For Question 2:
A major questions doctrine analysis requires a deeper look at the statute at issue than does the analysis in Brown and Williamson, which is sometimes characterized as Chevron step 0.

I’m getting pretty confused about this.

Your notes on the blog say (about West VA v. EPA): “Note that when Roberts gets to the MQD analysis he does not do a detailed statutory analysis. Think about why this is not necessary under the MQD.”

Then, in the Word doc about MQD, it says:

The MQD goes beyond Brown and Williamson and asks the policy question – is this what Congress intended?

But then the next bullet point says: As we see in West Va. v. EPA, the court makes this call
without the need for the searching analysis it did in Brown and Williamson.

In the first bullet point- what do you mean by the court “going beyond” if you don’t mean that it does more analysis? I think I’m missing a big picture issue because I feel like a lot of the notes about this contradict each other.

You are probably not missing the point, you are confused because what the Court is doing is confusing. Is the MQD another analysis tool or is it just the court’s way of overruling laws the majority does not like? It will take more cases to know for sure.

The point for the slide and the question is that the Court’s divining the true Congressional policy is not based on looking harder at the statute. That would be Brown and Williamson, where through ordinary statutory construction the court determined Congress had passed other laws that would conflict with the FDA regulating tobacco under the unmodified FDCA.

In West Virginia v. EPA, the Court decided that Congress had not addressed climate change specifically and thus it was too important to let the agency make climate change regs. This did not take a deep statutory analysis. This is very clear in Gorsuch’s concurrence, which spends little time of the CAA at all. Going beyond the statute in this case means deciding if Congress wanted the CAA to cover GHGs as a policy matter. Since GHGs were not mentioned in the CAA, there was no real analysis to do.

This is why the MQD is so controversial. If it just looked like Brown and Williamson – the simple statutory construction that Justice Barrett calls it in a later case, it would not be a major change. But unless the court sees the statute direct the agency to do exactly what the agency wants to do, the court does not need to go into the statute or look for other statutes to see if there are other ways to justify the action. It just says Congress needs to clearly authorize the action or the agency cannot act.

So the MQD is perhaps a deeper look into the mind of Congress, but not into the statutes.

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Would files include notes we typed on word? Or is the computer fully shutdown besides exam 4, files is confusing me .

You have access to everything you would normally have access to on your computer. You are not allowed to cooperate with other people.

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Could you please explain this part of the FTCA/Bivens document?

“There is nothing in the statute that sets a limit for how long you can wait to file after the 6 months.”

It is on page 5, second paragraph (in The Admin Claims Process section).

I thought the six months was the time limit on filing.  What am I missing?

This should have said, You have six months to file a claim in court after your claim is denied by the agency. If the agency ignores your claim, you may file in court six months after filing the claim with the agency. The statute does not set a limit on how long you have to file a claim if the agency does not respond to your claim.

The statute says:

(b)A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

The six-month clock is triggered by the denial of the claim, not filing it with the agency. I think it was a drafting oversite not to set a limit for how long you can wait after the 6 months if your claim is ignored.  It had not come up in the cases the last time I checked. The usual problem is people forgetting to file with the agency before going to court.

On question 39 of this quiz, it asks which is not required of as part of the FOIA request. In the powerpoint, it does not say that the class of requestor to which you belong is required in the “basic elements”, but I would assume that it is required. Is the answer to that question (A), the reason you are entitled to the information?

You are right that you need to provide the class of requestor, or at least risk being charged the top rate for the information. The justification for getting the information is one of the key differences between FOIA and discovery. You do not have to provide any reason – everyone is entitled to the information. Unfortunately, including the agents of enemy countries and terrorists. After 9/11, a lot of materials that might be used by terrorists were reclassified so they would not be available under FOIA.

 

Can you help me out with this question?

In the Standard Oil v. FTC case, the agency made an initial finding that Standard Oil had engaged in anti-competitive activities. Choose the truest statement.

    1. Standard Oil had standing because it was accused of illegal behavior.
    2. Standard Oil did not have standing because there was no final agency action until the agency choose to bring an enforcement proceeding.
    3. Standard Oil has standing because the finding could hurt it in private antitrust litigation.
    4. Answers A and C are correct.

Are you referring to the 1980 case FTC v. Standard Oil?  I think the answer is B because the court ruled that the complaint was not a final action, and therefore it was not judicially reviewable.  Does that equate to Standard Oil not having standing, or am I getting confused?

You are not confused! It is the 1980 Standard oil case and the court found that threats of outside private actions were not enough to base standing on, in the absence of a final agency action.

> In your video lecture “putting the pieces together after west va v epa” on the slide

> “when a court still use chevron?” You mentioned a hypo where congress amended the

> caa which would be a clear statement that the epa had the power to regulate ghg’s. I

> thought if the Chevron analysis in part 1 was clear that congress had spoken clearly on

> the issue, the Chevron analysis is over. Am I incorrect?

Great question. You are right, if Congress speaks clearly on the precise point the agency is making a rule on, then you stop with Chevron Step 1. Even before West Virginia v. EPA, many courts did not invoke Chevron if they found that the statute clearly allowed or clearly forbade the agency action. You would not need Chevron because that would be straight forward statutory analysis.

