency misinterpreted its governing statute or made erroneous conclusions of law; that the agency's rules or findings of fact were arbitrary or capricious; or that the agency used improper procedures in its decision making. As discussed below, due to the courts' substantial deference to an agency's interpretation of its governing statute and to its findings of fact, procedural challenges to an agency's decision-making process may offer greater prospects for securing relief for your clients.4 State administrative procedure statutes similarly should not be overlooked as a potentially powerful tool against state actions that adversely affect your clients. However, at least two significant hurdles to judicial review must first be overcome: assertions that agency action is unreviewable and that the challenge was not filed at the appropriate time.
Section 701(a)(2), which precludes judicial review "to the extent that ... agency action is committed to agency discretion by law," poses a more significant issue in APA litigation. Federal agencies routinely assert the Section 701(a)(2) exception, arguing that its seemingly limitless sweep precludes judicial review in all sorts of cases. As summarized below, early Supreme Court decisions limited the breadth of Section 701(a)(2), but more recently the trend has moved against the presumption of reviewability.
In Citizens to Preserve Overton Park Inc. v. Volpe, plaintiffs challenged a U.S. Department of Transportation decision to assist the construction of a highway through a public park as a violation of a federal statute requiring parks to be avoided when "feasible and prudent."9 The Secretary argued that his decision was not subject to judicial review because the governing statute vested him with broad discretion relating to highway routes, did not expressly provide for judicial review and did not require the creation of a record for review. The Supreme Court, rejecting that assertion, held that Section 701(a)(2) was applicable only when there was "clear and convincing evidence" of legislative intent to bar review. Such is the case only in those rare instances where "statutes are drawn in such broad terms that in a given case there is no law to apply."10 The "feasible and prudent" standard, in the Court's view, supplied such a law.
Subsequent cases continued to chip away at the presumption of reviewability.16 Yet, the cases are very fact-specific, turning on a careful reading of the statute and its purpose.17 Two cases are illustrative, the first employing the logic of Overton Park, and the second following Chaney.18 They generally suggest a greater likelihood of reviewability when the case is framed as a challenge to agency action or decision-making than as a challenge to inaction or failure to enforce certain requirements.
In Beno v. Shalala, a group of Aid to Families with Dependent Children recipients challenged as arbitrary and capricious an Department of Health and Human Services grant of a waiver of maintenance-of-effort requirements; the waiver permitted California to embark on an experiment that reduced Aid to Families with Dependent Children benefits.19 The applicable statute authorized the Department of Health and Human Services secretary to grant waivers "to the extent and for the period [the Secretary] find[s] necessary" and for projects that "in the judgment of Secretary [are] likely to assist in promoting the objectives" of the Act.20 The Ninth Circuit held that the secretary's decision was reviewable and noted that the granting of waivers was not traditionally unreviewable. The statute "does not reveal a congressional commitment to the unfettered discretion of the Secretary;"21 and judicial review did not interfere with the statutory scheme.
Despite the language of the statute, the court further held that it contained a meaningful standard for review because the Aid to Families with Dependent Children program's objectives were specified in the statute.22 Although not the case in Beno, where the Ninth Circuit vacated the waiver and remanded the matter to the Department of Health and Human Services for development of the administrative record, reviewability victories are frequently short-lived as the deferential arbitrary and capricious standard makes reversal on the merits difficult.
In American Disabled for Attendant Programs Today v. U.S. Department of Housing and Urban Development, organizations advocating on behalf of the disabled sued the Department of Housing and Urban Development (HUD) under the APA for failing to ensure that multifamily housing was accessible to the disabled in alleged violations of the Fair Housing Act Amendment and Section 504 regulations.23 Plaintiffs alleged that HUD received many complaints of noncompliance but failed to investigate or take enforcement action against violators. Although HUD regulations state that HUD "shall" conduct a prompt investigation upon receipt of a complaint, the Third Circuit held that HUD's failure to do so was unreviewable and that Congress established no guidelines limiting HUD's discretion to investigate alleged violations.24 Despite the mandatory direction in the regulation, the court found this case to be controlled by Chaney. Again, even if the court had found HUD's failure to be reviewable, the general absence of controlling limitations on enforcement actions would have made it very difficult to show that the agency behaved arbitrarily or capriciously. Reviewability is but the first battle in an Administrative Procedure Act war.
Should an agency decision be reviewable under Section 701, a court may still decline to review it on the ground that agency action is not final, that the plaintiff failed to exhaust administrative remedies, or that the case is not ripe for review. There is considerable overlap among these doctrines.25 But each is discussed briefly, and separately, below.
In the absence of a substantive statute specifying the prerequisites for judicial review, or deeming certain agency action to be final, the Administrative Procedure Act governs the timing of judicial review.26 Section 704 limits judicial review to final agency action.
Courts generally find that challenges to informal agency action, such as the issuance of opinion letters, interpretive rules, policy statements and the like, are not ripe for review or are not reviewable agency action. As discussed below, such agency action is not subject to Chevron deference and ordinarily lacks the binding force or effect of law. Nevertheless, if such action is regarded as final and binding and the issue for review involves solely a question of law, or if failure to review would result in hardship to the plaintiff, then the case may suggest ripeness.
the issuance of interpretative rules, procedural rules, general statements of policy, and other rules exempted from normal rulemaking requirements.
