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Admin Law Final Outline Pierce (Fall 2006)

*Outline Summary
1. Challenges To & Defenses Of Agency Action: Challenging Statute, Adequacy of Process, Availability of Review, Scope of Review
2. Introduction to Agencies and Administrative Law: Agencies, Constitution, Statutes, Key Doctrine, Principles, Models, Key Functions
3. Agencies In A System Of Separated Powers: Congress, Executive, Courts
4. Agency Rulemaking: Introduction, Process, Formal, Informal, Legislative, Non-Legislative, Requirements, Benefits/Burdens, Exemptions
5. Agency Adjudication: Introduction, Formal, Informal, Constraints, Permitted, Requirements, Consistency, Controlling With Rules, Due Process
6. Availability of Judicial Review of Agency Action: Agency Action, Agency Inaction, Finality, Ripeness, Exhaustion, Standing C & Statutory
7. Scope of Judicial Review of Agency Action: APA, Chevron, Substantial Evidence, Arbitrary and Capricious, Remedies, Modern Dispute
I. Challenges To and Defenses Of Agency Action
A. Challenging the Underlying Statute Itself
1. Congress lacked the authority to delegate such legislative (rulemaking) / judicial (adjudication) power to an agency
a. Non-Delegation Doctrine
b. Intelligible Principle Requirement
c. Statutory Precision
2. Congress improperly aggrandized core executive functions for itself
a. Appointment Power
b. Presumed Removal Power
c. Commander in Chief Power
d. Executive Order Power
3. Congress improperly delegated core judicial functions to agencies
a. Private Rights Disputes
B. Challenging the Adequacy of the Process and Procedures
1. General Problems
a. Lack of Trial-Like Hearing (Formal Adjudication / Formal Rulemaking)
b. Bias and Prejudgment
c. Ex Parte Communications
2. Adjudications
a. Violated Its Own Procedural Rules
b. Violated Partys Due Process Rights (Liberty / Property)
c. Violated Required Statutory Procedures
3. Rulemakings
a. Inadequate Notice
b. Inadequate Opportunity to Comment
c. Inadequate Disclosure of Relevant Materials
d. Inadequately Foreshadowed by Proposed Rule
e. Inadequate Consideration of Comments or Alternatives
f. Inadequately Justified by the Record (or Post-Hoc)
C. Challenging the Availability of Judicial Review
1. Agency Action Is Presumptively Reviewable
2. Agency Inaction Is Presumed Unreviewable
3. Judicial Review Is Precluded By Statute 701(a)(1)
4. Decision Is Committed To Agency Discretion By Law 701(a)(2)
5. Agency Action Is Not Final
6. Agency Action Is Not Ripe For Review
7. Petitioner Has Not Exhausted Administrative Remedies
8. Petitioner Lacks Constitutional Standing (Injury In Fact, Causation, Redressible)
9. Petitioner Lacks Statutory Standing (Zone of Interests)
D. Challenging the Scope of Judicial Review
1. Agency Abused Its Discretion 701(b)(1)
2. Agency Acted Arbitrarily and Capriciously
a. Failed To Enact the Clear Intent of Congress
b. Failed To Engage in Reasoned Decision Making
c. Failed To Adequately Consider Comments
d. Failed To Provide Adequate Basis and Purpose
e. Failed To Consider or Rebut Key Alternatives
f. Failed To Develop Adequate Record Supporting Decision
g. Failed To Weigh High Costs Against Uncertain Benefits
h. Failed To Explain Departure From Precedents and Prior Policies
3. Court Abused its Discretion
a. Failed To Enforce the Clear Intent of Congress
b. Failed To Defer to Reasonable Agency Interpretation
c. Impermissibly Added New Procedural Requirements

II. Introduction to Agencies and Administrative Law

A. Agencies (APA 551): created by statute, agencies are govt. authorities that are not the legislature, courts, territorial governments, or president
1) Executive Agencies: located in exec, generally w/ 1 person heading the agency (often cabinet level) whos removable by prez at will
2) Independent Agencies: multi-member agencies, vacancies filled by Prez w/ Senate confirmation, no more than bare majority of
members of same party, serve staggered fixed terms, removable by prez only for good reason
B. Constitution: makes no reference to agencies, but agency action can implicate due process (especially adjudication)
1) Is Due Process Implicated? Protected liberty & property interests (statutory (Goldberg, 1970) & other entitlements (Roth, 1972)
2) If Yes, What Procedures Are Required? Balance private interests affected, the risk of erroneous deprivation through the existing
procedure and the value of more process, and the governments interest (includes fiscal/admin burdens) (Matthews, 1976)
C. Statutes: shape agency action, especially the APA (1946) which imposes a set of procedures and provides for judicial review
1. APA 553: rulemaking must afford opportunity for N&C & final rule must include concise general statement of its basis & purpose
2. APA 554: adjudication must note time, place, nature, jurisdiction, authority, matters of fact/law for hearing & chance to respond
2. APA 555: requiring only minimal procedures in informal adjudications
3. APA 556-557: formal adjudication/rulemaking trial-like procedures (e.g. on the record only after opportunity for agency hearing)
4. APA 701: judicial review provisions apply unless statute precludes it or action is committed to agency discretion by law
5. APA 704: actions are reviewable if made reviewable by statute or final agency action for which theres no adequate court remedy