What I was thinking about in the lecture was that clearly saying that the EPA should regulate GHGs to control climate change would solve the MQD problem – Did Congress mean for the EPA to make rules with major consequences for climate change? But that broad grant of authority still leaves the agency to work out the details. In the Chevron case itself, Congress had clearly said that the agency should regulate air pollution but did not specifically whether it must do it stack by stack or by treating a chemical plant as a single source. The Court looked at whether the specific detailed regulation was reasonable (Step 2), after determining that it was within what Congress empowered the agency to do.

If Congress had amended the CAA to clearly empower the EPA to regulate GHGs, the court would still have to look at Obama’s Clean Power Plant Rule to determine if the specific requirements are reasonable. You could imagine a rule – close all coal plants in 30 days – that could still be found unreasonable even under a clear grant of power. The court could use Chevron, or it could go back to Skidmore and Hearst and never mention Chevron again. Only time will tell.

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Louisiana ALJs and the current attack on federal ALJs.
When the legislature created the Central Panel and gave the ALJs the power to issue orders that were not reviewable by the agency, it saw this as fairer (and also less effective) than allowing the agency to review the decisions. Well-Founded Fear shows the inconsistency problem that you can get with single ALJs making decisions. The conservative push to limit the powers of Federal ALJs argues that they have too much power and that the agency should have more control over their decisions.
Questions about Louisiana Adlaw – Revised
> Quiz Question 1> ALJs on the Central Panel only review and bind the agency on facts, not matters of law.> I just want to make sure you are referred to the Central Panel here in Louisiana and that this> answer is False because they bind the agency on facts and matters of law.Exactly> Question 5> Despite the ruling in Wooley that ALJ decisions are not subject to enforcement, State Farm> can use the policy approved by the ALJ because the Res Judicata Statute, La. R.S.> 13:4231,  will protect State Farm from enforcement actions by the Insurance Commissioner.>> I’m unclear about this – res judicata would not have precluded litigation after Wooley, but> since Bonvillian II – it does, correct?  Because the ALJ orders/judgments are now> considered final?Reading it again, this question is confusing because it refers to where State Farm is at the end of the Wooley case, before the Bonvillian cases. At that point, State Farm might have been OK from an insurance regulatory position in using the policy. Since it did not have the agency’s approval, it would have to worry about unfair claims practices claims from private litigants for using the unapproved policy. This was a legal question for the interval between the Bonvillian cases and the Wooley case.  > Question 8> In 1988, the Louisiana Legislature gave Worker’s Comp ALJs the right to issue final> judgments and removed the injured worker’s right to file a claim directly in the district court.>> I know the second part of the question is true, but I am confused about the first part.  In my> notes, I have “ALJs given power to initially review claims” so I answered False.You are confusing with happened in 1983 with the revision in 1988. This is not in the Wooley case, it is background material I provided to give context for the discussion of the Roemer case. > Question 9> In the Bonvillian II case, the plaintiff was finally able to get his bail bondman’s license> through which legal process? Choose one.>> I chose Trial de novo.  I just want to make sure that is right because the declaratory> judgment option is making me second guess it.  Didn’t he technically get his license through> de novo but there had been a declaratory judgment at one point?You need to read Bonvillian II again – it is clear about what it did to solve the license problem. (Remember, while Louisiana appellant review is de novo, trial de novo is a rare thing.) The question is asking the process you would use, i.e., what motion would you file, not the court’s justification for it. The Bonvillian II court did base the order on res judicata, directly contradicting the Supreme Court’s holding that res judicata could not apply to these ALJs because they could not issue final orders. Wooley seems to say that if the ALJ orders are final, they raise conflicts with Louisiana Article 5, which regulates judges. But since the Louisiana Supreme Court has let the Bonvillian II case stand, we have to assume that it is OK with final orders from ALJs.> Question 10> One of the key questions in State Farm v. Wooley is whether decisions about regulating> insurance are reserved to the district courts. The court found that insurance regulation was> not a traditional civil or criminal matter, and thus is not reserved to the district court.>> This one I am just completely confused about.  I think I just do not understand what the case> is about.  I thought it was about whether the Department of Insurance could seek judicial> review in the courts.State Farm is a deep dive into Louisiana separation of powers. Remember the history – the office of Insurance Commissioner was created in the constitution but given no powers or budget. The legislature created the agency by funding it and giving it the power to regulate insurance, go to the courts, etc. The legislature then took its power to make final determinations and gave it to an ALJ in a different agency. The legislature also prevented the agency from going to court to challenge the ALJ decisions.The agency challenged this shift of powers, which occasioned the court to look at the constitutional basis of the Agency’s powers. Remembering the problems when the legislature changed the powers of the worker’s comp agency, the court reviewed whether regulating insurance was a traditional civil law area. If so, it would be reserved to the court, as was making final determinations of worker’s comp claims. Having determined that it was legitimate to allow the agency to regulate insurance and make final determinations, then the question became whether there was any legal reason that the legislature could give those powers to another agency. The general rule is that the legislature can take away any powers it gives an agency. Thus, the court found that the agency had no legal basis to challenge the legislature’s weakening of it its powers. The court did have problems with the ALJ issuing final rulings with the effect of court rulings. That leads to the Bonvillian cases.

Hint – Impeachment is like an indictment, the Senate vote to remove is the trial. Impeachment is just the House side of the process. We do not talk about impeachment and removal because the Senate has never removed a president. Thus in popular conservation, the two actions are lumped under impeachment.