Informal Processes and Discretion in Marijuana Licensing

ESSAY ON SECTION 5: INFORMAL PROCESSES AND
DISCRETION (Due 11:55 pm, May 13)
Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.
SCENARIO: You work for the Oregon Liquor Control
Commission(OLCC) in the Recreational Marijuana Licensing
Office(RMLO). You have many applicants and the place is
short-staffed since you loaned workers to the Unemployment
Division.
You have two scheduled video meetings today. The first is with

a Ms. Eleanor Rigby. Her e-mail says that she is an 80-year old
grandmother who needs some extra income to cover her
grandson’s tuition. She wants to explore whether it would be a
good idea for her to open a marijuana dispensary in Monmouth.
The second meeting will be with Bill Sellsmore from Curaleaf,
a marijuana business worth well over $500 million. Sellsmore is
interested in getting the OLCC to guarantee the licensing of ten
new retail outlets before they invest in Oregon anymore.
While the basic law is that dispensaries must be at least 1,000
feet from a school, there is the possibility for the RMLO to
grant limited exceptions. These are based on agency
discretionary judgement that the retail facility will not operate
in a way that attracts attention from students.
Here are the questions you must answer. If possible, connect
your answers to the scenario above.
1. How important are informal processes to public
administration? What factors influence the outcomes of
informal processes, such as the meetings you have scheduled?
2. What happens if you provide inaccurate advice during these
meetings and Rigby or Sellsmore make a bad business decision
as a result?
3) How do the courts generally review agency discretionary
actions, as demonstrated by the federal court? What could the
RMLO get wrong and have a licensing decision overturned in
judicial review?
Analysis on the Demand of Top Talent Introduction
in Big Data and Cloud Computing Field in China

Based on 3-F Method
Zhao Linjia, Huang Yuanxi, Wang Yinqiu, Liu Jia
National Academy of Innovation Strategy, China Association
for Science and Technology, Beijing, P.R.China
Abstract—Big data and cloud computing, which can help
China to implement innovation-driven development strategy and
promote industrial transformation and upgrading, is a new and
emerging industrial field in China. Educated, productive and
healthy workforces are necessary factor to develop big data and
cloud computing industry, especially top talents are essential.
Therefore, a three-step method named 3-F has been introduced
to help describing the distribution of top talents globally and
making decision whether they are needed in China. The 3-F
method relies on calculating the brain gain index to analysis the
top talent introduction demand of a country. Firstly, Focus on
the
high-frequency keywords of a specific field by retrieving the
highly cited papers. Secondly, using those keywords to Find out
the top talents of this specific field in the Web of Science.
Finally,
Figure out the brain gain index to estimate whether a country
need to introduce top talents of a specific field abroad. The
result
showed that the brain gain index value of China's big data and
cloud computing field was 2.61, which means China need to
introduce top talents abroad. Besides P. R. China, those top
talents mainly distributed in the United States, the United
Kingdom, Germany, Netherlands and France.
I. INTRODUCTION
Big data and cloud computing is a new and emerging

industrial field[1], and increasing widely used in China[2-4].
Talents’ experience is a source of technological mastery[5],
essentially for developing and using big data technologies.
Most European states consider the immigration of foreign
workers as an important factor to decelerate the decline of
national workforces[6]. Lots of universities and research
institutes have set up undergraduate and/or postgraduate
courses on data analytics for cultivating talents[7]. EMC
corporation think that vision, talent, and technology are
necessary elements to providing solutions to big data
management and analysis, insuring the big data success[8].
Bibliometrics research has appeared as early as 1917[9],
and has been proved an effective method for assessing or
identifying talents. Based on analyses of publication volume,
journals and their impact factors, most cited articles and
authors, preferred methods, and represented countries,
Gallardo-Gallardo et. al[10] assess whether talent management
should be approached as an embryonic, growth, or mature
phenomenon.
In this paper, we intend to analysis whether China need to
introduce top talents in the field of big data and cloud
computing by using bibliometrics. In section 2, the 3-F method
for top talent introduction demand analysis will be discussed.
In section 3, we will analysis the demand of top talent
introduction in big data and cloud computing field in China.
II. METHOD
In general, metering indicators contain the most productive
authors, journals, institutions, and countries, and the
collaboration networks between authors and institutions[11,
12]. Based on the commonly used bibliometrics method, 3-F
method for top talent introduction demand analysis is proposed.

3-F method has three steps:
Firstly, searching the literature database and forming a
high-impact literature collection in a specific field. Focusing on
the high-frequency keywords in the high-impact literature
collection by using the text analysis method as the research
hotspots. Just to be clear, the high-impact literature refers to the
journal literature whose number of cited papers ranked in the
top 1% in the same discipline and in the same year.
Secondly, retrieving those keywords in the Web of Science
to find out where those top talents of this specific field are.
Find the top talents by collected the information about talents’
country distribution, the institutions distribution and so on
through the high-impact literature collection. Among them, the
top talent refers to the first author or the communication author
of the high-impact literatures.
Finlly, Figure out the brain gain index to determine the top
talents introduction demand of a certain country. The brain gain
index is calculated as following formulas:
Iik = (Twk / Tik) / (Pw / Pi) (1)
Among them, Iik means the brain gain index value of
country (i) in the field (k), Twk means the number of world’s
top
talents in the field (k), Tik means the number of country’s (i)
top
talents in the field (k), Pw means the world population, Pi
means the country’s (i) population. If Iik was more than 1, that
means the country (i) has less top talents in the field (k),
therefore the talent introduction demand will be relatively
strong. In contrast, if Iik was less than 1, that means the
country’s (i) has greater top talents in the field (k) than the
world average, and the talent introduction demand will not be

so strong.
Additionally, the literature information mainly from the ISI
Web of Science (SCI, CPCI-S), and the the data analysis and
visualization tools are TDA and Tableau.
2017 Proceedings of PICMET '17: Technology Management for
Interconnected World
978-1-890843-36-6 ©2017 PICMET
III. CASE STUDY
Using 3-F method to analysis the top talents introduction
demand in the big data and cloud computing field. We
collected the high-impact literatures from January 1, 2006 to
July 31, 2016. The literature Language was English and the
literature type was article. Combining with the above
conditions, we got 546 high-impact literatures in the big data
and cloud computing field. Then the high-frequency keywords
have been obtained (Table 1) and served as the research
hotspots set.
TABLE I. THE RESEARCH HOTSPOTS OF THE HIGH-
IMPACT LITERATURES IN
BIG DATA AND CLOUD COMPUTING FIELD
Order Keywords Frequency
1 cloud computing 48
2 big data 24
3 virtualization 11

4 cloud manufacturing 9
5 internet of things (IoT) 8
6 mobile cloud computing 8
7 bioinformatics 6
8 climate change 6
9 Hadoop 6
10 software-defined networking (SDN) 6
……
At the same time, we displayed the frequency distribution
of research hotspots in the way of cloud chart(fig. 1).
Fig. 1. The cloud chart of research hotspots that in the field of
big data and
cloud computing
Then, we find the information about nationality (Table 2),
institutes (Table 3) of top talents in the high-impact literature
collection. Results showed there were 662 top talents
worldwide in the big data and cloud computing field. The top
ten countries or regions who had the most top talents were the
United States, P.R.China, the United Kindom, Germany, the
Netherlands, France, Canada, Australia, Italy and Switzerland
and Spain tied for the tenth.

TABLE II. THE NATIONALITY DISTRIBUTION OF TOP
TALENTS IN THE BIG
DATA AND CLOUD COMPUTING FIELD
Order Country or Region Number of the top talent
1 US 268
2 P. R. China 48
3 UK 47
4 Germany 39
5 Netherlands 28
6 France 27
7 Canada 22
8 Australia 21
9 Italy 19
10 Switzerland 13
Spain 13
12 Japan 10
13 Korea 8
Malaysia 8
15 Singapore 7
New Zealand 7
17 Austria 6
18 Belgium 5
Sweden 5
India 5
Chinese Taipei 5
……
TABLE III. THE INSTITUTES DISTRIBUTION OF TOP
TALENTS IN THE BIG
DATA AND CLOUD COMPUTING FIELD
Order Country or Region Number of the top talent
1 Harvard University (US) 10

2 Purdue University (US) 7
University of Malaya (Malaysia) 7
University of Maryland (US) 7
Unversity of Melbourne (Australia) 7
University of Missouri (US) 7
7 Oxford Unversity (UK) 6
8 Chinese Academy of Sciences (P.R.China) 5
ETH Zurich (Switzerland) 5
Massachusetts General Hospital (US) 5
Northwestern University (US) 5
University of British Columbia (Canada) 5
UC, Berkeley (US) 5
UC, San Diego (US) 5
University of Texas at Austin (US) 5
University of Washington (US) 5
……

From table 2 and 3 we can see that China was in the second
place worldwide. However, China's top talent is much less than
the United States. In addition, the overall strength of Chinese
research institutions is not strong. So, whether China should
introduce top talents from other countries is need to be
discussed.
According to the formula of the brain gain index, and using
the world population data as well as the Chinese mainland
population data released by the World Bank, the value of the
Chinese brain gain index of big data and cloud computing was
2.61. In comparison, the brain gain index value of the United
States was 0.11. That means China need to introduce top talent
in the field of big data and cloud computing.
IV. CONCLUSION
In the knowledge economy era, the international flow of top
talent has become convenient and frequent. Facing the world's
top talent shortage, China and the world's major countries have
developed overseas top talent introduction programs. Until
2007, almost all European countries had introduced some
skillselective migration policies in order to attract the top
talents. To make the overseas top talent introduction programs
more effective and targeted is helpful for occupying the
strategic high ground in the global top talent competition.
This paper improved the traditional talent evaluation
function of bibliometric method, and presented the 3-F analysis
method, which was applied to analyze the demand of top
talents. The 3F method could help the government official to
make decision whether need to introduce top talents to develop
a new industry field and lock these top talents geographic
location.