6. APA 706: courts can strike down agency action thats A&C, abuse of discretion, not in accordance w/ law, contrary to Cal rights, in
excess of statutory jurisdiction, w/o proper procedure, unsupported by substantial e (formal), or unwarranted by facts (in de novo review)
D. Key Doctrines
1. Agency action is presumptively reviewable (Abbott Labs, 1967)
2. Agency inaction is presumptively unreviewable (Heckler v. Chaney, 1985)
3. Agencies can choose to act via rulemaking or adjudication (Chenery, 1947)
4. Agencies must disclose the materials upon which rules are based (Nova Scotia Food, 1977)
5. Courts cannot add procedural requirements to agency action (VT Yankee, 1978)
6. Courts must set aside agency action that is arbitrary and capricious (State Farm, 1983)
7. Courts must uphold any reasonable agency interpretation of an ambiguous statute (Chevron, 1984)
8. Agencies must ensure due process by following their own procedural rules, statute, and the due process clause
9. Agencies must provide a record that explains the basis of their decision (Overton Park, 1971)
10. Agency decisions must be sufficiently justified (Chenery, 1947)
11. Agencies cannot issue a final rule inadequately foreshadowed in a proposed rule (CT Light)
12. Agencies can announce new policies in adjudications (Chenery, 1947)
13. Courts must judge propriety of agency actions on grounds cited by agency in record and not later justifications (Chenery, 1947)
14. Government will use Chevron to defend agency action and Heckler to defend agency inaction
E. Agency Structure & Principles
1. Separation of Functions (554D): internal personnel - adjudicators, prosecutors, investigators - are separated to promote neutrality
2. Role of ALJ: APA protects ALJs from some agency interference (tension: adjudicatory independence vs. managerial responsibility)
3. Role of Agency: agency decisions are based on records created in ALJ proceedings, briefs filed, oral arguments, but an agency is free to
accept or reject an ALJs findings of fact and conclusions of law (agency has all the powers it would have in making the initial decision)
F. Models of Government Action
1. Judicial: closed & politically neutral (e.g. trials)
2. Legislative: open & intensely political (e.g. lobbying, televised)
3. Bureaucratic: impersonal & institutional with objectively verifiable criteria (e.g. measurements, data)
G. Key Agency Functions: agencies adjudicate disputes with individuals and announce and apply generally applicable rules of conduct
1. Formal Adjudication (554-57): trial-like proceedings required if statute says on the record only after opportunity for agency hearing
2. Informal Adjudication (555): (majority of agency decisions are made through this process) whenever statute authorizes adjudication
but w/o magic words requiring formal, trial-like procedures requires in 554-557, more informal procedures apply (APA: few guidelines)
3. Informal Rulemaking (553): notice (time/place), comments (read/consider), issue final rule (similar process to legislative process)
4. Formal Rulemaking (553, 556-57): notice, comments, final rule, and oral evidentiary hearing
H. Scope of Agency Action
1. Rulemaking & Adjudication: agencies are the dominant adjudicators & rule-makers participating in 100 times more adjudications than
courts and 100 times more rulemakings than Congress (e.g. CMMS = 6 million; SSA = 2 million)
2. Bureaucratic Action (SSA): 3 million decisions a year are made by the initial agency bureaucracy, 300K are appealed to ALJs, 30K are
then appealed to an agency Appeals Council, and of those 10K are reviewed in federal district courts
I. Distinguishing Between Rulemaking and Adjudication
1. Rule: agency statement of general or particular applicability & future effect designed to implement, interpret, or prescribe law or policy
2. Adjudication: application of a statute or other legal standard to a given fact situation involving particular individuals or parties
3. Agency Discretion: agency has significant flexibility to use rulemaking or adjudication (Chenery 1947; Bell Aerospace, 1974) EXCEPT
a. Congress Can Explicitly Require Agencies to Act By Rule: (e.g. CAA ambient air stds, Medicare reimbursement)
b. Agencies Cant Disperse $ Ad Hoc: BIA must announce std for dispensing welfare rather than deciding eligibility on ad hoc
basis that denies needy Indian who moved off-reservation arbitrarily (Morton v. Ruiz, 1974 Blackmun)
c. Limited Retroactivity: can apply rules retroactively in adjudications to bind the parties to the case, which is not allowed in
issuing legislative rules which can only have future effect (Georgetown 1988)
4. Agency Preference for Adjudication: quicker & cheaper than rulemaking after State Farm, rules can be applied retroactively
(Georgetown, 1988), and its less transparent (agencies dont want to be held politically accountable for policy decisions)

III. Agencies In A System Of Separated Powers

A. Congressional Limits on Agency Power
1) Constitutional Power: all legislative power shall be vested in a Congress
2) Delegation Required: agencies can only act to the extent that theyve been lawfully delegated their power (non-delegation doctrine)
3) Delegation Concerns
a. Rulemaking as Abdication of Legislative Power: Whether Congress has given an agency so much rulemaking discretion that
