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Litigation Risk as a Justification for Agency Action

Timothy G. Duncheon

To justify its rescission of the Deferred Action on Childhood Arrivals (DACA) program, the Department of Homeland Security (DHS) employed a novel rationale: risk of litigation. DHS argued that DACA was potentially unlawful and might be disruptively enjoined by a court and that the Agency could preemptively wind down the program in light of risk that it would be forced to do so in litigation. This Note argues that agencies can and should consider litigation risk in taking regulatory action—especially given the increasing frequency of nationwide injunctions. But it proposes that an agency invoking litigation risk must examine four elements: forgone benefits prior to a predicted disruptive injunction, probability of the injunction, costs of the injunction, and contrary litigation risk. Examination of these elements here suggests that litigation risk alone did not justify the DACA rescission and that regulatory changes will rarely be justified on this sole basis. Courts must carefully scrutinize litigation risk rationales, as excessive deference to this rationale may allow agencies to evade responsibility for their policy decisions by passing blame on to hypothetical future judicial action. 

FCA v. FDA: The Case Against the Presumption of Immateriality from Agency Inaction

Alexander Kristofcak

The False Claims Act is a powerful statutory vehicle for the federal government to deter fraud on its purse, a significant public policy concern. Under the Act, government contractors can be liable for violating material legal requirements of federal programs. In assessing materiality, the courts are asked to evaluate the natural tendency of a violation to influence payment. One question that has been raised in a series of cases in the health product domain is whether government’s payment, despite knowledge of a violation, necessarily means that the violation was immaterial for the purposes of FCA enforcement. The industry is asking the courts to adopt that defense—what this Note terms the “immateriality presumption from agency inaction”—at the pleading stage. To justify the presumption, the defendants argue that the nuanced judgments of the agency vested with the authority and the requisite expertise to regulate—here, the Food and Drug Administration—must prevail over both the private parties who bring actions under the statute’s qui tam provisions, as well as anyone else within the government. Using the Act’s evolution, structure, legislative history, and empirical data, this Note argues against the presumption. First, it shows that the Act’s design strikes a deliberate balance between encouraging private actors and their meaningful oversight by the government. As such, the presumption is not needed to combat unmeritorious private claims. Second, the Note argues that potential overlap between enforcement under the Act and agency oversight is valuable in several ways. The Note’s most significant contribution is in explaining why the immateriality presumption, by tethering fraud enforcement to judgments of the agencies, could be harmful to the agencies them- selves and public interest writ large. In doing that, the Note challenges the claim that the presumption honors the expertise and facilitates the discretion of agencies. 

Chevron and the Attorney General’s Certification Power

Jonathan P. Riedel

Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability— but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts: Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine. 

What the Federal Reserve Board Tells Us About Agency Independence

Caroline W. Tan

In administrative law, the sine qua non of agency independence lies in the enabling statute. If the statute protects the agency’s head from removal except “for cause,” then the agency is considered insulated from presidential control and classified as independent. On the other hand, if the statute is silent on for-cause tenure protection, then the agency is classified as executive. This Note questions that central assumption by relying on the history of the Federal Reserve Board of Governors, arguably one of the most independent agencies in Washington. By tracing the Board’s history from a limited institution in 1913 to the powerful central bank of today, this Note demonstrates that in at least some cases, the driving factors behind operative independence have more to do with the practical realities of governance than the formalities of administrative law. Indeed, even though the Fed’s enabling statute is silent on the issue of for-cause tenure protection, the President has never fired the head of the agency. Even President Trump has declined to go so far. This Note addresses this paradox through a detailed look at the Board’s history and the major inflection points in its rise. Throughout, this Note also highlights the active role that the Board played in its own ascendency, demonstrating the dynamic life of administrative agencies and the powerful role they can play in shaping their own futures. 

Can a Statute Have More Than One Meaning?

Ryan D. Doerfler

What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.

This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings— in particular, linguistic economy—are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.

As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.

The Costs of Clean Water in Hoosick Falls: Private Civil Litigation and the Regulation of Drinking Water Quality

Bronwen B. O’Herin

Despite extensive statutory law and regulations governing drinking water quality in the United States, water-contamination crises have been a regular feature of the American news cycle in recent years, perhaps most notably in Flint, Michigan, but also in a disturbing number of localities across the United States, including the upstate New York town of Hoosick Falls. This Note uses the water-contamination crisis in Hoosick Falls as a case study to analyze why these apparent regulatory failings continue to persist. This case study reveals how scientific uncertainty, resource constraints, and the socio-political dynamics of public regulation in the drinking-water context limit public ex ante regulatory mechanisms’ power to deter drinking-water contamination and to rebalance the equities disrupted when drinking-water pollution occurs. In Hoosick, private tort litigation has the potential to be a powerful vehicle for addressing such regulatory shortcomings, but its ability to do so will turn on whether courts are willing to be more flexible in their conceptions of legally cognizable harm. I argue that such flexible conceptions are justified and would serve a crucial dual purpose—bolstering pollution deterrence and providing a forum in which social costs not accounted for during the regulatory, industrial, and political processes that drive public-resource governance may, finally, be accounted for.

Regulation and Distribution

Richard L. Revesz

This Article tackles a question that has vexed the administrative state for the last half century: how to seriously take account of the distributional consequences of regulation. The academic literature has largely accepted the view that distributional concerns should be moved out of the regulatory domain and into Congress’s tax policy portfolio. In doing so, it has overlooked the fact that tax policy is ill suited to provide compensation for significant environmental, health, and safety harms. And the congressional gridlock that has bedeviled us for several decades makes this enterprise even more of a nonstarter.