REFERENCES
[1] .Xu, B.M., X.G. Ni. Development Trend and Key Technical
Progress of
Cloud Computing[J]. Bulletin of the Chinese Academy of
Sciences,
2015. 30(2), pp. 170-180.
[2] Xiao, Y., Y. Cheng, Y.J. Fang, Research on Cloud
Computing and Its
Application in Big Data Processing of Railway Passenger Flow,
in
Iaeds15: International Conference in Applied Engineering and
Management, P. Ren, Y. Li, and H. Song, Editors. 2015, Aidic
Servizi
Srl: Milano. pp. 325-330.
[3] Zhu, Y.Q., P. Luo, Y.Y. Huo et. al, Study on Impact and
Reform of Big
Data on Higher Education in China, in 2015 3rd International
Conference on Social Science and Humanity, G. Lee and Y. Wu,
Editors. 2015, Information Engineering Research Inst, USA:
Newark. p.
155-161.
[4] Wang, X., L.C. Song, G.F. Wang et.al. Operational Climate
Prediction
in the Era of Big Data in China: Reviews and Prospects[J].
Journal of
Meteorological Research, 2016. 30(3), pp. 444-456.
[5] Dahlman, C., L. Westphal, Technological effort in industrial
development——An Interpretative Survey of Recent
Research[R]. 1982.

[6] Cerna, L., M. Czaika, European Policies to Attract Talent:
The Crisis
and Highly Skilled Migration Policy Changes, in High-Skill
Migration
and Recession. 2016, Springer. pp. 22-43.
[7] Jin, X., B.W. Wah, X. Cheng et. al. Significance and
challenges of big
data research[J]. Big Data Research, 2015. 2(2), pp. 59-64.
[8] Fang, H., Z. Zhang, C.J. Wang et. al. A survey of big data
research[J].
IEEE Network, 2015. 29(5), pp. 6-9.
[9] Cole, F.J., Eales, N. B. The history of comparative
anatomy[J]. science
Progress, 1917. 11, pp. 578-596.
[10] Gallardo-Gallardo, E., S. Nijs, N. Dries et. al. Towards an
understanding
of talent management as a phenomenon-driven field using
bibliometric
and content analysis[J]. Human Resource Management Review,
2015.
25, pp. 264-279.
[11] Clarke, B.L. Multiple authorship trends in scientific
papers[J]. Science,
1964. 143(3608), pp. 822-824.
[12] Gonzalez-Valiente, C.L., J. Pacheco-Mendoza, R.
Arencibia-Jorge. A
review of altmetrics as an emerging discipline for research
evaluation[J].
Learned Publishing, 2016. 29(4), pp. 229-238.

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Please make your initial post and two response posts
substantive. A substantive post will do at least TWO of the
following:
Ask an interesting, thoughtful question pertaining to the topic.
Answer a question (in detail) posted by another student or the
instructor.
Provide extensive additional information on the topic.
Explain, define, or analyze the topic in detail
Share an applicable personal experience
Provide an outside source (for example, an article from the
Library, Google Scholar) that applies to the topic, along with
additional information about the topic or the source (please cite
properly in APA)
Make an argument concerning the topic.

At least one scholarly source should be used in the initial
discussion thread.
Be sure to use information from your readings and other sources
from the UC Library. Use proper citations and references in
your post.
In this week's reading, the concept of 3-F Method is introduced.
Discuss the purpose of this concept and how it is calculated.
Also perform your own research/analysis using these factors and
provide your assessment on whether the United States need to
introduce top talents in the field of big data and cloud
computing by using bibliometrics.
ESSAY ON SECTION 5: INFORMAL PROCESSES AND
DISCRETION (Due 11:55 pm, May 13)
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.

as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
SCENARIO: You work for the Oregon Liquor Control
Commission(OLCC) in the Recreational Marijuana Licensing
Office(RMLO). You have many applicants and the place is
short-staffed since you loaned workers to the Unemployment
Division.
You have two scheduled video meetings today. The first is with
a Ms. Eleanor Rigby. Her e-mail says that she is an 80-year old
grandmother who needs some extra income to cover her
grandson’s tuition. She wants to explore whether it would be a
good idea for her to open a marijuana dispensary in Monmouth.
The second meeting will be with Bill Sellsmore from Curaleaf,
a marijuana business worth well over $500 million. Sellsmore is
interested in getting the OLCC to guarantee the licensing of ten
new retail outlets before they invest in Oregon anymore.
While the basic law is that dispensaries must be at least 1,000
feet from a school, there is the possibility for the RMLO to
grant limited exceptions. These are based on agency

discretionary judgement that the retail facility will not operate
in a way that attracts attention from students.
Here are the questions you must answer. If possible, connect
your answers to the scenario above.
1. How important are informal processes to public
administration? What factors influence the outcomes of
informal processes, such as the meetings you have scheduled?
2. What happens if you provide inaccurate advice during these
meetings and Rigby or Sellsmore make a bad business decision
as a result?
3) How do the courts generally review agency discretionary
actions, as demonstrated by the federal court? What could the
RMLO get wrong and have a licensing decision overturned in
judicial review?
Notice of Contested Case Rights and Procedures
(OAH Hearings)
____________
Pursuant to ORS 183.413(2), you are entitled to be informed of
the following:
1. Time and place of hearing. (Choose one of the following
options. Option A is for hearings
already scheduled; Option B is for hearings not yet scheduled.)
Option A:
The hearing is scheduled at [time and date] at [place].

Option B:
The hearing is not yet scheduled. You will receive notice from
the Office of Administrative Hearings
of the time, date and place of the hearing once the hearing is
scheduled.
2. Issues to be considered at hearing. (Choose one of the
following options that is most appropriate
for your agency’s situation.)
Option A:
The issues to be considered at hearing are set forth in the
notice issued by the agency entitled
_____________and dated _________, and those issues related
the notice that are properly before the
presiding officer to this proceeding.
Option B:
The issues to be considered at hearing are [summarize issues
stated in the notice, for example,
“Whether your insurance agent’s license should be revoked for
misappropriation of money belonging to
a policyholder.” Or, “Whether your claim for benefits should be
denied on the ground that you are not
eligible because ….”]
You have the right to respond to all issues properly before the
presiding officer and to present evidence and
witnesses on those issues.
3. Authority and Jurisdiction for Hearing. The matter set for
hearing is a contested case. The
hearing will be conducted as provided in Chapter 183 and
[insert agency’s statutory authority] of the