Informal rulemaking is the three-step process governing the adoption of legislative rules. Legislative rules are as binding as statutes as they must be followed by the public and the agency issuing them. Agencies may issue legislative rules only if Congress has permitted them to do so. Informal rulemaking begins with the publication of a notice of proposed rulemaking in the Federal Register. The notice must describe the proposed rule or the subject and issues to be considered and must be sufficient to alert interested parties of the subject matter of the regulations and their probable impact.58 To assure public participation in the process, the notice of proposed rulemaking must solicit comments. In the second step, the agency receives and considers public comments. The process concludes with publication of final regulations and a basis and purpose statement reviewing the reasons for rulemaking, the agency's consideration of comments received, and the rationale for the rule adopted.59 The basis and purpose statement must reflect that comments were considered in light of all factors that Congress directed the agency to consider even if ultimately rejected. The result of informal rulemaking is a set of legislative rules having the force and effect of law.
Each stage of the rulemaking process is subject to potential legal challenge. The rulemaking notice must explain what the agency proposes to do and why.60 The notice of proposed rulemaking must be sufficiently detailed to offer the public a reasonable opportunity to comment. When the final rule is sufficiently divergent from the proposed rule, it may be challenged on the ground that the initial notice was inadequate to put the public on notice that the resulting rule was contemplated by the agency and thus one that could have been commented upon. In this regard, the notice of proposed rulemaking may be found insufficient if the final regulations were not a "logical outgrowth" or not "sufficiently foreshadowed" in the notice of proposed rulemaking.61 In addition, the agency must disclose the technical data, if any, relied upon in developing the proposed rule so that it may be subject to comment.62 As explained further below, the agency is required to consider the comments and explain why it rejected plausible alternative approaches to the final rule as part of the general statement of "basis and purpose" required by 5 U.S.C. § 553(c).
Whether an agency engages in the three-step process for informal rulemaking is significant in two respects. First, if the agency issues a legislative rule without engaging in notice and comment rulemaking, the resulting rule is procedurally invalid. Second, whether the agency adopts a legislative rule through informal rulemaking, or an interpretative or other rule without informal rulemaking, has implications for the extent of deference given to the agency interpretation of its governing statute. The dividing line between rules requiring public participation in notice and comment rulemaking and those not, therefore, is an important but elusive one.
In an important 2015 case, the Supreme Court rejected the D.C. Circuit's approach in Paralyzed Veterans.72 The case involved the administrative exemption to the Fair Labor Standards Act. A 2004 Department of Labor regulation, promulgated pursuant to notice and comment procedures, provided examples of such exempt employees. In 2006, the Department issued an interpretive opinion letter concluding that mortgage-loan officers were exempt. In 2010, the Department reversed that interpretation without using notice and comment rulemaking. The Court held that the APA did not require government agencies to use notice and comment rulemaking in amending or repealing interpretive rules which themselves are issued without it.
When Chevron deference applies remains an important and controversial issue before the Supreme Court. In National Cable & Telecommunications Association v. Brand X Internet Services, the Court reviewed a Ninth Circuit decision striking down the Federal Communications Commission's interpretation of the Communications Act of 1934, which was that cable companies that sell broadband internet services do not provide telecommunications services and are not, therefore, subject to common carrier regulation.93 This interpretation was asserted to be inconsistent with prior Federal Communications Commission rulings and foreclosed by a prior Ninth Circuit decision, in which the Federal Communications Commission was not a party, holding that cable companies were subject to the Act.
The Administrative Procedure Act requires federal agencies to employ trial-like formal adjudication procedures set forth in 5 U.S.C.§§ 554–557 only when the "adjudication [is] required by statute to be determined on the record after opportunity for agency hearing."97 In the relatively rare circumstances in which formal adjudications, or formal rule making, are required, agency finding of fact may be overturned only if unsupported by substantial evidence.98 The traditional and very deferential formulation of substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion."99 In Allentown Mack Sales and Service v. National Labor Relations Board, however, the Supreme Court appeared to impose a significantly more rigorous and less deferential sort of review on findings from a National Labor Relations Board formal adjudication.100 Such logic might be applied to other formal adjudications, such as social security appeals, although language in Allentown suggests that the Court's approach in Allentown is confined to National Labor Relations Board hearings.
For informal adjudications and rule making, agency findings of fact are subject to an arbitrary and capricious standard of review.101 The Supreme Court recently described that standard of review as "extremely narrow."102 But the extent to which it is different, if at all, from the substantial evidence test is unclear.103 The standard formulation is that the court upholds an agency's findings, unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."104 Under this standard, "the [agency] must be able to demonstrate that it has made a reasoned decision based upon substantial evidence in the record,"105 or "reasonable [and] based upon factors within the [agency's] expertise."106 Yet, even if this demonstration is offered with "less than ideal clarity," the Court will uphold it "if the agency's path may reasonably be discerned."107 Rescissions of regulations and decisions not to initiate rulemakings108 are also subject to the arbitrary and capricious standard of review.
