Category Archives: Administrative Law

As a series of court decisions from around the country have made clear, our immigration courts — the administrative bodies that, among other things, hear asylum applications — are a disgrace. The major cause is underfunding, requiring the Immigration Judges to shoulder huge caseloads and make decisions at a speed that probably makes quality work next to impossible.

But even the pressures of the job don't excuse the conduct documented in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007). Nor, given that the Seventh Circuit has all the time it wants to reach a decision, does it excuse the majority decision to defer to an arbitrary and capricious decision. Judge Posner's dissent is far more persuasive than Judge Evans for the majority — although Posner here fails to persuade Judge Easterbrook, who is the third vote.

Posner points up errors of logic, and notes a judicial demeanor from hell, which together suggest that this was not a fair hearing. The best the majority can say is that the decision, although “odd” is not “so deeply flawed” as to be reversible. If we take it at face value, this looks like the rare case which turned on how deferential a reviewing court should be. But one could be forgiven for reading it as showing a great reluctance on the part of some judges to admit just how bad things are in some IJ's hearing rooms, for to do so would be to open the floodgates to immigration petitions and reversals.

Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), long one of the perennials of administrative law teaching, is no more. It seems that late last month the First Circuit overruled Seacoast in Dominion Energy Brayton Point, LLC v. Johnson, 2006 U.S. App. Lexis 8205, 2006 WL 820405 (1st Cir., March 30).

Seacost is famous for holding that the words “public hearing” in a statute triggered formal adjudication under sec. 554 of the APA. The idea was that if the issues were sufficiently important, Congress should be understood to have assumed that the agency should use the cumbersome full-dress procedures of an on-the-record adjudication. This was not as strange as it may sound to modern ears, as it followed the influential Attorney General’s Manual on the APA.

Other circuits, however, took a different tack, especially after the landmark case of Chevron v. United States. Those courts held that unless Congress explicitly instructed the agency to hold a “formal” hearing (most commonly by saying that the hearing should be “on the record”) the agency could in most cases choose to proceed by the less onerous, although still quite formalized, “informal” rulemaking process.

That makes the Ninth Circuit the sole remaining outlier, based on Marathon Oil Co. v. EPA, 564 F.2d 1263 (9th Cir. 1977). That rule is probably doomed too.

The good folks at POGO note that the Dept. of Justice isn’t following its own policy strongly suggesting that all agencies provide a link to its Freedom of Information Act (FOIA) request policy on all agency homepages.

Blogged in part because I like all-acronym titles.

Public Knowledge writes:

Public Knowledge is pleased to announce that The U.S. Appeals Court for the D.C. Circuit this morning threw out the Federal Communications Commission's order establishing the so-called “broadcast flag.” In a unanimous opinion, the court agreed with our argument that the FCC exceeded its authority in creating this broadcast flag scheme. Judge Harry T. Edwards, writing for the court, said: “In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims.” This was a case that Public Knowledge organized and financed. We're still looking for help to pay for the case, so please take the opportunity, if you haven't, contribute to PK or become a member. It's easy. See here: http://www.publicknowledge.org/membership-drive-200504.

We couldn't have done it without the help of our co-plaintiffs, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association and the Special Libraries Association.

I am not making this up. From the Federal Register:

The BLS plans to have email data collection in place in all States in 2004 or in early 2005. At this time, six volunteer States are testing the procedures and software of email data collection. OES is enhancing the State Survey Processing and Management (SPAM) computer system to improve the quality and timeliness of the data. OES will convert to the June 6, 2003, definitions of Metropolitan Statistical Areas by 2005.

NOTICES DEPARTMENT OF LABOR Bureau of Labor Statistics Proposed Collection, Comment Request Friday, February 13, 2004 69 FR 7264-01, 2004 WL 256289 (F.R.) .

Want to bet someone won a round of drinks as to whether s/he could sneak that one by the boss?

Administrative lawyers and policy wonks will be pleased to know that OMB Watch, a very fine bunch, have launched RegWatch, a regulatory policy blog devoted to “quick alerts to the latest news and views about protections of the public interest.” (Thanks Barbara!)