Oregon Revised Statutes; the administrative rules of [agency]
, OAR [insert rule numbers] , and the
Attorney General’s Office of Administrative Hearing Rules,
OAR 137-003-0501 to 137-003-0700]. [If
there are other laws involved, add: Other laws involved
include: insert other laws here.]
4. Right to attorney. You may be represented by an attorney at
the hearing. Parties are [not]
ordinarily and customarily represented by counsel. You are not
required to be represented by counsel,
unless you are an agency, trust, corporation or association. If
you are not represented at the hearing and
during the hearing you determine that representation by an
attorney is necessary, you may [not] request a
recess to allow you an opportunity to secure the services of an
attorney. The hearing officer or
administrative law judge will decide whether to grant such a
request. [Agency] will [not] be
represented by an attorney.
Legal aid organizations may be able to assist a party with
limited financial resources.
5. Administrative Law Judge. The person presiding at the
hearing is known as the administrative
law judge (ALJ). The ALJ will rule on all matters that arise at
the hearing, subject to agency consideration
of matters transmitted for agency decision under OAR 137-003-
0635 or matters subject to agency review
under OAR 137-003-0640 or OAR 137-003-0570. The ALJ will
be assigned by the Chief ALJ from the
Office of Administrative Hearings (OAH). The OAH consists of
employees of, and independent contractors
with, the Chief ALJ. The ALJ [has/does not have] the authority
to make the final decision in the case. [If the
ALJ does not have final decision-making authority add: The

final determination will be made by
board/commission or title/position of agency decision-maker.]
6. Discovery. Discovery [is/is not] permitted in this
proceeding. If discovery is permitted, include
the following: Discovery is permitted as provided in OAR 137-
003-0570, OAR 137-003-0572 and OAR
137-003-0573, and (cite agency rule(s) on discovery adopted
pursuant to OAR 137-003-0570(8), if any.)
You must first ask the agency [and the other parties] to provide
you with copies of documents or other
information relevant to this proceeding. If you are not satisfied
with the response of the agency [or the
other parties], you may ask the ALJ to order production of the
information you seek in accordance with
applicable rules.
7. Witnesses. A witness must testify under oath or affirmation
to tell the truth. The agency or ALJ
will issue subpoenas for witnesses on your behalf upon a
showing that their testimony is relevant to the case
and is reasonably needed by you to establish your position. If
you are represented by an attorney, your
attorney may issue subpoenas for attendance of witnesses at
hearing. Payment of witness fees and mileage
to the person subpoenaed is your responsibility.
8. Order of evidence. A hearing is similar to a court proceeding
but is less formal. Its general purpose
is to determine the facts and whether the [agency’s]
proposed action is appropriate. The order of
presentation of evidence is normally as follows:
a. Testimony of witnesses and other evidence of [agency]
in support of its proposed action.

b. Testimony of your witnesses and your other evidence.
c. Rebuttal evidence by the [agency] and by you.
9. Burden of presenting evidence. The burden of presenting
evidence to support an allegation or
position rests upon the proponent of the allegation or position.
If you have the burden of proof on an issue,
or if you intend to present evidence on an issue in which the
agency has the burden of proof, you should
approach the hearing prepared to present the testimony of
witnesses, including yourself, and other evidence
that will support your position. All witnesses are subject to
cross-examination and also to questioning by the
ALJ.
10. Admissible evidence. Relevant evidence of a type
commonly relied upon by reasonably prudent
persons in the conduct of their serious affairs is admissible and
will be received. Evidence that is irrelevant,
immaterial, or unduly repetitious is excluded. Hearsay evidence
is often admissible. The fact that it is
hearsay generally affects how much reliance the agency or ALJ
will place on it in reaching a decision.
There are four kinds of evidence:
a. Knowledge of the agency or ALJ . The agency or ALJ may
take “official notice” of facts based on
the agency’s or ALJ’s knowledge in a specialized field. This
includes notice of general, technical or
scientific facts. The agency or ALJ may also take “judicial
notice” of a fact that is not subject to
reasonable dispute in that it is generally known or is capable of
accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned. You will be informed if the
agency or ALJ takes “official notice” or “judicial notice” of any
fact and you will be given an

opportunity to contest any facts so noticed.
b. Testimony of witnesses. Testimony of witnesses, including
you, who have knowledge of the
facts may be received in evidence.
c. Writings. Written documents including letters, maps,
diagrams and other written material may be
received in evidence.
d. Experiments, demonstrations and similar means used to
prove a fact. The results of experiments
and demonstrations may be received in evidence.
11. Objections to evidence. Objections to the admissibility of
evidence must be made at the time the
evidence is offered. Objections are generally made on one of the
following grounds:
a. The evidence is unreliable;
b. The evidence is irrelevant or immaterial and has no tendency
to prove or disprove any issue
involved in the case;
c. The evidence is unduly repetitious and duplicates evidence
already received.
12. Continuances. There are normally no continuances granted
at the end of the hearing for you to
present additional testimony or other evidence. However, if you
can show that the record should remain
open for additional evidence, the ALJ may grant you additional
time to submit such evidence.
13. Record. A record will be made of the entire proceeding to
preserve the testimony and other
evidence for appeal. This may be done by use of a tape or
digital recorder or court reporter. The record is
generally not transcribed, unless there is an appeal to the Court

of Appeals. However, you may obtain a
copy of the tape recording upon payment of the costs of making
a copy of the tape. If a court reporter is
used, you may obtain a transcript or a copy of the court
reporter’s transcript upon payment of a transcription
fee or other fee that the parties may agree upon.
14. Proposed Order and Exceptions. (If the ALJ issues a final
order, skip directly to “Final Order.”).
The ALJ will issue a proposed order in the form of findings of
fact, conclusions of law and recommended
agency action. You will be provided with a copy and you will
be given an opportunity to make written
objections, called “exceptions,” to the ALJ’s recommendations.
You will be notified when exceptions to the
proposed order must be filed. [If the agency allows oral
argument, which is optional, add: You will be
notified when you may appear and make oral argument to the
agency on your exceptions.]
15. Final Order. (Choose one of the following options.
Alternative A is for cases where an ALJ
issues a proposed order and the agency issues the final order.
Alternative B is for cases where an ALJ
issues a final order.)
Alternative A: The agency will render the final order in this
case. The agency may modify the
proposed order issued by the ALJ. If the agency modifies the
proposed order in any substantial manner,
the agency in its order will identify the modification and
explain why the agency made the
modification. The agency may modify a proposed finding of

“historical” fact only if the proposed
finding is not supported by a preponderance of the evidence in
the record.
Alternative B: The ALJ will render the final order in this case.
Because the ALJ will issue the
final order there will be no opportunity for you to object to the
order or to present additional arguments
prior to issuance of the order.
Note: Some agencies have adopted rules that require a party to
ask for reconsideration before seeking
judicial review. Agencies that impose this additional
requirement should explain the requirement and the
procedure for seeking reconsideration, and cite the applicable
agency rule.
16. Appeal. If you wish to appeal the final order, you must file
a petition for judicial review with the
Oregon Court of Appeals within 60 days after the final order is
served upon you. See Oregon Revised
Statutes 183.482.
NOTE: The Notice of Contested Case Rights and Procedures
must be served personally or by mail to the
parties before the commencement of the hearing. ORS 183.413.
We recommend that the notice be
enclosed with the notice of the time and date of the hearing or
earlier.
The Supreme Court and Administrative Law, 2018-2019 Session
As the ultimate interpreter of the US Constitution, the Supreme
Court of the United States (SCOTUS) sets to most fundamental

limits and requirements for administrative action. The Court
also is the final word on who gets standing and what rules lower
courts should apply when judging administrative behavior.
The articles below discuss the 2018-2019 SCOTUS decisions
affecting the administrative process. The first is from an
environmental law website, Greenwire. This article by Ellen
Gilmer notes that the court has not yet swept away the
principles of court deference to agency factual judgements. Two
precedents are notable for establishing this deference. You
already should be aware of the Chevron(1984) deference, where
SCOTUS endorses the basic concept that courts should defer to
agency interpretations of statutes unless they are unreasonable.
This idea was expended to endorse that courts defer to agency
interpretations of existing administrative rules as well in the
Auer(1997) case.
Conservatives who fear or oppose what they call the
“administrative state”(a runaway uncontrolled bureaucracy)
hope that the addition of Gorsuch and Kavanaugh to SCOTUS
would lead to the overturn of this deference. As the Kisor v.
Wilkie(2020) case shows, the court is not quite ready to go so
far, yet. So deference to agency expertise remains a basic court
position, for now, but the agency can only expect deference
under more limited conditions. The court also did not take on
the question of when Congress has given too much discretionary
power to agencies (the “non-delegation doctrine”) when it had
the chance. The court also did not accept a Trump
administration effort to include a citizenship question on the
2020 census because it was promoted on false pretenses. This
could be a notable precedent.
SCOTUS sent the standing case regarding the Eugene youth’s
case contending the United States was negligent in responding
to climate change, Juliana v United States, back to the Ninth
Circuit for re-consideration. As the final article below indicates,
the Ninth Circuit denied standing in the case, arguing that while
there is injury, and the injury is traceable to governmental

action or inaction, there is no redressability. Basically the
courts had no way to correct the injury and therefore could
provide no relief to the plaintiffs. The court basically declared
this was an issue that required a political solution.
MH, April 2020
SUPREME COURTAction-packed term fails to curb
'administrative state'
Ellen M. Gilmer, E&E News reporter Greenwire: Tuesday, July
2, 2019
The Supreme Court in Washington, D.C. Joe Ravi/Wikimedia
Commons
Environmental implications lurked below the surface of a slew
of Supreme Court disputes this term, making it one of the most
consequential in years for court watchers tracking those issues.
Big cases involving subjects as varied as sex offender
registration, old burial grounds and veterans' benefits teed up
critical administrative law and property rights questions for the
justices. Those decisions will ultimately sway litigation related
to federal environmental rules, local-level regulations and other
government actions.
Conservative lawyers had hoped the high court would seize
several opportunities to rein in the network of unelected but
powerful federal agency officials they've dubbed the
"administrative state." Their campaign has been growing for
years and seemed poised for swift successes after the addition
of Justice Brett Kavanaugh to the court. "But what's really
interesting is it's still falling short," Columbia Law School
professor Gillian Metzger said at an American Constitution
Society event last week. "The victories that conservatives really
expected to get this term did not come through."
Still, right-leaning organizations were quick to declare victory
in cases where the Supreme Court appeared to at least open the