The focus on negative distributional consequences has become particularly salient recently, playing a significant role in the 2016 presidential election and threatening important, socially beneficial regulatory measures. For example, on opposite sides of the political spectrum, environmental justice groups and coal miner interests have forcefully opposed the regulation of greenhouse gases through flexible regulatory tools in California and at the federal level, respectively.

The time has come to make distributional consequences a core concern of the regulatory state; otherwise, future socially beneficial regulations could well encounter significant roadblocks. The success of this enterprise requires significant institutional changes in the way in which distributional issues are handled within the executive branch. Every president from Ronald Reagan to Barack Obama has made cost-benefit analysis a key feature of the regulatory state as a result of the role played by the Office of Information and Regulatory Affairs, and the Trump administration has kept that structure in place. In contrast, executive orders addressing distributional concerns have languished because of the lack of a similar enforcement structure within the executive branch. This Article provides the blueprint for the establishment of a standing, broadly constituted interagency body charged with addressing serious negative consequences of regulatory measures on particular groups. Poor or minority communities already disproportionally burdened by environmental harms and communities that lose a significant portion of their employment base are paradigmatic candidates for such action.

Jurisdiction, Exhaustion of Administrative Remedies, and Constitutional Claims

Peter A. Devlin

The doctrine of exhaustion of administrative remedies says that a person challenging an agency decision must first pursue the agency’s available remedies before seeking judicial review. It was created by courts in order to promote an efficient justice system and autonomous administrative state. Congress has since written exhaustion requirements into many statutes to ensure and guide its application. Consequently, a court interpreting one of these statutory versions must first decide whether it is a jurisdictional rule or not. The fallout from this decision is the topic of this Note. By definition, jurisdictional rules are rigid: Courts may not create exceptions to them, parties may not waive or forfeit them, and they will loom over the proceedings from start to finish. Faced with a jurisdictional exhaustion requirement, courts have had to choose between diluting the concept of jurisdiction and allowing injustice. In this Note, I look for a way out of this tradeoff. I argue that statutory exhaustion requirements are neither jurisdictional nor non-jurisdictional rules, but rather mandatory rules with a particular set of effects on courts and parties. Courts, for example, may not apply equitable exceptions to statutory exhaustion requirements, but agencies may waive or forfeit them. I define this “mandatory” exhaustion by looking to case law, jurisdiction theory, constitutional structure, and the purposes of exhaustion. I also develop an exception for constitutional claims that arise outside of an agency’s proceedings. This exception helps avoid the threat to separation of powers that requiring exhaustion for such claims would create. As a result, if courts used mandatory exhaustion then they would be empowered to avoid injustice without creating a conceptual mess. Commentators have suggested that exhaustion requirements might be mandatory in nature, and the Second Circuit has treated them as such. But neither has provided much guidance on what that means. I try to fill in that gap by developing a descriptive and normative case for categorizing them as mandatory rules.

Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions

Katherine A. Rouse

What happens when a presidential administration fails or refuses to properly administer our nation’s environmental laws? Thanks to the design of our federal environmental statutes, American citizens are armed with a valuable legal tool to hold the Environmental Protection Agency (EPA) accountable: the citizen suit. Environmental citizen suits allow private citizens to sue the EPA to require it to carry out its statutory duties, and can be a valuable mechanism in the face of a presidential administration unsympathetic to environmental protection. Because citizen suit provisions allow citizens to sue the EPA Administrator for failing to perform an action or duty that is nondiscretionary under the statute, the permissibility of lawsuits frequently turns on judicial interpretation of the term “nondiscretionary duty.” There is currently a split across the federal courts as to how to construe this term. In fact, the case law on this topic has become somewhat muddled, with disparities arising among district courts and few courts of appeal ruling conclusively on the issue. Some courts have narrowed the term, thereby limiting opportunities for citizen suits. A primary disagreement is whether the presence of the word “shall” in a statutory provision is sufficient to impose a nondiscretionary duty or whether more is required. Some courts have determined that a duty is discretionary unless the provision also includes a “date-certain” deadline, requiring the Administrator to perform the prescribed action by a specific date that appears within that part of the statute. Other courts have resisted adopting a bright-line rule requiring a date-certain deadline before imposing a nondiscretionary duty on the Administrator. The Supreme Court has not spoken on this date-certain deadline rule. This Note will explore how courts have interpreted the term nondiscretionary duty in environmental citizen suit provisions. This Note argues that the federal judiciary as a whole should abandon the date-certain deadline rule and side with courts that construe nondiscretionary duty more broadly. This reading can be supported legally, and will ensure that citizens are able to sue to compel EPA action even when a presidential administration fails to carry out important environmental laws and regulations.

The Missing Structural Debate: Reforming Disclosure of Online Political Communications

Pichaya P. Winichakul

The Federal Election Commission (FEC), the nation’s campaign finance regulator, is charged with administering one of America’s fundamental anti-corruption measures: disclosure and disclaimer requirements for political communications. The FEC has come under attack for failing to enforce its disclosure laws against the Internet Research Agency, the Russian-based organization recently indicted for meddling in American elections through use of online political propaganda. Had the FEC properly enforced the disclosure laws, it could have armed the millions of Americans who viewed Internet Research Agency advertisements with critical information to take to the polls. Efforts to address this campaign finance failure have coalesced around the Honest Ads Act, a bill that proposes substantive changes to the campaign finance disclosure rules. This Note argues that the Honest Ads Act mischaracterizes the problem that led to the FEC’s regulatory failure, and offers another explanation: the structural problems that have led to agency inaction and capture. This Note explores FEC inaction and capture and begins to develop a legislative alternative to the Honest Ads Act.

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