Congress has abdicated its responsibility to exercise all legislative powers as granted by the Constitution
b. Adjudication as Usurping Judicial Power: Whether Congress has given an agency so much adjudicatory power that
Congress has undermined the federal courts authority to exercise the judicial power as granted by the Constitution
4) Intelligible Principle Requirement: modern delegations of legislative power to agencies will be upheld so long as Congress states
some intelligible principle that guides agencys decision-making & even just & reasonable is okay (J.W. Hampton, 1928)
a. Minimal Limits: SC only once invalidated Congress delegation of policy power to agencies as too broad (Schechter, 1935)
(invalidated NIRAs creation of private boards of producers to determine permissible output & pricing of every good sold in US)
b. Statutes Can Employ Rough Proxies: Congress can pass laws that use rational factors that reasonable correlate with their
goals even if they are not perfect measures for achieving them
i. Rational Proxy Examples: 16 year old driving age, 18 voting age, 21 drinking age (these are all allowed even
though some people arent ready until later and others are ready before these ages)
ii. Irrebuttable Presumption Doctrine Is No Longer Good Law: the irrebuttable presumption doctrine required a
proxy in a statute to be necessarily or universally true to pass muster but it is no longer required
-Example: food stamp provision meant to block college kids of rich parents from being eligible didnt rest on
irrebuttable presumption cuz tax dependency one year isnt always related to need of dependent the
following year; led DOA to deny food stamps to a poor grandma w/ 12 kids on $57 a month (Murry, 1973)
c. Congress Can Broadly Delegate Price Setting: statute delegating power to set all wages & prices to Nixon & used for wage
freeze upheld, where only limits were to avoid gross inequities & 6-month sunset provision (Amalgamated Meat, D.C. 1971)
i. Alleged Safeguards: limited duration, foreign relations, implicit fair & equitable standard, allowed judicial review
d. Congress Can Prioritize Broad Non-Economic Goals: CAA properly delegated legislative power to EPA to make air quality
standards to protect public health, w/o considering costs given statutory language & context (Whitman v. Am Trucking, 2001)
e. Rationale for Clear Statutory Standards: broad delegations of legislative power absent clear standards prevents political
accountability and fosters an environment in which corruption, cronyism, and patronage can thrive
f. Problems with Unclear Statutory Standards: cant determine the applicable standards (courts), conform behavior to meet
them (private parties), properly carry them out (executive), or effectively monitor or reform them (legislature)
5) Statutory Precision: Congress can & often does mandate specific commands to agencies that may become obsolete, unproductive, illfitting, or hard to modify or remove, but courts pretty much let Congress struggle to craft optimal standards
a. Delaney Clauses (Classic Example of Statutory Precision): barred approval of food or color additives, drugs or pesticides
found to induce cancer in man or animals w/o consideration of scope of risk to humans or if benefits outweighed the risks
i. Saccharin Ban (1977): limited knowledge of cancer & growing fear of deadly carcinogens led to inflexible ban
despite benefits to diabetics that outweighed minimal risk of cancer (ultimately re-worded so statute wouldnt apply)
b. Modern Health Tradeoffs (Risk-Risk): in 1996 Public Citizen sued FDA to require removal of most pesticides from market,
but FDA believed that would massively increase incidence of cancer by reducing availability of produce & increasing its costs
B. Statutory Environment of Federal Administration
1) Statutes Promoting Procedural Fairness and Openness
a. Minimum Procedures for Formal Actions: all federal administrative tribunals and officials are subject to uniform
requirements in formal rulemaking or formal adjudication w/ an opportunity for court review of agency compliance (APA, 1946)
b. Transparency & Disclosure: agencies are required to publish agency rules (FRA, 1935), disclose requested records (FOIA,
1966), and hold public meetings with advance notice (GISA, 1976)
2) Procedural Statutes With Substantive Goals
a. Hurdles to Agency Action: agencies must study & consider alternatives when burdening environment (NEPA 1969), small biz
(RFA 1980), private sector (PRA 1980), or state/local govt (UMRA 1995) using high-quality data (DQA 2000)
3) Statutes Safeguarding the Integrity of Agency Decision Makers
a. Civil Service Security: stifle partisan appointment/removal (CSRA, 1978) & protect whistleblowers (WPA, 1989)
b. Stop Fraud, Waste, Abuse: disclose $ holdings (EIGA, 1978), use IGs to oversee, audit, prosecute (IGA, 1978)
C. Other Legislative Influence
1) Conducting Oversight: hearings, inquiries, casework monitoring
2) Imposing Deadlines: Congress can set statutory deadlines requiring agency action (e.g. w/in 120 days) though courts usually only
impose good faith efforts on agencies to meet them
3) Setting Legislative Defaults: Congress can impose defaults, like a Hammer provision, making proposed regs final if after a certain
period of time (e.g. 2 years) the agency fails to have implemented regs (used by Congress to prevent agency inaction)