door to scrapping a contentious deference doctrine or halting
broad delegations of power from Congress to the executive
branch. "The huge difference is [retired Justice Anthony]
Kennedy was replaced by Kavanaugh so now we have clearly a
Supreme Court majority that's highly skeptical of environmental
regulation," University of Maryland law professor Robert
Percival said. "But they indicated for now at least they're going
to be content with just incremental change."
The high court also had a chance this term to decide the fate of
the so-called kids' climate case — an unprecedented lawsuit that
will likely make its way to the justices yet again.
Finally, they handled a series of one-off environmental and
natural resources cases since the term began last October,
weighing in on tribal hunting rights, Alaska public lands,
uranium mining and a lonely frog in the South. "If this were a
baseball game, we'd say environmental law had a lot of RBIs in
this term though no grand slams," said Baker Botts LLP
attorney Jeff Wood, formerly the acting head of the Justice
Department's environment division under President Trump.
The final stretch of the Supreme Court's session, which ended
last week, featured major news in administrative law. "This was
a big term for ad law," Metzger said last week. "Ad law
professors have been very happy and tweeting away nonstop."
Major litigation over energy and environmental issues often
turns on procedural questions controlled by administrative law
doctrines, making developments in that field particularly
important to environmental lawyers.
In a one-two punch, the justices delivered two highly
anticipated decisions that disappointed conservative critics of
federal agencies. First, in Gundy v. United States, the court
declined to invoke the long-dormant "nondelegation doctrine" to
strike down a federal law related to sex offender registration.
Small-government advocates say overly broad delegations
violate the separation of powers.
Less than a week later, the court let down conservatives again
in Kisor v. Wilkie, refusing to overturn the Auer standard, a

contentious doctrine that directs judges to defer to agency
interpretations of their own rules. Electric utilities, the mining
industry, agriculture groups and others have called for Auer's
demise.
But both cases came with a silver lining for those critics.
In Gundy, the court's liberal wing voted to uphold the law at
issue but did so with the support of Justice Samuel Alito, who
indicated he would be open to revisiting the nondelegation
doctrine in a future case. Three other conservatives on the court
said they would have invoked nondelegation, which hasn't been
used successfully since the 1930s (Greenwire, June 20).
Kavanaugh didn't participate in the case. But if he feels
similarly to his conservative colleagues, the Supreme Court
could have the five votes needed to revive the doctrine in the
future — a move that could breathe new life into challenges
against environmental laws and other broad statutes. Mark
Chenoweth, head of the New Civil Liberties Alliance, said in a
recent Federalist Society teleforum that the "bat signal is out"
for other nondelegation cases to bring to the court.
Litigants have previously raised the doctrine in challenges to
EPA air regulations, the Federal Energy Regulatory
Commission's eminent domain process for pipelines and the
president's power to designate national monuments under the
Antiquities Act. "At a time when Congress is gridlocked on
issues of environmental law, striking down environmental
statutes on nondelegation grounds would really potentially
cripple the administrative state," Percival said.
In Kisor, the justices declined to grant conservatives' wish of
eliminating the agency deference standard. But Justice Elena
Kagan's opinion, joined by the court's liberal wing and, in part,
by Chief Justice John Roberts, reinforces limits on the doctrine
and sets out a five-part test for when judges should defer to
agencies (Greenwire, June 26).
That test is a high bar for agencies to clear, said Wood, the
former DOJ official. "EPA and other agencies shouldn't count
on receiving deference to their own regulatory interpretations,

at least not often," he said. "Following Kisor, agency deference
in these contexts is more the exception than the rule." That
dynamic could affect future litigation over EPA's Affordable
Clean Energy rule and its Waters of the U.S. regulation, he
added.
The Supreme Court decided a third important administrative law
case on its last day of opinions, ruling in Department of
Commerce v. New York that the Trump administration's stated
reasons for adding a citizenship question to the 2020 census
were a pretext (Greenwire, June 27).
The case is expected to reverberate in lower courts, prompting
litigants to challenge other government justifications as false
and therefore unlawful. But University of Chicago law professor
Jennifer Nou said it remains unclear just how often judges will
agree to look beyond the official administrative record in a case
to investigate alleged false motives, as was done in the census
case.Frogs and property rights
The biggest direct environmental question on the Supreme
Court's docket this term, Weyerhaeuser Co. v. Fish and Wildlife
Service, turned out to be fairly underwhelming.
On the first day of oral arguments last October, the justices
heard about the plight of the dusky gopher frog and the
Louisiana landowners whose property was affected by habitat
protections for the frog.
Experts worried the court would use the case to issue a broad
pronouncement on the government's Endangered Species Act
power. Instead, it issued a narrow ruling in November directing
lower courts to weigh the definition of habitat before reviewing
a government designation of "critical habitat." The Fish and
Wildlife Service is now reconsidering the habitat protections.
"It's technically a loss, but it's so narrow that it's a punt,"
Center for Biological Diversity attorney Collette Adkins said at
the time.
A separate holding of the decision, that the designation was
subject to judicial review, had broader reach (Greenwire, Dec.
3, 2018).

Property rights advocates scored a more decisive win in Knick
v. Township of Scott last month when the high court overturned
a precedent that made it harder for landowners to go to federal
court to challenge alleged property takings by local
governments (Greenwire, June 21).
The case, which involved Pennsylvania landowner Rose Mary
Knick's challenge to a township ordinance requiring public
access to burial grounds on private lands, could facilitate other
legal attacks on local environmental rules and zoning plans.
"It will have implications stretching far beyond Knick's farm in
Pennsylvania, giving property owners nationwide a fighting
chance to challenge government overreach and abuse," Pacific
Legal Foundation attorney Christina Martin said in an op-ed
in The Hill last week.Kids vs. climate change
Plaintiffs in the kids' climate case stand in front of the Supreme
Court. Robin Loznak/Our Children's Trust
The justices did have a chance to handle a climate case this
term, albeit briefly.
The historic kids' climate case, formally known as Juliana v.
United States, made its way to the high court via an unusual
emergency motion by the Trump administration. Government
lawyers asked the Supreme Court to stop the case from going to
trial in a federal district court in Oregon. Chief Justice Roberts
temporarily halted the proceedings, but the court ultimately
decided against intervening — instead issuing a five-page
opinion recommending that the administration seek relief at the
9th U.S. Circuit Court of Appeals (Climatewire, Nov. 5, 2018).
The decision was a short-lived victory for the 21 young
plaintiffs and their lawyers at Our Children's Trust, as the trial
ultimately was put off to allow for a 9th Circuit appeal. A
decision from the appellate court is still pending. "If the 9th
Circuit does the unexpected and allows the Juliana climate trial
to proceed, the Supreme Court will likely have yet another
opportunity to take up the case again," Wood said. "I think most
would expect the court to be more emphatic the next time in its

skepticism of the plaintiffs' theories and the need for a trial."
Vermont Law School professor Pat Parenteau warned that
another trip to the high court could be a serious threat for
environmental litigation if the 9th Circuit ultimately issues a
decision focused on whether the kids have standing to sue.
"God forbid the 9th Circuit dismisses Juliana on a very broad
standing decision and then Our Children's Trust tries to take it
up," he said. "And God help us if four of the conservative
justices say, well, now is the time once and for all not just to
end climate change standing, which has been problematic
anyway, but I would not be surprised if this court would look
for restoring some of those really high bars."Mining, hunting
and gas taxes
This term also featured a variety of environment-related cases
with narrower impacts.
In Virginia Uranium Inc. v. Warren, for example, the court
issued a split decision finding federal law does not preempt
Virginia's longtime ban on uranium mining. The ruling was a
clear win for the state, but experts questioned whether it would
have much impact on preemption issues in other contexts
(Greenwire, June 17).
Likewise in Sturgeon v. Frost, the court decided an unusual case
involving whether a moose hunter could operate a hovercraft on
a river within a national preserve in Alaska. The justices sided
with the hunter, finding his access to the river trumped the
National Park Service's desire to regulate activity on it. The
ruling relied heavily on a federal law unique to Alaska public
lands (Greenwire, March 26).
The court again sided with a hunter in Herrera v. Wyoming,
ruling the state had overstepped by criminally prosecuting a
Crow Tribe member for shooting elk within a national forest
(Greenwire, May 20). In another tribal case, the court blocked
Washington state from collecting a gas tax from a Yakama
Nation business (Greenwire, March 19). Justice Neil Gorsuch
sided with the court's liberal wing in both cases.
Finally, the court ruled that California employment protections