In addition, the Supreme Court recently held, in Federal Communications Commission v. Fox Television, that a more searching review is not required in case in which an agency reverses policy. According to the Court, the agency must supply the usual "reasoned explanation" for agency action and that explanation must "display awareness that it is changing position."109 However, the court explained: "it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better."110 The Court further held that arbitrary and capricious review is not applied more rigorously to agency actions that may implicate the Constitution."111 As a result of Fox Television, arguments premised on the need for more rigorous review of agency policy reversals or policies that have constitutional overtones will not be successful.
1. 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial relief thereof."). The Administrative Procedure Act (APA) and review under the Administrative Procedure Act apply only to federal agencies. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (President is not an agency under the Administrative Procedure Act); Regional Management Corporation v. Legal Services Corporation, 186 F.3d 457, 462 (4th Cir. 1999) (Legal Services Corporation is not an agency).
2. 5 U.S.C. § 702.
3. Id. For a recent case considering whether a particular federal statute bars a suit that would otherwise fall within the Administrative Procedure Act's general waiver of sovereign immunity, see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204-10 (2012).
4. For an excellent discussion of this issue, see Gary F. Smith, The Quid Pro Quo for Chevron Deference: Enforcing the Public Participation Requirements of the Administrative Procedure Act, 30 Clearinghouse Review 1132 (March-April 1997).
5. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). For the factors employed to determine whether a statute precludes judicial review, see Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984).
6. See Jordan Hospital v. Shalala, 276 F.3d 72, 75 (1st Cir. 2002) (interpreting 42 U.S.C. § 1395ww(d)(10)(C)(iii)(II)); see also Briscoe v. Bell, 432 U.S. 404 (1977); National Coalition to Save Our Mall v. Norton, 269 F.3d 1092 (D.C. Cir. 2001) (finding statute bars judicial review), cert. denied, 537 U.S. 813 (2002).
7. See Sackett v. Environmental Protection Agency, 132 S. Ct. 1367, 1373-74 (2012) (Clean Water Act does not impliedly preclude review of compliance orders, distinguishing United States v. Fausto, 484 U.S. 439 (1988) and United States v. Erika, Incorporated, 456 U.S. 201 (1982)); Gutierrez de Martinez v. Lamagno, 515 US. 417 (1995); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986); Adamo Wrecking Company v. United States, 434 U.S. 275 (1978). See also Mejia Rodriguez v. U.S. Department of Homeland Security, 562 F.3d 1137, 1142-45 (11th Cir. 2009) (decision that immigrant is not eligible for temporary protected status is reviewable); Alto Dairy v. Veneman, 336 F.3d 560 (7th Cir. 2003) (deciding not to infer from Congressional silence intent to preclude judicial review).
8. McNary v. Haitian Refugee Center, 498 U.S. 479 (1991); Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Lepre v. Department of Labor, 275 F.3d 59 (D.C. Cir. 2001); cf. Dalton v. Specter, 511 U.S. 462 (1994) (ultra vires action is not alone unconstitutional). See also cases collected in Richard Pierce, Administrative Law Treatise § 17.9 at 1663 (5th ed. 2010).
9. Citizens to Preserve Overton Park Incorporated v. Volpe, 401 U.S. 402 (1971).
11. Webster v. Doe, 486 U.S. 592 (1988).
13. Heckler v. Chaney, 470 U.S. 821 (1985).
14. Id. at 830. Agency rules subject to notice and comment rule making and having the force and effect of law are generally held to serve as "law to apply," while policy statements and interpretative rules are not. See Pierce, supra note 8, 1011-12.
15. Chaney, 470 U.S. at 832-35. Compare Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (distinguishing between refusals to take enforcement action and refusals to initiate rulemakings). The Court also suggested that the presumption could be overcome if it were shown that the agency "has 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Id. at 833 n.4 (citation omitted). In Riverkeeper, Incorporated v. Collins, 359 F.3d 156 (2d Cir. 2004), the Second Circuit held the exception not to apply in a case challenging the Nuclear Regulatory Commission's refusal to impose certain conditions on a license to operate two nuclear power plants.
16. Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000); Your Home Visiting Nurses Services v. Shalala, 525 U.S. 449 (1999); see also Lincoln v. Vigil, 508 U.S. 182, 192 (1993) (decision to reallocate funds from lump-sum appropriation is committed to agency discretion). An exception is Kucana v. Holder, 130 S. Ct. 827 (2010), which held that 8 U.S.C. § 1252(a)(2)(B)(iii) does not preclude judicial review of decisions to reopen removal proceedings that a regulation, rather than a statute, places within the Board of Immigration Appeals' (BIA) discretion.
17. See, e.g., Center for Policy Analysis on Trade and Health v. Office of the U.S. Trade Representative, 540 F.3d 940 (9th Cir. 2009) (Federal Advisory Committee Act's "fairly balanced" requirement is not reviewable); Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) (Board of Immigration Appeal's decision not to reopen removal proceedings sua sponte is unreviewable); Port of Seattle v. Federal Energy Regulatory Commission, 499 F.3d 1016 (9th Cir. 2007) (Federal Energy Regulatory Commission's decision to deny refunds for energy transactions after adjudication that such refunds were warranted is reviewable), cert. denied, sub nom. Puget Sound Energy Incorporated v. California, 558 U.S. 1136 (2010); Ohio Public Interest Research Group v. Whitman, 386 F.3d 792 (6th Cir. 2004) (Environmental Protection Agency (EPA) decision not to issue notice of deficiency under Clean Air Act is not reviewable); Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004) (finding Federal Advisory Committee Act challenges to advisory committees based on alleged violation of "inappropriate influence" provision non-reviewable but violation of "fair balance" requirement reviewable).