4) Defining Agency Powers: Congress can pass statutes giving agencies more or less power (e.g. rulemaking, litigation authority)
(e.g. gave DOL formal rulemaking power in Walsh-Healy Act on prevailing wage challenges to claim support for pro-union & anti-union)
5) Directing Appointment of Inferior Officers: Congress can direct the appointment of inferior officers by Prez, courts, or dept heads
6) Limiting Presidential Removal Power: Congress can limit Prezs power to remove to for cause w/ good functional reasons that dont
interfere with Prezs performance of Constitutional duties (e.g. court-appointed independent counsel to investigate executive wrongdoing)
7) Making Appropriations & Confirmations: Congress can use the appropriations process (increase, decrease, riders) and the
confirmation process (secure favors) for leverage over agencies
8) Allocating Litigation Authority: Congress can allocate litigating authority between DOJ & agencies (DOJ guards right to go b4 SC)

D. Limitations on Congressional Influence

1) Separation of Powers (Power Grabs vs. Adding Checks): SC has struck down acts by Congress that usurp executive power for itself,
while upholding acts limiting executive power in a way that adds checks that Congress itself doesnt control
Power Grabs (Congressional appropriations to itself of core Presidential functions will likely be struck down)
a. Legislative Veto Unconstitutional: Congress cant retain for itself a right to veto executive action involving deportation if it
strips the Prez from a Constitutionally required process (e.g. violates presentment and bicameralism) (Chadha, 1983, formalist)
i. Congressional Review Act (1996): authorized Cong veto consistent w/ bicameralism & presentment, but has only
been used once (e.g. Repub Cong revoked OSHA ergonomic rules biz thought too costly after Bush was elected)
b. Controlling Spending Through Comptroller Unconstitutional: Congress can require Prez to cut spending, make CG
removable only by its own joint resolution (makes CG its agent), but CG cant then determine spending levels for prez since
thats an exec decision (e.g. cant delegate to its own agent power to make core executive decisions) (Bowsher, 1986, formalist)
c. Barring Presidential Removal Absent Senate Confirmation Unconstitutional: Congress cant wholly block executive
removal of a postmaster by passing statute that requires Senate confirmation prior to presidential removal (Myers, 1926)
d. Having Congressmen Serve on Administrative Bodies Unconstitutional: Congress cant appoint its own members to an
administrative body handling airplane noise from D.C. area airports (MWAA v. Citizens for Abatement of Aircraft Noise, 1991)
Adding Checks (blending judicial, legislative, executive functions may be upheld especially when check comes from courts)
a. Court-Appointed Independent Counsel Is Constitutional: Congress can have court appoint IC to investigate exec branch
wrongs & make IC removable by AG only for cause cuz its not Cong grabbing power (Morrison v. Olson, 1988, functionalist)
b. Judicial Sentencing Commission is Constitutional: Congress can create an independent sentencing commission in the
judiciary cuz it doesnt enhance Congress power but merely removes a burden on it (Mistretta v. US, 1989, functionalist)
2) Due Process: in adjudication Congressional influence is limited by due process (e.g. cant unduly influence given requirement of a
neutral decision-maker and ban on ex parte communications)


A. Executive Limits on Agency Power
1) Sources of Constitutional Power
1. Vesting Power Clause: power of executive is vested in the prez
2. Opinion in Writing Clause: prez can require any officers opinion in writing to him at any time (e.g. filter budget requests)
3. Take Care Clause: prez shall take care that the laws be faithfully executed (source of prez power? duty?)
4. Commander In Chief Clause: (e.g. can prez issue orders that override all statutes and treaties in a time of war?)
5. Appointments Clause: (clear, explicit, very important) prez has the power to appoint officers
6. Unitary Executive: in debates leading up to C & not actually in the C
2) Framework of Executive Authority (Youngstown, 1952, Jacksons concurrence)
1. Greatest Authority: when Prez exercises power delegated by Congress his power is at its utmost
2. Middle Authority: when Prez exercises power in a statutory vacuum his power is uncertain (zone of twilight)
3. Lowest Authority: when Prez exercises power contrary to will of Congress his power is most dubious
*Managing Exec Branch (Middle Authority): defending U.S. personnel & property (e.g. Prez can appoint bodyguard to protect
Justice Field even absent Congressional authorization, In Re Neagle (1890))
*Rejecting Congress Cutoffs For War (Lowest Authority): if prez could show unnecessary loss of life was likely w/ rapid
troop w/drawl after Congress uses power of purse to prevent use of appropriated $ for war a court might ok defiance of Congress
3) Appointment: only the prez may appoint officers of the U.S. (Art. II 2) w/ Senate confirmation. Inferior officers may be appointed by
the prez alone, heads of departments, or courts of law as Congress may direct.
a. Officers: appointed only by Prez subject to Senate confirmation (e.g. heads of agencies)
i. Cant Be Appointed by Congress: prez must appoint officers (Buckley v. Valeo, 1976) (no FEC Cong. appts.)