do not apply to offshore oil workers on the outer continental
shelf (Energywire, June 11), that an international organization
may not be immune to legal challenges related to a coal-fired
power plant in India (Greenwire, Feb. 27) and that a
government-owned electric utility may be liable for injuries
caused by power line maintenance (Energywire, April 30).
Beveridge & Diamond attorney John Cruden, who led DOJ's
environment division under President Obama, said many of
those cases were "of interest and important, but probably not
nearly as important" as a case slated for the high court's next
term: County of Maui v. Hawai'i Wildlife Fund, which considers
the appropriate scope of the Clean Water Act.
The justices are also set to hear a Superfund case next term that
could have broad impacts on environmental cleanups nationwide
(Greenwire, June
20).____________________________________ “Divided
Supreme Court Cuts Back Doctrine of Judicial Auer Deference
to Agency Interpretations of Its Own Ambiguous Rules”. The
National Law Review (Tuesday, July 2,
2019)https://www.natlawreview.com/article/divided-supreme-
court-cuts-back-doctrine-judicial-auer-deference-to-agency
On June 26, 2019, a divided Supreme Court in Kisor v.
Wilkie issued one of its most important administrative law
decisions in decades. The Supreme Court decided to uphold, but
dramatically narrow, the doctrine of judicial deference to
agency regulations, known as Auer deference, but at the same
time unanimously found for petitioner James Kisor in
overturning the Federal Circuit’s affirmance of the Board of
Veteran’s Appeals decision to deny part of his claim for
Vietnam War disability benefits. We discuss below the majority
and minority opinions on Auer deference, the narrow unanimous
holding of reversal, and the importance of this
decision.Majority Opinion Upholding Auer Deference
Justice Kagan, joined by Justices Ginsburg, Breyer, and
Sotomayor, wrote the central ruling, and Chief Justice Roberts
filed a concurring opinion. The majority opinion was based

on stare decisis and upheld the principle that courts in certain
instances are to defer to reasonable federal agency
interpretations of their own ambiguous regulations. This
deference doctrine is based on Auer v. Robbins, 519 U.S. 452
(1997) (“Auer”) (holding agency’s interpretation of its own
regulation is “controlling unless plainly erroneous or
inconsistent with the regulation”) and its predecessor Bowles v.
Seminole Rock & Sand Co., 325 U. S. 410 (1945) (“Seminole
Rock”), and is known simply as Auer deference. In this blog
post, we will refer to this part of the opinion (Section III.A) as
the "Auer Deference Opinion." While this part of the majority
opinion technically upheld Auer and Seminole Rock, it
substantially narrowed it in such a way that Justice Gorsuch,
writing for the minority, characterized Auer as “maimed and
enfeebled—in truth, zombified.”
The judicial narrowing of Auer deference in Kisor comes
through a series of gating principles or factors that must be
applied before courts are to consider applying deference
principles.
First, courts must determine that the regulation in question is
genuinely ambiguous by “exhausting all the ‘traditional tools’
of construction.”
Second, courts must determine that the interpretation is
reasonable.
Third, courts must evaluate “whether the character and context
of the agency interpretation entitles it to controlling weight.”
The interpretation is entitled to controlling weight if:
It is the “authoritative” or “official position” of the agency that
“emanate[s]” from “actors . . . understood to make authoritative
policy in the relevant context”;
The agency’s interpretation implicates its substantive expertise;
and
The agency’s interpretation reflects “fair and considered
judgment,” meaning that (1) it is not a position adopted as a
“convenient litigating position,” and (2) it is not a new
interpretation that would result in “unfair surprise” to regulated

parties.
Justice Kagan provides the following summary of these gating
factors:
“When it applies, Auer deference gives an agency significant
leeway to say what its own rules mean. In so doing, the doctrine
enables the agency to fill out the regulatory scheme Congress
has placed under its supervision. But that phrase ‘when it
applies’ is important—because it often doesn’t. As described
above, this Court has cabined Auer’s scope in varied and
critical ways—and in exactly that measure, has maintained a
strong judicial role in interpreting rules. What emerges is a
deference doctrine not quite so tame as some might hope, but
not nearly so menacing as they might fear.”
Chief Justice Roberts cast the deciding vote with the liberal
members of the Court upholding Auer deference and agreed
with the majority’s gating principles. He wrote, however, “to
suggest that the distance between the majority and Justice
Gorsuch is not as great as it may initially appear.” Notably, he
also made clear his view that the issue decided here is distinct
from the form of deference found in U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (“Chevron”)
concerning deference to an agency’s interpretation of a statute,
and that “the Court’s decision today [does not] touch
upon” Chevron deference.
Dissenting Auer Deference Opinions
Justice Gorsuch wrote the lead dissenting opinion to
the Auer Deference Opinion, joined by Justice Thomas; Justices
Kavanaugh and Alito joined for various parts and concurred
with the holding to remand, as further discussion below. Justice
Gorsuch concluded that Auer should be overturned because its
deference doctrine results in bias towards the government.
Auer requires deference to the agency even when the agency’s
interpretation does not represent the “best and fairest reading.”
Gorsuch also criticized the majority’s reliance on stare decisis,
which is the judicial principle favoring past precedents.

Fundamental to the minority opinion is that Auer deference
provides “excuses for judges to abdicate their job of
interpreting the law.”
In support of his opinion, Justice Gorsuch argued
that Auer deference doctrine is essentially a historical accident
and a doctrine of uncertain scope and application and cited one
of many law journal articles analyzing Auer deference. The
minority criticized the Court in the Auer Deference Opinion for
never squaring Auer with the principles of the Administrative
Procedures Act (see, e.g. APA §706 which requires reviewing
courts to “decide all relevant questions of law” and “set aside
agency action . . . found to be . . . not in accordance with
law”). In addition, the minority argued that Auer is
incompatible with the Constitution because it requires courts to
share judicial power with the Executive Branch rather than to
retain judicial power as assigned by Article III, § 1 of the
Constitution. Finally, Justice Gorsuch strongly criticized (in a
section not joined by Justice Alito) the majority for
upholding Auer based on stare decisis. Justice Gorsuch argued
that, unlike precedential decisions regarding a single statute or
regulation, stare decisis here would result in Auer’s interpretive
methodology applying to every future dispute over the meaning
of every regulation.
Justice Kavanaugh wrote a brief concurrence, joined in part by
Justice Alito, noting that “if a reviewing court employs all of
the traditional tools of construction, the court will almost
always reach a conclusion about the best interpretation of the
regulation at issue,” and therefore deference won’t be
required. Unanimous Judgment for Reversal
The Court unanimously agreed that the court below should
reconsider its decision. Justice Kagan reasoned that the Federal
Circuit “jumped the gun” in upholding the Board of Veteran’s
Appeals’ interpretation of the Veteran’s Administration (“VA”)
regulation concerning “relevant” records. Ambiguity did not
arise, the Court reasoned, simply because both parties insisted
that the plain regulatory language supported their interpretation

and neither struck the Federal Circuit as unreasonable. “Rather,
the court must make a conscientious effort to determine, based
on indicia like text, structure, history, and purpose, whether the
regulation really has more than one reasonable meaning.” The
Federal Circuit also failed to consider whether Congress would
intend that the VA’s interpretation receive deference. The
Court vacated and remanded for further proceedings.
Analysis
For years, conservative legal scholars have looked for ways to
cut into what has become known as the “administrative state.”
High on the list has been efforts to repeal
both Auer and Chevron deference. As we wrote here in 2015
in Developments in Judicial Deference of Administrative
Agency Actions, Justices Scalia, Thomas and Alito wrote
separate concurrences in Perez v. Mortgage Bankers
Association (“Mortgage Banker”) seeking to revisit Seminole
Rock and Justice Scalia’s own decision in Auer. Petitioner
Kisor asked the court to do exactly that in this case.
The importance of Kisor can be seen in numerous amicus briefs
and law review articles cited by both sides. All told, there were
almost 40 amicus briefs filed, with most on behalf of
Petitioner. Authors of the briefs included leading business and
conservative legal groups as the Chamber of Commerce,
Business Roundtable, Washington Legal Foundation, Center for
Constitutional Jurisprudence, Cato Institute, several
Republican-led states, and many organizations representing
regulated industries, but surprisingly no health care
organizations.
Justice Gorsuch bluntly squared the issue in his minority
opinion to the Auer Deference Opinion: “In disputes involving
the relationship between the government and the
people, Auer requires judges to accept an executive agency’s
interpretation of its own regulations even where that
interpretation doesn’t represent the best or fairest reading.” In
the minority's view, the level of deference hostility goes as far
as raising Constitutional Separation of Powers concerns, which