18. Citing neither Chaney nor Overton Park, the Supreme Court recently held that Title VII's statutory requirement that the U.S. Equal Employment Opportunity Commission (EEOC) attempt conciliation prior to filing suit against an employer contains a judicially manageable standard for "relatively barebones" review. Mach Mining v. EEOC, 135 S. Ct. 1645, 1656 (2015). Such review can ordinarily be based on an affidavit supplied by the EEOC setting forth the notice and steps taken to comply with the statutory conciliation requirement.
19. Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994).
20. 42 U.S.C. § 1315(a).
21. Beno, 30 F.3d at 1067.
23. American Disabled for Attendant Programs Today v. U.S. Department of Housing and Urban Development, 170 F.3d 381 (3d Cir. 1999).
25. Pierce, supra note 8, § 15.1 at 1217-19; John Doe, Incorporated v. Drug Enforcement Agency, 484 F.3d 561, 567 (D.C. Cir. 2007).
26. See U.S. Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).
27. Bennett v. Spear, 520 U.S. 154 (1997). See U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016).
28. Id. at 178 (citations omitted).
29. The possibility of a revised determination based on new information does not make the decision non-final. Hawkes Co., 136 S. Ct. at 1814. See Fox Television Stations v. Federal Communications Commission, 280 F.3d 1027, 1038 (D.C. Cir. 2002), modified on reh'g by 293 F.3d 537 (D.C. Cir. 2002). See also Potash Association of New Mexico v. U.S. Department of the Interior, 367 F. App'x 960 (10th Cir. 2010) (agency opinion remanding matter is not final agency action); Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008).
30. Reliable Automatic Sprinkler Company v. Consumer Products Safety Commission, 324 F.3d 726, 731 (D.C. Cir. 2003).
31. See Dalton v. Specter, 511 U.S. 462, 469-71 (1994); Franklin v. Massachusetts, 505 U.S. 788, 797-800 (1992). See National Association of Home Builders v. Norton, 415 F.3d 8, 16-17 (D.C. Cir. 2005) (no final agency action in issuing protocols that are recommended and non-coercive); Independent Equipment Dealers Association v. Environmental Protection Agency, 372 F.3d 420, 426-27 (D.C. Cir. 2004) (letter that imposed no new requirements is not agency action); Air Brake Systems, Incorporated v. Mineta, 357 F.3d 632 (6th Cir. 2004) (agency letters not entitled to Chevron deference that do not have effect of law do not satisfy this element).
32. Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012). The Supreme Court more recently decided another Clean Water Act case and similarly found that a jurisdiction determination by the Army Corps of Engineers that a parcel of land contained waters of the United States, thereby requiring a permit for the discharge of any pollutant into those waters, was final agency action. United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016).
34. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004).
36. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
37. Examples of such statutes include the Social Security Act and 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).
38. McKart v. United States, 395 U.S. 185 (1969).
40. See also McCarthy v. Madigan, 503 U.S. 140 (1992); Christopher S. v. Stanislaus County Office of Education, 384 F.3d 1205, 1212 (9th Cir. 2004).
41. See, e.g., United States v. Williams, 514 U.S. 527 (1995) (futility established); In Home Health, Incorporated v. Shalala, 272 F.3d 554 (8th Cir. 2001) (futility not established); Shawnee Trail Conservancy v. U.S. Department of Agriculture, 222 F.3d 383 (7th Cir. 2000) (futility requires certainty that agency action will be adverse). A form of futility may occur when agency administrative processes cannot provide the relief sought by the petitioner. Honig v. Doe, 484 U.S. 305, 327 (1988). This issue has, for example, divided the circuits in Individuals with Disabilities Education Act litigation seeking money damages. See Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), and citations therein; M.Y. v. Special School District No. 1, 519 F. Supp. 2d 995, 1002 (D. Minn. 2007). In addition, courts frequently hold that exhaustion is excused in class actions seeking systemic relief because such relief is not available before administrative judges. See, e.g., J.S. v. Attica Central School, 386 F.3d 107, 114-15 (2d Cir. 2004), cert. denied, 544 U.S. 968 (2005); W.B. v. Matula, 67 F.3d 484, 495-96 (3rd Cir. 1995); M.O. v. Indiana Department of Education, 2008 U.S. Dist. LEXIS 66632 (D. Ind. Aug. 29, 2008); D.L. v. District of Columbia, 450 F. Supp. 2d 11, 18-21 (D.D.C. 2006).