ii. Special Prosecutors Arent Officers: special court can appoint SPs or ICs (Morrison v. Olsen, 1988)
b. Inferior Officers: can be appointed by Prez, courts, or heads of departments
i. Who Is An Inferior Officer: those with limited duties, jurisdiction, or tenure (Morrison v. Olsen, 1988)
ii. Can Be Appointed by Court Judges: tax court chief judge can appoint tax court judges (Freytag v. IRS, 1991)
c. Agency Employees: Constitution is silent on how they should be appointed (e.g. includes ALJs)
d. Commissions With No Real Legal Powers: Congress can select members of commissions with no power to issue rules,
adjudicate disputes, or enforce laws, but only to investigate & issue reports (e.g. civil rights commission)
4) Removal: Constitution is silent on removal but presumption is Prez has unrestricted plenary removal power if Congress is silent
a. Old Model: prez had power to remove at will any officer exercising purely executive power (Myers, 1926, postmaster), but not
those exercising quasi-legislative functions (Humphreys Executor, 1935, FTC commissioner) or quasi-judicial functions even if
statute was silent regarding terms of removal (Wiener, 1958, war claims tribunal) (e.g. cause required for quasi-leg or quasi-jud)
b. New Model: prez has plenary power to remove at will any officer if Congress is silent, but Congress can through statute limit
prez removal power to for cause so long as there are good functional reasons to do so and it doesnt impede prez from carrying
out his constitutional duties (modern meaning of key cases)
i. Congress Can Limit Removal of Quasi-Judicial Independent Commissioner: Prez cant remove FTC
commissioner w/o stating cause cuz statute requires it, specifies fixed term, FTCs functions were quasi-judicial (in
1935), and agency is independent (Humphreys Executor, 1935)
ii. Congress Can Have Court Appoint Independent Counsel To Investigate Exec Wrongdoing: upheld special 3judge courts appointment of IC by removable only for cause cuz IC is inferior officer (limited scope/duration, cant
make policy, AG can remove IC for cause) & doesnt interfere w/ Prezs powers (IC cant make policy, investigates 1
case, Prez controls through AG, Congress isnt aggrandizing exec power) (Morrison v. Olson, 1988, functionalist)
iii. Congress Cant Wholly Bar Removal Absent Senate Confirmation: Congress cant usurp executive power by
wholly blocking his removal of postmaster by statute requiring Senate confirmation prior to removal (Myers, 1926)
5) Executive Orders - Systematic Control Over Agencies
a. Controlling the Sprawling Bureaucracy: every prez since FDR has tried to exercise greater systematic control over agencies
b. Supervising Regulatory Action: prez delegates the job to OMBs Office of Information and Regulatory Policy (OIRA)
c. Summary of Major Executive Order (3 big requirements): require agencies to engage in a regulatory planning process,
conduct cost-benefit analyses on major rules, and submit proposed rules to OIRA for review prior to publication
d. Reagan EO 12,291 (OMB review b4 major rules issued): authorized OMB to require executive agencies to delay
publication of major rules for cost-benefit analysis, inter-agency consultation, & consideration of additional data by OIRA
i. Express Limitations: only applied to (1) major rules, (2) to extent consistent with law (trumped by C and statutes),
(3) not to adjudications (DP for exec to influence them), (4) not to independent agencies (avoid fight w/ Congress), and
(5) conflicting statutory goals could trump cost-benefit analysis (permit health & environmental goals like Delaney)
ii. Judicial Limitations: courts could (1) prevent further exec review by OIRA of agency rules already in violation of
statutory deadlines & (2) require disclosure of all materials relied on in timely manner (Nova Scotia Food, 1977)
e. Reagan EO 12,498 (OMB informed of planned rules) (transparency): requires executive agencies to issue periodic
regulatory agendas w/ info regarding pending & planned rulemakings & designates VP to resolve OMB/agency disputes
f. Clinton EO 12,866: affirmed Reagans EOs, but expands to apply to independent agencies, adds time limits for each step in
review process to avoid delay, and adds transparency and disclosure requirements regarding status of review
*Controversial: press conferences to put regulatory issues at top of agency agendas (e.g. today I directed X agency to do Y)
g. Bush 43: has reaffirmed Clinton EO (but eliminated VP role), continued Clinton practice of publicly directing agencies to start
rulemakings, and has added annual process for rescinding or amending obselete/unduly burdensome rules through OIRA review
*Data Quality Act: limits agencies from acting on basis of low-quality data, enforceable by OIRA not the courts, thus giving
OIRA another mechanism to prevent agencies from issuing rules, notice, etc.


A. Constitution: U.S. judicial power shall be vested in one Supreme Court & such inferior courts as Congress may ordain & establish (Art. III)
B. Reality: federal agencies adjudicate 50-100 times more disputes than federal courts
C. Key Factors For Adjudicative Delegations (CFTC v. Schor, 1986)
1. Extent essential attributes of judicial power are reserved to Article III courts
2. Extent non-Article III forum exercises range of jurisdiction and powers normally vested only in Article III courts
3. Origins and importance of right to be adjudicated
4. Concerns that led Congress to depart from the requirements of Article III
D. Private Rights v. Public Rights: Article III applies to private rights, not public rights (Crowell v. Benson, 1932) (statute can take away findings of
fact from Article III courts)
1. Private Rights: Congress can assign agencies some power over private or C/L disputes where narrowly tailored or pragmatic (and it is
okay that federal courts are not involved)
Modern Views
a. Agencies Can Supervise Private Disputes In Narrow Class of Cases If Theres Good Reasons: 5 justices uphold statute
assigning a class of takings disputes to agency-supervised binding arbitration cuz narrow class of disputes involved (can patent
applicant #2 rely on R&D of patent applicant #1 or is that a govt. taking) and good justification exists (Union Carbide, 1985)
b. Agencies Can Adjudicate Narrow Class of C/L Counterclaims If Theres Good Reasons: 7 justices uphold CFTC assertion
of power to adjudicate C/L counterclaims cuz narrow class of disputes, good pragmatic justification (efficiency of 1 proceeding),
and D implicitly consented by bringing claim w/ CFTC (CFTC v. Schor, 1986):
c. Agencies Can Not Usurp C/L Claims In Which Jury Must Resolve Dispute: 6 justices held that a jury must resolve any
dispute that could have been resolved at C/L at time 7th amdt was ratified (Granfinanciera v. Nordberg, 1989)
Historical Tension
a. Deferential Court Review of Agency Action Is Sufficient: private rights disputes can only be adjudicated by courts but
review of agency action is sufficient court involvement, analogizing agency to special master (Crowell v. Benson, 1932)
b. Only Article III Courts Can Adjudicate Private Law Disputes: limited scope review by courts of agency action in private
law disputes is not constitutionally sufficient (Northern Pipeline, 1982) (invalidated law authorizing non-Article III bankruptcy
judges to decide certain state law K claims)
Unresolved Issue Of What Constitutes a Private Law Dispute
a. Any dispute between private individuals or entities (e.g. private C/L tort, K dispute, fed workers comp, rate regulation)?
b. Any dispute which existed at common law (e.g. common law tort action, contract dispute)?
c. Any dispute in which common law applies?