was hardly discussed in the Auer Deference Opinion majority.
The formal upholding of Auer deference in many respects
appears to be a pyrrhic victory as the majority has imposed
numerous analytical gating principles that now must be applied
before courts grant deference to an agency. With so many of
these principles subject to their own future judicial
interpretations, the Kisor Court may have invited haphazard,
inconsistent application. Putting aside the potential for wide-
ranging application of “traditional tools” of statutory
construction in the determination whether a regulation is
“genuinely ambiguous,” potentially ripe for varying
interpretations is the stated factor of whether “[s]ome
interpretive issues may fall more naturally into a judge’s
bailiwick” than into the area of the agency’s expertise.
Another factor given by the Court may wind up bending historic
principles is how to decide the legitimacy of an agency’s
change in position. Long-standing jurisprudence holds that an
agency is free to change its official position as long as it
reasonably explains its change. But Kisor casts a cloud. One of
its gating principles is that a regulation may not create “unfair
surprise” as when an agency changes its position, for example.
In such situations, the Court suggests that deference is not
warranted. This part of Kisor may lead to disappointment by
conservatives, who are now in power and seeking to overturn
years of “liberal” rulemaking related to environmental and
health and safety laws and who face a judiciary skeptical of
applying deference to changing agency interpretations.
Finally, we note that Chief Justice Roberts properly pointed out
that Auer deference issues are very different than those
involved in Chevron deference. Chevron requires courts to give
deference to agency interpretations of charging statutes. As
discussed in the majority Auer Deference Opinion, in which the
Chief Justice joined, it is logical to defer to the authors of the
regulation when a matter is subject to an agency’s areas of
expertise. But that same logic does not necessarily apply to an
agency’s regulation interpreting a statute. Likely for this

reason, Chief Justice Roberts set an important marker that the
majority’s Auer deference decision does not “touch upon”
Chevron deference. It appears that he may be inviting a similar
challenge to Chevron, which has been one of the highest goals
of the conservative legal movement in challenging the
“administrative state.”
©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. All Rights Reserved.
_________________________________________________
9th Circuit Decision regarding Standing for Climate Change
case: the Juliana case.
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
KELSEY CASCADIA ROSE JULIANA; XIUHTEZCATL
TONATIUH M., through his Guardian Tamara Roske- Martinez;
ALEXANDER LOZNAK; JACOB LEBEL; ZEALAND B.,
through his Guardian Kimberly Pash-Bell; AVERY M., through
her Guardian Holly McRae; SAHARAV., through her Guardian
Toa Aguilar; KIRAN ISAAC OOMMEN;TIA MARIE HATTON;
ISAAC V ., through his Guardian Pamela Vergun; MIKO V.,
through her Guardian Pamel Vergun; HAZEL V., through her
Guardian Margo Van Ummerson; SOPHIE K., through her
Guardian Dr. James Hansen; JAIME B., through her Guardian
Jamescita Peshlakai; JOURNEY Z., through his Guardian Erika
Schneider; VICTORIA B., through her Guardian Daisy
Calderon; NATHANIEL B., through his Guardian Sharon
Baring; AJI P., through his Guardian Helaina Piper; LEVI D.,
through his Guardian Leigh-Ann Draheim; JAYDEN F., through
her Guardian Cherri Foytlin; NICHOLASV.,throughhis
Guardian Marie Venner; EARTH GUARDIANS, a
No. 18-36082
D.C. No. 6:15-cv-01517- AA
OPINION

nonprofit organization; FUTURE GENERATIONS, through
their Guardian Dr. James Hansen,
Plaintiffs-Appellees,
v.
UNITEDSTATESOF AMERICA;MARY B. NEUMAYR, in her
capacity as Chairman of Council on Environmental Quality;
MICK MULVANEY, in his official capacity as Director of the
Office of Management and the Budget; KELVIN K.
DROEGEMEIR, in his official capacity as Director of the
Office of Science and Technology Policy; DAN
BROUILLETTE, in his official capacity as Secretary of Energy;
U.S. DEPARTMENT OF THE
INTERIOR;DAVIDL.BERNHARDT, in his official capacity as
Secretary of Interior; U.S. DEPARTMENT OF
TRANSPORTATION; ELAINE L. CHAO, in her official
capacity as Secretary of Transportation; UNITED STATES
DEPARTMENT OF AGRICULTURE; SONNY PERDUE, in his
official capacity as Secretary of Agriculture; UNITED STATES
DEPARTMENT OF COMMERCE;WILBUR ROSS, in his
official capacity as Secretary of Commerce; UNITEDSTATES
DEPARTMENT OF DEFENSE; MARK T.
JULIANA V. UNITED STATES 3
ESPER, in his official capacity as Secretary of Defense;
UNITED STATES DEPARTMENT OF STATE; MICHAEL R.
POMPEO, in his official capacity as Secretary of State;
ANDREW WHEELER, in his official capacity as Administrator
of the EPA; OFFICE OF THE PRESIDENT OF
THEUNITEDSTATES;U.S. ENVIRONMENTAL PROTECTION
AGENCY; U.S. DEPARTMENT OF ENERGY; DONALD J.
TRUMP, in his official capacity as President of the
United States,Defendants-Appellants.
Appeal from the United States District Court for the District of
Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted June 4, 2019 Portland, Oregon

Filed January 17, 2020
Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Josephine L. Staton,* District Judge. Opinion by
Judge Hurwitz;
Dissent by Judge Staton
* The Honorable Josephine L. Staton, United States District
Judge for the CentralDistrict of California, sitting by
designation.
4 JULIANA V. UNITED STATES
SUMMARY** Climate Change / Standing
The panel reversed the district court’s interlocutory orders in an
action brought by an environmental organization and individual
plaintiffs against the federal government, alleging climate-
change related injuries to the plaintiffs caused by the federal
government continuing to “permit, authorize, and subsidize”
fossil fuel; and remanded to the district court with instructions
to dismiss for lack of Article III standing.
Some plaintiffs claimed psychological harms, others impairment
to recreational interests, others exacerbated medical conditions,
and others damage to property. Plaintiffs alleged violations of
their constitutional rights, and sought declaratory relief and an
injunction ordering the government to implement a plan to
“phase out fossil fuel emissions and draw down excess
atmospheric [carbon d ioxid e].”
The panel held that: the record left little basis for denying that
climate change was occurring at an increasingly rapid p a c e ; c
o p i o u s e x p e r t e v i d e n c e e s t a b l i s h e d t h a t t he
unprecedented rise in atmospheric carbon dioxide levels
stemmed from fossil fuel combustion and will wreak havoc on
the Earth’s climate if unchecked; the record conclusively
established that the federal government has long understood the
risks of fossil fuel use and increasing carbon dioxide emissions;
and the record established that the government’s
** This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the

reader.
JULIANA V. UNITED STATES 5
contribution to climate change was not simply a result of
inaction.
The panel rejected the government’s argument that plaintiff s’
claims must proceed , if at all, under the Administrative
Procedure Act (“APA”). The panel held that because the APA
only allows challenges to discrete agency decisions, the
plaintiffs could not effectively pursue their constitutional
claims – whatever their merits – under that statute.
The panel considered the three requirements for whether
plaintiffs had Article III standing to pursue their constitutional
claims. First, the panel held that the district court correctly
found that plaintiffs claimed concrete and particularized
injuries. Second, the panel held that the district court properly
found the Article III causation requirement satisfied for
purposes of summary judgment because there was at least a
genuine factual dispute as to whether a host of federal policies
were a “substantial factor” in causing the plaintiffs’ injuries.
Third, the panel held that plaintiffs’ claimed injuries were not
redressable by an Article III court. Specifically, the panel held
that it was beyond the power of an Article III court to order,
design, supervise, or implement the plaintiffs’ requested
remedial plan where any effective plan would necessarily
require a host of complex policy decisions entrusted to the
wisdom and discretion of the executive and legislative branches.
The panel reluctantly concluded that the plaintiffs’ case must be
made to the political branches or to the electorate at large.
District Judge Staton dissented, and would affirm the district
court. Judge Staton wrote that plaintiffs brought suit to enforce
the most basic structural principal embedded in
6 JULIANA V. UNITED STATES
our system of liberty: that the Constitution does not condone the
Nation’s willful destruction. She would hold that plaintiffs have

standing to challenge the government’s conduct, have
articulated claims under the Constitution, and have presented
sufficient evidence to press those claims at trial.
UNITED STATES V. WINDSOR (2013)
Syllabus
UNITED STATES v. WINDSOR ( )
699 F. 3d 169, affirmed.
No. 12–307. Argued March 27, 2013—Decided June 26, 2013
The State of New York recognizes the marriage of New York
residents Edith Windsor and Thea Spyer, who wed in Ontario,
Canada, in 2007. When Spyer died in 2009, she left her entire
estate to Windsor. Windsor sought to claim the federal estate
tax exemption for surviving spouses, but was barred from doing
so by §3 of the federal Defense of Marriage Act (DOMA),
which amended the Dictionary Act—a law providing rules of
construction for over 1,000 federal laws and the whole realm of
federal regulations—to define “marriage” and “spouse” as
excluding same-sex partners. Windsor paid $363,053 in estate
taxes and sought a refund, which the Internal Revenue Service
denied. Windsor brought this refund suit, contending that
DOMA violates the principles of equal protection incorporated
in theFifth Amendment. While the suit was pending, the
Attorney General notified the Speaker of the House of
Representatives that the Department of Justice would no longer
defend §3’s constitutionality. In response, the Bipartisan Legal
Advisory Group (BLAG) of the House of Representatives voted
to intervene in the litigation to defend §3’s constitutionality.
The District Court permitted the intervention. On the merits, the
court ruled against the United States, finding §3
unconstitutional and ordering the Treasury to refund Windsor’s
tax with interest. The Second Circuit affirmed. The United

