New Material Items
There are two significant developments to report with respect to agency adjudications since the 5th Edition was published in 2006. The first relates to adjudicatory procedures required by statute, Chapter 4.A.1. The second relates to the adequacy of notice under the due process clause, Chapter 4B.2.
A. Adjudications – Procedures Required by Statute
1. Formal or Informal Procedures?
The First Circuit recently rejected its own Seacoast Anti-Pollution League v. Costle, which appears at page 336 of the casebook. Seacoast is the first of three decisions that reflect different approaches to determining whether the requirements of sections 554, 556, and 557 of the APA are triggered by particular statutory hearing provisions. The others are City of West Chicago, Illinois v. United States Nuclear Regulatory Commission, 701 F.2d 632, (7th Cir. 1983) (casebook p. 340), and Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 873 F.2d 1477 (D.C. Cir. 1989) (casebook p. 344).
In Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006), the First Circuit adopted the approach of the D.C. Circuit in Chemical Waste Management, Inc., granting Chevron deference to the agency’s interpretation of an ambiguous hearing requirement. The First Circuit also relied upon National Cable & Telecommunications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688 (2005) (casebook pp. 724-25), in which the Supreme Court had held that Chevron-entitled agency interpretations trump prior judicial decisions unless the prior decisions had explicitly adopted the only possible interpretation. Since Seacoast itself had acknowledged the ambiguity of the statutory hearing requirement, the Dominion Energy panel had no difficulty avoiding the normal principle that precludes a circuit court panel from issuing a decision contrary to that of an earlier panel of the same circuit.
An edited version of the Dominion Energy decision is available here. We believe, however, that Seacoast remains valuable for pedagogical purposes. It still represents one of three approaches to determining when a statutory hearing provision triggers § 554(a) of the APA. Another decision reaching the Seacoast outcome, Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977), relied upon similar reasoning and remains valid in its own circuit. Marathon is cited in all three of the decisions in the casebook (pp. 338, 343, and 348). An edited version of Marathon Oil appears here.
Moreover, the Supreme Court has not yet addressed the question of whether Chevron deference applies to the question of whether a statutory hearing provisions triggers the requirements of §§ 554(a), 556, and 557 of the APA. Both U.S. v. Mead Corp., 533 U.S. 218 (2001) and FDA v. Brown & Williamson Corp., 529 U.S. 120 (2000), suggest that Chevron deference may not be appropriate in this situation. It is not clear the Congress would have intended the courts to defer to an agency’s interpretation of a procedural provision that was arguably meant as a check on the agency’s power. Neither Dominion Energy, nor its spiritual ancestor Chemical Waste Management, Inc. v. EPA, adequately explains why an agency should be able to control the question of whether a statute requires it to follow procedures whose purpose is to protect the interests of individual private actors. To date, two commentators have argued that Chevron deference should not apply to these decisions. See Melissa M. Berry, Beyond Chevron’s Domain: Agency Intepretations of Statutory Procedural Provisions, 30 Seattle U. L. Rev. 541 (2007), and John F. Stanley, Note, The “Magic Words” of Section 554: A New Test for Formal Adjudication under the Administrative Procedure Act, 56 Hastings L.J. 1067 (2005).
Should the Court reject Chevron deference in these cases, the result would be a revival of Seacoast. In Dominion Energy, the court said it was bound to apply Chevron deference, but that “we in no way disparage the soundness of Seacoast's reasoning.” 443 F.3d at 18. Until the Supreme Court resolves the matter, the Seacoast approach remains viable in most of the circuits.
B. Constitutional Source of Procedure in Adjudications
2. When Due Process Attaches, What Procedures Does It Require?
The Supreme Court recently addressed the test for the adequacy of notice under the due process clause. As reported at Note 8 at pages 507-08 of the casebook, the Supreme Court in Dusenbery v. United States, 534 U.S. 161 (2002), rejected Mathews balancing as the means to determine the adequacy of notice. It adopted instead the “more straightforward test” of whether the notice is “reasonably calculated under all the circumstances to apprise” the individual of the action. But what if the government sends notice by certified mail, and the certified mail is not claimed? The Dusenbery test may have been met initially, but does the return trigger additional notice? Yes, according to Jones v. Flowers, 547 U.S. 220 (2006). And how are we to determine what would then constitute adequate notice? “[A]ssessing the adequacy of a particular form of notice requires balancing the ‘interest of the State’ against ‘the individual interest sought to be protected by the Fourteenth Amendment,’” which sounds a lot like Mathews balancing. With a forceful dissent, this case is an instructive examination of both the particulars of notice under the due process clause and the tension between rules that permit judicial judgment based upon general principles and those that require greater consideration of the particular facts.
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