2. Public Rights: can be adjudicated by agencies
a. Disputes between an individual & a government agency (e.g. application to obtain Social Security benefits)
b. Disputes over a statutory entitlement (e.g. Social Security benefits created as a statutory entitlement)

IV. Agency Rulemaking

A. Introduction to Rulemaking
1. Rule: agency statement of general or particular applicability & future effect designed to implement, interpret, or prescribe law or policy
2. Analogy: similar to legislative enactment
3. Application: general and broad application
4. Affects: broad class of people and parties
5. Timing: forward looking and future effect (retroactivity not allowed)
6. Basis: general matters of law, policy, discretion
7. Due Process: not implicated (Bi-Metallic, 1915 broad govt policy like taxation)
8. Types: formal and informal, legislative and non-legislative
9. Examples: setting standards, requiring or prohibiting certain action
*Setting Standards: specifying industry-wide caps on air and water pollution, how long pilots can fly w/o time off
*Requiring/Prohibiting: requiring airbags in all new cars, prohibiting use of benzene in workplaces, banning soring of horses
B. Agency Process if Empowered to Make Legislative Rules
1. Notice: statement of time (period), place (to send comments), & nature of proceedings (informal, formal, N&C) (200-600 pages)
2. Legal Authority: disclose reference to legal authority under which the rule is proposed (553B)
3. Terms or Description: provide the terms or substance of proposed rule or description of subjects and issues involved
4. Explanation and Purpose: provide a preamble to explain the purpose and provisions of the proposed rule
5. Comments: solicit, receive, consider comments from interested parties (oral common, not required) (100K-1M pgs; 50K-200K parties)
6. Final Rule With Basis & Purpose: incorporate in final rule a concise general statement of their basis and purpose (200-1K pages)
7. Publish: publish the final rule not later than 30 days before its effective date (w/ some exceptions) (553D)
8. Right to Petition: people have a right to petition for issuance, amendment, or repeal of a rule (553E) & are entitled to response (555E)
*Oral Hearings: if statute requires on the record after agency hearing, it must allow for oral evidentiary hearings (553) (most dont)
C. Formal Rulemaking (556-557): akin to judicial trial w/ pleading stage (proposed rule, written responses), trial stage (testimony, documentary
evidence, cross-examination), decision stage (formulating final rule)
1. Applies: only if agencys statute requires rules to be made on the record after an opportunity for agency hearing (553)
2. Determination: examine statutes context, legislative history, or specific language
3. Requirements: full oral evidentiary hearing (e.g. oral presentation, subpoenas, evidence rulings, depositions, cross-exam) (556-557)
4. Supporters: fairness, genuine opportunity to question, thorough record, meaningful judicial review
5. Critics: time-consuming, costly, ineffective (e.g. 12 years to decide what % of peanut butter ought to be peanuts)
6. Presumption: if statute requires action after hearing only informal rulemaking is required (FL East Coast, 1973) (ICC freight cars)
7. Ambiguity: it is reasonable for agency to interpret hearing to refer to written exchange of views/data (Chem. Waste v. EPA, DC 1989)
D. Informal Rulemaking (553): general notice of proposed rule, opportunity to participate through written submissions by interested parties,
agency considers & then makes concise general statement of their basis & purpose, publishes rule
1. Applies: so long as agencys statute doesnt require rules to be made on the record after an opportunity for agency hearing (553)
2. Determination: examine statutes context, legislative history, or specific language
3. Requirements: notice, right to submit written comments for review, concise general statement of rules basis & purpose, published rule
4. Supporters: responsive to interested parties, effective, efficient, flexible
5. Critics: lack of transparency, increasingly time consuming and costly
6. Presumption: if statute requires action after hearing only informal rulemaking is required (FL East Coast, 1973) (ICC freight cars)
7. Ambiguity: it is reasonable for agency to interpret hearing to refer to written exchange of views/data (Chem. Waste v. EPA, DC 1989)
E. Legislative Rules
1. What is a Legislative Rule: binding rules that have legal effect
2. Statutory Authorization Required: an agency must be authorized by Congress to be able to issue legislative rules (most are)
3. Example of Legislative Rule: a rule declaring that a controlled substance can lead to 20 years in jail
4. Enforcement Power: FTC authorized to make rules defining statutory standards of illegality it polices like unfair competition (Natl
Petroleum Refiners v. FTC, DC 1973) (Congress later required oral evidentiary hearings to undercut FTC power in FTC Improvement Act)
F. Non-Legislative Rules
1. What is a Non-Legislative Rule: non-binding rules that merely express an agencys views on the meaning of a statute or regulation
2. Statutory Authorization Not Required: all agencies have inherent power to issue non-legislative rules w/o statutory authorization
3. Example of Procedural Rule: a rule declaring that reply briefs shall be filed w/in 60 days
4. Example of Interpretative Rule: a rule clarifying that an X-ray qualifies as a diagnosis
G. Rulemaking Requirements
1. Disclosure of Reference Materials: notice must reference any studies or materials on which agency may rely as part of its basis for final