States has not complied with the judgment.
Held:
1. This Court has jurisdiction to consider the merits of the case.
This case clearly presented a concrete disagreement between
opposing parties that was suitable for judicial resolution in the
District Court, but the Executive’s decision not to defend §3’s
constitutionality in court while continuing to deny refunds and
assess deficiencies introduces a complication. Given the
Government’s concession, amicus contends, once the District
Court ordered the refund, the case should have ended and the
appeal been dismissed. But this argument elides the distinction
between Article III’s jurisdictional requirements and the
prudential limits on its exercise, which are “essentially matters
of judicial self-governance.” Warth v. Seldin, 422 U. S. 490.
Here, the United States retains a stake sufficient to support
Article III jurisdiction on appeal and in this Court. The refund it
was ordered to pay Windsor is “a real and immediate economic
injury,” Hein v. Freedom From Religion Foundation, Inc., 551
U. S. 587, even if the Executive disagrees with §3 of DOMA.
Windsor’s ongoing claim for funds that the United States
refuses to pay thus establishes a controversy sufficient for
Article III jurisdiction. Cf. INS v. Chadha, 462 U. S. 919.
Prudential considerations, however, demand that there be
“concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of
difficult constitutional questions.” Baker v. Carr, 369 U. S. 186.
Unlike Article III requirements—which must be satisfied by the
parties before judicial consideration is appropriate—prudential
factors that counsel against hearing this case are subject to
“countervailing considerations [that] may outweigh the concerns
underlying the usual reluctance to exert judicial
power.” Warth, supra, at 500–501. One such consideration is the
extent to which adversarial presentation of the issues is ensured
by the participation of amici curiae prepared to defend with
vigor the legislative act’s constitutionality. See Chadha,
supra, at 940. Here, BLAG’s substantial adversarial argument

for §3’s constitutionality satisfies prudential concerns that
otherwise might counsel against hearing an appeal from a
decision with which the principal parties agree. This conclusion
does not mean that it is appropriate for the Executive as a
routine exercise to challenge statutes in court instead of making
the case to Congress for amendment or repeal. But this case is
not routine, and BLAG’s capable defense ensures that the
prudential issues do not cloud the merits question, which is of
immediate importance to the Federal Government and to
hundreds of thousands of persons. Pp. 5–13.
2. DOMA is unconstitutional as a deprivation of the equal
liberty of persons that is protected by the Fifth Amendment.
Pp. 13–26.
(a) By history and tradition the definition and regulation of
marriage has been treated as being within the authority and
realm of the separate States. Congress has enacted discrete
statutes to regulate the meaning of marriage in order to further
federal policy, but DOMA, with a directive applicable to over
1,000 federal statues and the whole realm of federal regulations,
has a far greater reach. Its operation is also directed to a class
of persons that the laws of New York, and of 11 other States,
have sought to protect. Assessing the validity of that
intervention requires discussing the historical and traditional
extent of state power and authority over marriage.
Subject to certain constitutional guarantees, see, e.g.,
Loving v. Virginia, 388 U. S. 1, “regulation of domestic
relations” is “an area that has long been regarded as a virtually
exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393.
The significance of state responsibilities for the definition and
regulation of marriage dates to the Nation’s beginning; for
“when the Constitution was adopted the common understanding
was that the domestic relations of husband and wife and parent
and child were matters reserved to the States,” Ohio ex rel.
Popovici v. Agler, 280 U. S. 379–384. Marriage laws may vary
from State to State, but they are consistent within each State.
DOMA rejects this long-established precept. The State’s

decision to give this class of persons the right to marry
conferred upon them a dignity and status of immense import.
But the Federal Government uses the state-defined class for the
opposite purpose—to impose restrictions and disabilities. The
question is whether the resulting injury and indignity is a
deprivation of an essential part of the liberty protected by
the Fifth Amendment, since what New York treats as alike the
federal law deems unlike by a law designed to injure the same
class the State seeks to protect. New York’s actions were a
proper exercise of its sovereign authority. They reflect both the
community’s considered perspective on the historical roots of
the institution of marriage and its evolving understanding of the
meaning of equality. Pp. 13–20.
(b) By seeking to injure the very class New York seeks to
protect, DOMA violates basic due process and equal protection
principles applicable to the Federal Government. The
Constitution’s guarantee of equality “must at the very least
mean that a bare congressional desire to harm a politically
unpopular group cannot” justify disparate treatment of that
group. Department of Agriculture v. Moreno, 413 U. S. 528–
535. DOMA cannot survive under these principles. Its unusual
deviation from the tradition of recognizing and accepting state
definitions of marriage operates to deprive same-sex couples of
the benefits and responsibilities that come with federal
recognition of their marriages. This is strong evidence of a law
having the purpose and effect of disapproval of a class
recognized and protected by state law. DOMA’s avowed
purpose and practical effect are to impose a disadvantage, a
separate status, and so a stigma upon all who enter into same-
sex marriages made lawful by the unquestioned authority of the
States.
DOMA’s history of enactment and its own text demonstrate that
interference with the equal dignity of same-sex marriages,
conferred by the States in the exercise of their sovereign power,
was more than an incidental effect of the federal statute. It was
its essence. BLAG’s arguments are just as candid about the

congressional purpose. DOMA’s operation in practice confirms
this purpose. It frustrates New York’s objective of eliminating
inequality by writing inequality into the entire United States
Code.
DOMA’s principal effect is to identify and make unequal a
subset of state-sanctioned marriages. It contrives to deprive
some couples married under the laws of their State, but not
others, of both rights and responsibilities, creating two
contradictory marriage regimes within the same State. It also
forces same-sex couples to live as married for the purpose of
state law but unmarried for the purpose of federal law, thus
diminishing the stability and predictability of basic personal
relations the State has found it proper to acknowledge and
protect. Pp. 20–26.
699 F. 3d 169, affirmed.
Kennedy, J., delivered the opinion of the Court, in
which Ginsburg, Breyer, Sotomayor, and Kagan,
JJ., joined. Roberts, C. J., filed a dissenting opinion. Scalia,
J., filed a dissenting opinion, in which Thomas, J., joined, and
in which Roberts, C. J., joined as to Part I. Alito, J., filed a
dissenting opinion, in which Thomas, J., joined as to Parts II
and III.
Kennedy’s majority opinion regarding standing question:
“ ….The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in fact’—an
invasion of a legally protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent, not “conjectural or
hypothetical.” ’ Second, there must be a causal connection
between the injury and the conduct complained of—the injury
has to be ‘fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action
of some third party not before the court.’ Third, it must be
‘likely,’ as opposed to merely ‘speculative,’ that the injury will
be ‘redressed by a favor-able decision.’ ” Lujan, supra, at 560–
561 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flex-ible