42. The extent to which 42 U.S.C. § 405(g) requires exhaustion of remedies and to which the agency can waive the requirement is the subject of several arguably inconsistent decisions by the Supreme Court, most recently Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000); see Weinberger v. Salfi, 422 U.S. 749 (1975); Mathews v. Diaz, 426 U.S. 67 (1976); Mathews v. Eldridge, 424 U.S. 319 (1976); Heckler v. Ringer, 466 U.S. 602 (1984); Michigan Academy of Family Physicians, 476 U.S. 667; Bowen v. City of New York, 476 U.S. 467 (1986). The issue is a significant one for legal aid attorneys because it governs when a challenge to rules and actions of the Social Security Administration and the U.S. Department of Health and Human Services may be filed.
43. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979).
44. See Chapter 3.4 of this Manual.
45. Darby v. Cisneros, 509 U.S. 137 (1993).
46. These issues are discussed further in Chapter 3.2 of this Manual.
47. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).
48. Id. at 149. See National Association of Home Builders v. U.S. Army Corp. of Engineers, 417 F.3d 1272, 1281-84 (D.C. Cir. 2005).
49. See National Park Hospitality Association v. U.S. Department of the Interior, 538 U.S. 803 (2003) (applying Abbott to find challenge to interpretive rule unripe for review); Lujan v. National Wildlife Federation , 497 U.S. 871, 891 (1990) (challenge to regulation is ripe when there has been some "concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him").
50. Reno v. Catholic Social Services, 509 U.S. 43 (1993).
53. For two post-Reno v. Catholic Social Services cases finding ripe challenges to restrictions on government benefits prior to application, see Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996), and Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995).
54. Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994).
55. Courts entertained constitutional challenges when the claim was collateral to the administrative review process, that process was not suitable for such claims, and preclusion of review would cause irreparable injury. See, e.g., Kreschollek v. Southern Stevedoring Company, 78 F.3d 868 (3d Cir. 1996).
56. Formal rulemaking is a procedure that resembles an adjudicatory hearing at which testimony is taken subject to cross-examination. 5 U.S.C. §§ 553(c), 556-557. Formal rulemaking rarely takes place and never occurs in the context of poverty law issues. For a discussion of formal rulemaking, see Pierce, supra note 8, § 7.2.
57. A fourth, negotiated rulemaking, is set forth in 5 U.S.C. §§ 561-583.
58. 5 U.S.C. § 553(b).
59. Courts do not have the authority to require agencies to follow procedures beyond those required under the APA, even when rulemaking requires resolution of contested issues of fact, absent extremely compelling and so far undefined circumstances. Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Incorporated, 435 U.S. 519 (1978).
60. 5 U.S.C. § 553(b).
61. CSX Transportation v. Surface Transportation Board, 584 F.3d 1076 (D.C. Cir. 2009); National Mining Association v. Mine Safety and Health Administration, 116 F.3d 520 (D.C. Cir. 1997).
62. American Radio Relay League v. Federal Communications Commission, 524 F.3d 227, 236 (D.C. Cir. 2008).
63. Among these are exemptions for rules relating to "military or foreign affairs" and to matters relating to "agency management or personnel or to public property, loans, grants, benefits, or contracts." 5 U.S.C. § 553(a). The good-cause exception is generally invoked when there is an urgent need to issue a rule, see, e.g., Jifry v. Federal Aviation Administration, 370 F.3d 1174 (D.C. Cir. 2004) (suspension of pilots' certificates in wake of 9/11); Hawaii Helicopter Operators Association v. Federal Aviation Administration, 51 F.3d 212 (9th Cir. 1995) (air safety rule), and when public notice of a proposed rule may result in economic or other harm. See, e.g., Reeves v. Simon, 507 F.2d 455, 458-59 (Temp. Emer. Ct. App. 1975) (finding good cause for regulation prohibiting preferential gasoline sales in light of nationwide shortage).
64. 5 U.S.C. § 553.
65. American Mining Congress v. Mine Safety and Health Administration, 995 F.2d 1106 (D.C. Cir. 1993).
66. Hemp Industries Association v. Drug Enforcement Administration, 333 F.3d 1082, 1087 (9th Cir. 2003); Warder v. Shalala, 149 F.3d 73, 80 (1st Cir. 1998); Mission Group Kansas v. Riley, 146 F.3d 775 (10th Cir. 1998); Appalachian States Low-Level Radioactive Waste Commission v. O'Leary, 93 F.3d 103, 113 (3d Cir. 1996); Hoctor v. U.S. Department of Agriculture, 82 F.3d 165, 170 (7th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); New York City Employees' Retirement System v. Securities Exchange Commission, 45 F.3d 7, 13 (2d Cir. 1995). See Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 Administrative Law Review 547 (2000).
67. American Mining Congress, 995 F.2d at 1112. The third criterion was abandoned in Health Insurance Association of America v. Shalala, 23 F.3d 412 (D.C. Cir. 1994).
68. Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995).
69. See Mission Group Kansas, 146 F.3d at 775; United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989). The Supreme Court narrowly upheld interpretive rules in two such challenges. See Guernsey Memorial Hospital, 514 U.S. 87; Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994).
70. Paralyzed Veterans of America v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997), cert. denied, 523 U.S. 1003 (1998).
71. Id. at 586; Alaska Professional Hunters Association v. Federal Aviation Administration, 177 F.3d 1030, 1034 (D.C. Cir. 1999). The court observed in Paralyzed Veterans that the distinction between substantive and interpretive rules turns on how "distinctive" or "additive" the rule is to the statute. That is, if the interpretation defines vague statutory terms, like "fair," it is more likely to be substantive. Paralyzed Veterans, 117 F.3d at 588.
72. Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015).
73. Croplife America v. Environmental Protection Agency, 329 F.3d 876, 883 (D.C. Cir. 2003).
74. National Mining Association v. Secretary of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000). Compare Independent Equipment Dealers Association v. Environmental Protection Agency, 372 F.3d 420 (D.C. Cir. 2004) and General Motors Corporation v. Environmental Protection Agency, 363 F.3d 442, 450-51 (D.C. Cir. 2004) (letters that restated interpretation and imposed no new regulatory requirements were not reviewable) with Croplife, 329 F.3d at 883 (directive contained in press release stating, in departure with prior policy, that agency would not consider certain studies in its decision-making, was reviewable rule).
75. See Pacific Gas and Electric v. Federal Power Commission, 506 F.2d 33, 38-39 (D.C. Cir. 1974).
76. Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798, 806 (D.C. Cir. 2006); Professional and Patients for Customized Care v. Shalala, 56 F.3d 592, 600-601 (5th Cir. 1995); Rapp v. Office of Thrift Supervision, 52 F.3d 1510 (10th Cir. 1995).
77. Chevron U.S.A. Incorporated v. Natural Resources Defense Council, Incorporated, 467 U.S. 837, 842-43 (1984). Chevron deference is not owed to agencies without rulemaking power. Atchison, Topeka and Santa Fe Railway Company v. Peña, 44 F.3d 437, 441 (7th Cir. 1994) (en banc).
78. Pierce, supra note 8, § 3.6 at 215.
79. Cases rejecting an agency interpretation on step 1 grounds are Carcieri v. Salazar, 555 U.S. 379, 129 (2009); Barnhart v. Sigmon Coal Company, 534 U.S. 438 (2002). See also Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987); cf. Environmental Defense v. Duke Energy Corporation, 549 U.S. 561, 574 (2007) (rebuttable presumption that same term in two different sections of same statute must be interpreted same). Recent cases upholding agency interpretations of unambiguous statues are Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81 (2007); National Cable Telecommunications Association v. Gulf Power Company, 534 U.S. 327 (2002); and U.S. Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).
80. See, e.g., Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (deference to BIA interpretation of immigration statutes is particularly appropriate); EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1609 (2014) (possibility that uncommon applications of rule could exceed agency authority does not justify invalidating otherwise reasonable rule in its entirety); Mayo Foundation for Medical Education and Research v. United States, 131 S.Ct 704, 714-15 (2011); Entergy Corporation v. Riverkeeper, 556 U.S. 208, 129 (2009); United States v. Eurodif, 555 U.S. 305 (2009) (upholding agency's new interpretation of ambiguous statue when courts upheld agency's prior interpretation as reasonable); Global Crossing Telecommunications v. Metrophones Telecommunications, 550 U.S. 45 (2007); Household Credit Services v. Pfennig, 541 U.S. 232 (2004); Barnhart v. Walton, 535 US. 212 (2002); Securities Exchange Commission v. Zandford, 535 U.S. 813 (2002); Verizon Communications, Incorporated v. Federal Communications Commission, 535 U.S. 467 (2002); Chevron U.S.A., Incorporated v. Echazabal, 536 U.S. 73 (2002); see also National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (deferring to reasonable agency regulation when agency was unable to comply with two conflicting statutory commands simultaneously). Similarly, when the statutory language leaves a "gap" for the agency to fill and it does so both reasonably and in compliance with procedural requirements, the result is binding. Long Island Care at Home v. Coke, 551 U.S. 158, 164 (2007).
81. Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983); see Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015) (holding that EPA's interpretation of "appropriate and necessary" in Clean Water Act to exclude considerations of cost imposed by regulating power plant was unreasonable); Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442-44 (2014); Negusie v. Holder, 555 U.S. 511, 129 (2009); Cuomo v. The Clearing House Association, 557 U.S. 519, 129 (2009); Ragsdale v. Wolverine World Wide, Incorporated, 535 U.S. 81 (2002); Animal Legal Defense Fund v. Glickman, 204 F.3d 229, 234 (D.C. Cir. 2000); cf. Strickland v. Commissioner, 48 F.3d 12 (1st Cir. 1995) (upholding secretary of agriculture's decision to exclude depreciation from cost of producing self-employment income because it is not unreasonable interpretation of Food Stamp Act).
82. Pierce, supra note 8, § 3.6 at 219. The Court in United States v. Mead Corporation, 533 U.S. 218 (2001), explained that the carefulness of the agency's consideration of the interpretive question; its consistency, formality, and persuasiveness; and the expertise of the agency are factors in determining the measure of deference owed to an agency interpretation. Id. at 228. The duration of an agency's interpretation, reflecting the carefulness of its consideration, is also a factor. Kasten v. Saint-Gobain Performance Plastics Corporation, 131 S. Ct. 1325, 1335 (2011).