rule to allow informed comments (Nova Scotia Food, 1977) (FDA failed to disclose data it relied on in proposed rule to control botulism)
2. Adequately Foreshadow Final Rule: notice must adequately foreshadow final rule & be logical outgrowth of N&C process to
ensure chance for meaningful comment (test: could regulated party have anticipated such a requirement would be imposed?) (MCI)
3. Reasoned Decision: examine & consider all relevant data/alternatives & articulate a satisfactory explanation for rule (State Farm, 1983)
(A&C to rescind rule requiring all cars to have auto seatbelt cuz agency didnt consider amending rule or efficacy of key airbag alternative)
4. Final Rule Must Be Adequately Supported By The Record Before It: review of agency decisions looks at the record before the
agency at time of decision and not what the agency subsequently produces to justify its decision (Chenery, 1947) (Overton Park, 1971)
5. Final Rule Must Adequately Consider Alternatives: agency must adequately consider all key alternatives (State Farm, 1983) (airbags)

6. Must Disclose Ex Parte Communications: ex parte in rulemakings must be put in record (HBO v. FCC, DC 1979) (off-record mtg w/
industry insiders), but narrowed to only those w/ conflicting claims to a valuable privilege (Act for Childrens TV, DC) (e.g. FCC license)
a. Rationale Against Ex Parte: open, transparent, disclosure, accountable to public (model: judicial system)
b. Rationale For Ex Parte: flexibility, speed, efficiency, and candid off-the-record dialogue (model: legislative system)
c. Start Rulemaking As Late As Possible: issue notice only after all key input & all necessary ex parte cs (tool: ANPRM)
7. Impartial Rulemaker (Not Biased or Prejudice): cant have clear and convincing showing that agency member has unalterably closed
mind on matters critical to disposition of proceeding (high standard to meet)
a. Not Disqualifying: opinions on issues of legislative fact, policy, or law (e.g. Al Gore appointed head of EPA)
b. Disqualifying: opinions on issues of adjudicative fact (e.g. enforcement chief now ALJ in case he prosecuted)
c. Public Comments: no prejudice in childrens ad rulemaking despite FTC chairs public speeches about the evilness &
immorality of such ads (Assoc. of Natl. Advertisers v. FTC, DC Cir. 1979)
8. Political Input Allowed But Not Irrelevant Political Pressures: inter-executive & cong contacts proper unless designed to force
decision based on factors not made relevant in applicable statute & decision was effected by such extraneous considerations
a. Political Input: upheld Prez/Cong strong-arming of EPA to ease costly proposed rule to control CO2 emissions during oil
embargo, Iran hostage crisis, & recession that would jeopardize domestic NRG supply (Sierra Club v. Costle, DC 1981)
b. Judicial Checks: rule must be adequately supported by record (State Farm, 1983) & not a product of illegitimate political
influence extraneous or irrelevant to issues and that actually affected agency (Assoc. of Natl. Advertisers v. FTC, DC Cir. 1979)
H. Controlling or Avoiding Adjudication Through Rulemaking
1. Create Uniform Guidelines: SSA can use grid rule (age, education, experience, health) instead of expert testimony to determine right to
SS disability benefits more cost-effectively, accurately & consistently (Heckler v. Campbell, 1983)
2. Reduce Transaction Costs: SSA can by rule instruct ALJs to stop after step 2 of 5-step process if persons deemed to have no severe
impairment to help eliminate backlog of disability cases (Bowen v. Yuckert, 1987)
3. Avoid Costly Hearings: FAA can issue reg to cap pilot age at 60 w/o hearings cuz statutes goal is to ensure air safety, speedy adoption
of such rules, & hearings every 2 years for each 60+ pilot would cripple FAA (Air Line Pilots, 2d 1960)
I. Advantages of Rulemaking: widespread agreement in the value of informal rulemaking to create generally applicable rules
1. Higher Quality: broader input, focus on policy issues rather than idiosyncratic facts & forward-looking approach
2. Greater Fairness: broader participation rights, better notice, application to all regulates & beneficiaries at same time
3. More Efficient & Effective: binding effect, reduction in hearings and scope of hearings, more clarity
4. Better Political Accountability: advanced notice, broader participation rights, transparency of policymaking process
J. Disadvantages of Rulemaking
1. Increased Costs: State Farm and other decisions impose high costs on the rulemaking process
2. Significant Delays: court decisions have made rulemaking very slow (e.g. State Farm (adequately explain and consider alternatives),
Abbott Labs (allowing pre-enforcement review & requiring record for court review), Nova Scotia Foods (disclose reference materials)
3. Politically Transparent: agencies may not want to be held politically accountable for their policy decisions
4. No Retroactivity: agencies cant issue retroactive leg rules but can announce/apply such rules in adjudication (Georgetown, 1988)
K. Benefits vs. Burdens of Rulemaking
1. Ambivalence Toward Rulemaking: theres widespread ambivalence about rulemakings that regulate broadly and often with high costs
2. Ensuring Rules Are Rationale: ambivalence has led to efforts to ensure the process is rational and based on best info and judgment
3. Cautious, Slow Rulemaking Process: laws and court decisions have ensured that rules come only with careful study and analysis
4. Rulemaking Ossification: increased costs & delays in rulemaking leave workers, consumers, the environment, and businesses at risk
L. Exemptions From Notice/Comment Requirements (agencies try to get rules into these groups to avoid court State Farm/Nova Scotia scrutiny)