“rule[s] . . . of federal appellate practice,” Deposit Guaranty
Nat. Bank v. Roper, 445 U. S. 326, 333 (1980) , designed to
protect the courts from “decid[ing] abstract questions of wide
public significance even [when] other governmental institutions
may be more competent to ad-dress the questions and even
though judicial intervention may be unnecessary to protect
individual rights.” Warth, supra, at 500.
In this case the United States retains a stake sufficient to
support Article III jurisdiction on appeal and in proceedings
before this Court. The judgment in question orders the United
States to pay Windsor the refund she seeks. An order directing
the Treasury to pay money is “a real and immediate economic
injury,” Hein, 551 U. S., at 599, indeed as real and immediate
as an order directing an individual to pay a tax. That the
Executive may welcome this order to pay the refund if it is
accompanied by the constitutional ruling it wants does not
eliminate the injury to the national Treasury if payment is made,
or to the taxpayer if it is not. The judgment orders the United
States to pay money that it would not disburse but for the
court’s order. The Government of the United States has a valid
legal argument that it is injured even if the Executive disagrees
with §3 of DOMA, which results in Windsor’s liability for the
tax. Windsor’s ongoing claim for funds that the United States
refuses to pay thus establishes a controversy sufficient for
Article III jurisdiction. It would be a different case if the
Executive had takenthe further step of paying Windsor the
refund to which she was entitled under the District Court’s
ruling.
……
(CORE OF THE SUBSTANCE OF THE DECISION)
“…..
The liberty protected by the Fifth Amendment’s Due Process
Clause contains within it the prohibition against denying to any
person the equal protection of the laws. See Bolling, 347 U. S.,
at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200–

218 (1995). While the Fifth Amendment itself withdraws from
Government the power to degrade or demean in the way this law
does,the equal protection guarantee of the Fourteenth
Amendmentmakes that Fifth Amendment right all the more
specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints
are those persons who are joined in same-sex marriages made
lawful by the State. DOMA singles out a class of persons
deemed by a State entitled to recognition and protection to
enhance their own liberty. It imposes a disability on the class by
refusing to acknowledge a status the State finds to be dignified
and proper. DOMA instructs all federal officials, and indeed all
persons with whom same-sex couples interact, including their
own children, that their marriage is less worthy than the
marriages of others. The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity. By seeking to
displace this protection and treating those persons as living in
marriages less respected than others, the federal statute is in
violation of the Fifth Amendment. This opinion and its holding
are confined to those lawful marriages.”
Dissent by Scalia on standing:
“The Court is eager—hungry—to tell everyone its view of the
legal question at the heart of this case. Standing in the way is an
obstacle, a technicality of little interest to anyone but the
people of We the People, who created it as a barrier against
judges’ intrusion into their lives. They gave judges, in Article
III, only the “judicialPower,” a power to decide not abstract
questions but real, concrete “Cases” and “Controversies.” Yet
the plaintiff and the Gov-ernment agree entirely on what should
happen in this lawsuit. They agree that the court below got it
right; and they agreed in the court below that the court below
that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of
today’s opinion, where a single sentence lays bare the
majority’s vision of our role. The Court says that we have the
power to decide this case because if we did not, then our
“primary role in determining the constitutionality ofa law” (at
least one that “has inflicted real injury on a plaintiff”) would
“become only secondary to the President’s.” Ante, at 12. But
wait, the reader wonders—Windsor won below, and so cured her
injury, and the President was glad to see it. True, says the
majority, but judicial review must march on regardless, lest we
“undermine the clear dictate of the separation-of-powers
principle that when an Act of Congress is alleged to conflict
with the Constitution, it is emphatically the province and duty
of the judicial department to say what the law
is.” Ibid. (internal quotation marks and brackets omitted).”
1
Abbott Laboratories v. Gardner
No. 39
Argued January 16, 1967
Decided May 22, 1967
387 U.S. 136
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT

Syllabus
The Commissioner of Food and Drugs, exercising authority
delegated to him by the Secretary of Health, Education, and
Welfare, issued regulations requiring that labels and
advertisements for prescription drugs which bear proprietary
names for the drugs or the ingredients carry the corresponding
"established name" (designated by the Secretary) every time the
proprietary or trade name is used. These regulations were
designed to implement the 1962 amendment to § 502(e)(1)(B) of
the Federal Food, Drug, and Cosmetic Act. Petitioners, drug
manufacturers and a manufacturers' association, challenged the
regulations on the ground that the Commissioner exceeded his
authority under the statute. The District Court granted the
declaratory and injunctive relief sought, finding that the scope
of the statute was not as broad as that of the regulations. The
Court of Appeals reversed without reaching the merits, holding
that pre-enforcement review of the regulations was unauthorized
and beyond the jurisdiction of the District Court, and that no
"actual case or controversy" existed.
Held:
1. Preenforcement review of these regulations is not prohibited
by the Federal Food, Drug, and Cosmetic Act. Pp. GO>139-
148.
(a) The courts should restrict access to judicial review only
upon a showing of "clear and convincing evidence" of a
contrary legislative intent. GO>Rusk v. Cort, 369 U.S. 367,
GO>379-380. Pp. GO>139-141.

(b) The statutory scheme in the food and drug area does not
exclude pre-enforcement judicial review. Pp. GO>141-144.
(c) The special review provisions of § 701(f) of the Act,
applying to regulations embodying technical factual
determinations, were simply intended to assure adequate
judicial review of such agency decisions, and manifest no
congressional purpose to eliminate review of other kinds of
agency action. P. GO>144. [387 U.S. 137]
(d) The saving clause of § 701(f)(6), which states that the
"remedies provided for in this subsection shall be in addition to
and not in substitution for any other remedies provided by law,"
does not foreclose pre-enforcement judicial review, and should
be read in harmony with the policy favoring judicial review
expressed in the Administrative Procedure Act and court
decisions. Pp. GO>144-146.
(e) GO>Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594,
which did not concern the promulgation of a self-operative
industry-wide regulation, distinguished. Pp. GO>146-148.
2. This case presents a controversy "ripe" for judicial
resolution. Pp. GO>148-156.
(a) The issue of statutory construction is purely legal, and the
regulations are "final agency action" within § 10 of the
Administrative Procedure Act. GO>Columbia Broadcasting
System v. United States, 316 U.S. 407, and similar cases

followed. Pp. GO>149-152.
(b) The impact of the regulations upon petitioners is sufficiently
direct and immediate as to render the issue appropriate for
judicial review at this stage. Pp. GO>152-154.
(c) Here, the pre-enforcement challenge by nearly all
prescription drug manufacturers is not calculated to delay or
impede effective enforcement of the Federal Food, Drug, and
Cosmetic Act. Pp. GO>154-155.
352 F.2d 286, reversed and remanded.
Excerpts from Majority Opinion by Justice Harlan
….
The first question we consider is whether Congress, by the
Federal Food, Drug, and Cosmetic Act, intended to forbid pre-
enforcement review of this sort of regulation [387 U.S. 140]
promulgated by the Commissioner. The question is phrased in
terms of "prohibition", rather than "authorization," because a
survey of our cases shows that judicial review of a final agency
action by an aggrieved person will not be cut off unless there is
persuasive reason to believe that such was the purpose of
Congress.
….
The injunctive and declaratory judgment remedies are
discretionary, and courts traditionally have been reluctant to
apply them to administrative determinations unless these arise
in the context of a controversy "ripe" for judicial resolution.
Without undertaking to survey the intricacies of the ripeness
doctrine{GO>15} it is fair to say that its basic rationale is to

prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete
way by the challenging [387 U.S. 149] parties. The problem is
best seen in a two-fold aspect, requiring us to evaluate both the
fitness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.
As to the former factor, we believe the issues presented are
appropriate for judicial resolution at this time. First, all parties
agree that the issue tendered is a purely legal one: whether the
statute was properly construed by the Commissioner to require
the established name of the drug to be used every time the
proprietary name is employed.{GO>16} Both sides moved for
summary judgment in the District Court, and no claim is made
here that further administrative proceedings are contemplated.
It is suggested that the justification for this rule might vary with
different circumstances, and that the expertise of the
Commissioner is relevant to passing upon the validity of the
regulation. This, of course, is true, but the suggestion
overlooks the fact that both sides have approached this case as
one purely of congressional intent, and that the Government
made no effort to justify the regulation in factual terms.
Second, the regulations in issue we find to be "final agency
action" within the meaning of § 10 of the Administrative
Procedure Act, 5 U.S.C. § 704, as construed in judicial
decisions. An "agency action" includes any "rule," defined by
the Act as "an agency statement of general or particular
applicability and future effect designed to implement, interpret,
or prescribe law or policy," §§ 2(c), 2(g), 5 U.S.C. §§ 551(4),
551(13). The cases dealing with judicial review of

administrative actions have interpreted the "finality" element in
a pragmatic way.
….
This is also a case in which the impact of the regulations upon
the petitioners is sufficiently direct and immediate as to render
the issue appropriate for judicial review at this stage. These
regulations purport to give an authoritative interpretation of a
statutory provision that has a direct effect on the day-to-day
business of all prescription drug companies; its promulgation
puts petitioners in a dilemma that it was the very purpose of the
Declaratory Judgment Act to ameliorate.{GO>18} As the
District Court found on the basis of uncontested allegations,
Either they must comply with the every time requirement and
incur the costs of changing over their promotional material and
labeling or they must follow their present course and risk
prosecution.
…..”
ESSAY ON SECTION 4: JUDICIAL REVIEW (Due 5 pm, May
6)

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