83. See Christensen v. Harris County, 529 U.S. 576 (2000); Auciello Iron Works v. National Labor Relations Board, 517 U.S. 781 (1996). The Court has recently held that Chevron applies to the interpretation of tax regulations. Mayo Foundation, 131 S.Ct at 714. Generally agency positions adopted for purposes of litigation are not accorded deference. Bowen v. Georgetown University Hospital, 488 U.S. 204, 212 (1988); Natural Resources Defense Council, Incorporated v. Abraham, 355 F.3d 179, 201 (2d Cir. 2004).
84. City of Arlington v. FCC, 133 S. Ct. 1863 (2013).
85. See Federal Express Corporation v. Holowecki, 552 U.S. 389, 399 (2008) (compliance manuals and internal directives); Kentucky Retirement Systems v. Equal Employment Opportunity Commission, 554 U.S. 135, 128 (2008) (same); Alaska Department of Environmental Conservation v. Environmental Protection Agency, 540 U.S. 461, 487-88 (2004) (internal guidance memos do not qualify for Chevron deference); Christensen, 529 U.S. at 587.
86. Skidmore v. Swift and Company, 323 U.S. 134 (1944).
87. Mead Corporation, 533 U.S. at 231-32 (2001).
89. Id. at 226-27. For a case in which the Executive Branch office, here, the Attorney General, lacked the authority to issue an interpretive rule, which therefore was not entitled to Chevron deference, see Gonzales v. Oregon, 546 U.S. 243 (2006) (rejecting interpretive rule stating that Oregon Death With Dignity Act, which permitted use of controlled substances for physician-assisted suicides, was not legitimate medical purpose under Controlled Substances Act).
90. The Supreme Court's opinion in Mead offers some insight into the nature of the relevant analysis. The Court examined the statute authorizing the tariff rulings (and noted that they were subject to judicial review in the Court of International Trade) and agency practice (rulings were not binding on third parties, generally lacked reasoning, and were issued in vast numbers and by many offices). In contrast, the Court in Walton, 535 U.S. at 222, suggested that agency interpretations of its governing statute—interpretations which are not the product of formal adjudication or notice and comment rulemaking—may be subject to Chevron deference, depending on the "interpretive method and nature of the question at issue." Where, as in Walton, the agency has expertise, the issue is interstitial and important to the administration of the program, the program is complex, and the agency studied the issue carefully and consistently, Chevron deference is owed. Mead and Walton cast doubt on the lower deference previously accorded to social security rulings. See Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991) (en banc). At the same time, Mead has caused considerable confusion. See Adrian Vermuele, Mead in the Trenches, 71 George Washington Law Review 347 (2003).
91. See, e.g., The Wilderness Society v. U.S. Fish and Wildlife Service, 353 F.3d 1051, 1067-69 (9th Cir. 2003) (en banc).
92. Smith, supra note 4, at 1151 & n.191, citing Cerventez v. Sullivan, No. CIVS-89-529 LKK, slip op. at 19 (E.D. Cal. Apr. 26, 1993); cf. Nebraska v. Department of Health and Human Services, 340 F. Supp. 2d 1 (D.D.C. 2004).
93. National Cable and Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).
94. Id. at 981-82. See Mayo Foundation, 131 S. Ct. at 713. In Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016), the Court cited Brand X and reiterated that "[a]gencies are free to change their existing policies as long as they provide a reasonable explanation for the change." However, it cautioned that the "agency must at least 'display awareness that it is changing position' and 'show that there are good reasons for the new policy.'" Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). When, as was the case with the Department of Labor's interpretation of a provision of the Fair Labor Standards Act, the agency failed to make a reasoned explanation for its change of interpretation, that explanation is entitled to no Chevron deference.
95. Id. at 982-83 (citations omitted).
96. Administrative rules or interpretations of an agency's ambiguous regulation are entitled to deference. Auer v. Robbins, 519 U.S. 452, 461-63 (1997). However, such deference is not due if the regulation interpreted merely parrots the governing statute. Gonzales, 546 U.S. at 256-57. In a recent Supreme Court decision on Auer deference, the Court upheld an agency's interpretation of an ambiguous banking regulation because it was not a post hoc rationalization, plainly erroneous, or inconsistent with the language of the regulation. Chase Bank USA v. McCoy, 131 S. Ct. 871, 881 (2011). See also Talk America Incorporated v. Michigan Bell Telephone Company, 131 S.Ct. 2254 (2011) (deferring to FCC's novel interpretation of regulation expressed in amicus brief). In 2013, several members of the Court indicated that, when presented with the proper case, they were poised to reconsider Auer deference and perhaps terminate the concept. See Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326, 1339 (2013) (Roberts, C.J., concurring); id. at 1340-42 (Scalia, J., concurring in part and dissenting in part).
97. 5 U.S.C. § 554(a).
99. Interstate Commerce Commission v. Louisville and Nashville Railroad Company , 227 U.S. 88, 91 (1913).
100. Allentown Mack Sales and Service, Incorporated v. National Labor Relations Board, 522 U.S. 359 (1998).
101. 5 U.S.C. § 706(2)(A).
102. U.S. Postal Service v. Gregory, 534 U.S. 1, 7 (2001).
103. Bangor Hydro-Electric Company v. Federal Energy Regulatory Commission, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996); Aman v. Federal Aviation Administration, 856 F.2d 946, 950 n.3 (7th Cir. 1983).
104. 5 U.S.C. § 706(2)(A).
105. Northern States Power Company v. Federal Energy Regulatory Commission, 30 F.3d 177, 180 (D.C. Cir. 1994).
106. AT&T Corporation v. Federal Communications Commission, 394 F.3d 933, 936 (D.C. Cir. 2005) (Roberts, J.).
107. Alaska Department of Environmental Conservation v. Environmental Protection Agency, 540 U.S. 461, 497 (2004) (citations omitted). See also National Association of Home Builders , 551 U.S. 644 (decision by higher office within agency to change decision of lower level decisionmaker is not, in and of itself, arbitrary and capricious).
108. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (Environmental Protection Agency's decision not to initiate rulemaking to address greenhouse gas emissions from new cars was arbitrary and capricious).
109. Federal Communications Commission v. Fox Television, 556 U.S. 552, 129 (2009).


Emily Forbes is an award-winning author of 18 medical romances for Harlequin Mills and Boon. Her first book was published in 2004 and she has just won the 2013 RuBY (Australian Romantic Book of the Year) Award in the short sweet category for her story Sydney Harbour Hospital: Bella's Wishlist.
Living in Australia her stories have been set everywhere from the beach to the Outback and, while she has a soft spot for Flying Doctor romances, she has also enjoyed working on two series with other medical authors. The "Young Nurses" and "Sydney Harbour Hospital" series were challenging but great fun.


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Host of Anderson Cooper 360 on CNN
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Anderson Cooper anchors Anderson Cooper 360 , an unconventional, wide-ranging weekday news program on CNN. Mr. Cooper, who joined CNN in December 2001, served as CNN's weekend anchor before moving to the 7 pm hour in March 2003 following the war in Iraq.
Since joining CNN, Mr. Cooper has anchored major breaking news stories, including the network's overnight coverage of the war in Iraq, as news of the military conflict was unfolding live during the day in Baghdad. Mr. Cooper also anchored much ...
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Changes in 'street valium' market may be a factor in increasing drug-related deaths
This article was originally published in The Times on the 26th of February 2018
Counterfeit valium bought online in enormous quantities from China has been blamed for a steep rise in drug-related deaths across Scotland.
Experts say the country is being flooded with potentially lethal blue pills which are being sold for as little as 30p each. They can kill when combined with heroin, methadone or widely-prescribed painkillers such as gabapentin. In Dundee, which seems to be bearing the brunt, there were 12 fatalities recorded last month alone. The city council has convened a "drugs commission" to tackle the emerging crisis with representatives from the NHS, Police Scotland and drugs agencies. A senior figure in the city's SNP-led administration has also backed the idea of giving heroin to addicts in a medically supervised setting to stem the death toll.
The latest figures show that more than twice as many people are dying from drug use in Scotland than a decade ago. A total of 867 people died in 2016, 23 per cent more than the previous year and double the number in 2006.
Specialist drug agencies expect overdose deaths to rise to further record levels, noting that people are dying in alarming numbers.
Dave Barrie, service manager with Addaction, which supports drug users in Dundee, insisted that urgent action was needed. "One life is too many, but when you are losing up to ten people a month then crisis is probably an accurate way to describe it," he said. "The amount of people dying, not only in Dundee but nationally, means that action now needs to be taken."
Mr Barrie said that "street valium", whose chemical contents are often unknown, was becoming increasingly prevalent. "People are importing these drugs from China via the internet. They are buying thousands of blue pills for virtually nothing and they can can double, triple or even quadruple their money, Individuals are profiting massively through misery."
The drugs are being bought in bulk by crime gangs and sold by dealers in housing estates and the city centre.
Ken Lynn, Dundee council's lead spokesman on health and social care, said: "I have lost count of the people who have died. We can't go on like this. That is why we are going to be launching a drugs commission next month."
Mr Lynn, an SNP councillor, indicated his personal preference was for radical measures. "I wouldn't rule anything out. I am in favour of safe consumption rooms for drug users and I am also interested in heroin prescription."
In Glasgow, the council and NHS have backed plans to try and cut drug deaths by giving medical-grade heroin directly to addicts in a specialist clinic. The plans were modified after the Home Office opposed plans to let users to bring their own drugs to the clinic.
Fake valium has been linked to dozens of deaths across the country, with Glasgow, Ayrshire, Inverclyde and Lothian regarded as overdose hotspots.
David Liddell, chief executive of the Scottish Drugs Forum, said: "Drug overdose deaths have been at record highs for the past two years and this trend shows no sign of changing.
"Most fatal overdoses are caused by poly-drug use, so the concerns expressed in various areas across Scotland about changes in the 'street valium' market may be justified."
Jo Roden, a Dundee resident who lost two sons to drugs, called for greater scrutiny, stating: "Shoeboxes filled with pills are heading from China to tower blocks in Dundee month after month. Surely these concerns have to be raised."
Earlier this month, it emerged that the UK is the second-largest market for untraceable global online sales of anti-anxiety medications via the dark web, the collective name for hidden and anonymised websites.
Tags: Benzodiazepines, Dave Barrie, David Liddell, Drug related deaths, Dundee, Ken Lynn, The Times