1. Exempt From All Requirements Except Publication (APA 553(a))
a) Military or Foreign Affairs Functions
i. Rationale: avoid impeding military operations or foreign relations
ii. Immigration (borderline): rule cracking down on deportation of Iranians allowed w/o N&C during hostage crisis,
but liberalizing asylum rules post-Tiananmen square struck down w/o N&C cuz no adverse international consequences
b) Agency Management and Personnel and Agency Contracts or Benefits Programs
i. History: exempted in APA cuz they didnt regulate private behavior
ii. Facially Exempted: public benefits (e.g. Social Security, Medicare), public property (USFS, BLM, NPS), public
loans (HUD subsidized housing), public grants ($ for research for science and the arts), public contracts (govt Ks)
iii. Applied Narrowly In Reality: many agencies have waived these exceptions (e.g. HUD, HHS, DOI, DOT, DOL)
and Congress has overridden others by statute so the rule tends to be construed much more narrowly than on its face
2. Exempt From Notice/Comment Requirements (APA 553(b)) (exempts many rules w/ no legal effect; not a license for vagueness)
a. Interpretative Rules (no force of law): clarifies scope of pre-existing right or duty & particularizes it to better understand
how it applies in different factual circumstances (e.g. dont set any new policy, but merely explain previous regs or statutes)
i. Distinguishing Legislative Rules (force of law) From Interpretive Rules (no force of law) (AMC, DC 1993)
i. Effect: legislative rules create, eliminate, reduce, or expand scope of rights or duties while interpretive
rules only clarify, particularize, or explain pre-existing rights or duties
ii. CFR Publication: legislative rules are published in Code of Federal Regulations, interpretive rules arent
iii. Agency Says Its Legislative: an agency may note if its explicitly invoking its general legislative authority

iv. No Alternative Basis for Enforcement: an enforcement action could not be brought w/o rule (leg rule)
v. Amends A Prior Legislative Rule: if a rule effectively amends a prior legislative rule its likely a leg rule
ii. Interpretative (Policy Letters): MSHA rule requires report for each occupational disease diagnosed in employee,
but 3 policy letters defining x-rays as diagnoses are interpretive rules exempt from N&C (AMC v. MSHA, DC 1993)
iii. Legislative (Precise Standard): 8 fence requirement by DOA based on a leg rule requiring structurally sound
facilities to protect dangerous animals during transport is a leg rule requiring N&C (Hoctor v. US DOA, 7th Cir. 1996)
iv. Deference to Plausible Interpretations, But Not Parroting Statute: courts will defer to plausible agency interp of
its leg rule (Seminole Rock 1944), but not if interpretation of a rule merely parrots a statute (Gonzales v. OR, 2006) cuz
otherwise agencies would issue broad, vague rules merely restating principal provisions of a statute
*Limits: cant use N&C rulemaking for vague leg rule to avoid N&C by then fleshing out specific interpretative rule
b. General Statements of Policy (not binding): agency pronouncements that dont bind the agency or have a definite effect
i. Used: most often used to indicate to the public or the regulated community when agency will take investigative of
enforcement action or indicate how the agency intends to act under certain circumstances in agency adjudication
-External Enforcement Criteria (Example #1): statute authorizes enforcement against mine operators or
independent contractors so Sec of Labor issues statement of criteria for when it will go after each or both
-Internal Penalty Guidelines (Example #2): Coast Guard Marine Safety Manual giving guidance on what
appropriate penalties might be for various types of water pollution
ii. Goal: policy statements are used to provide guidance to agency employees or regulated entities
iii. Coercive Effect: even though not binding, policy statements have a coercive effect on regulatees (fear enforcement)
iv. Judicial Test for Policy Statements: courts look for evidence that an agency wont use general statements of policy
to decide future cases otherwise they will be deemed legislative rules
-Policy Cant Bind Agency Discretion: agency cant use policy statements to bind or restrict its discretion &
must remain free to act in manner inconsistent in a given case (Community Nutrition, DC 1987, FDA food
contamination levels established binding legal norms thus they couldnt be a mere statement of policy)
-Muddying Up: policy statements that are too clear or crisp may need to be muddied up (e.g. we reserve the
discretion to act in a manner inconsistent with general statement of policies) to be acceptable by the courts
c. Rules Of Agency Organization, Procedure, Or Practice (procedural rules)
i. Effect: are legally binding (e.g. permit application must be filed in duplicate)
ii. Rationale for Exemption: they dont govern the primary behavior of the regulated public
iii. Examples: filing deadlines, agency manual directing its own employees on how to engage in inspections
d. Rules Where Agency Finds For Good Cause That N&C Is Impracticable, Unnecessary, Or Contrary To Public Interest
i. Applies: it is a narrow and carefully monitored exception but covers emergencies and crises among other things
ii. Dead Bodies (Example #1): agency will be exempt from notice and comment if it can convince court that great # of
deaths would occur b4 final rule
iii. Emergency (Example #2): FAA adoption of emergency screening procedures for airports without notice and
comment after getting intelligence concerning planned terrorist activities
iv. Impracticable / Not in Publics Interest (Example #3): agency wants to impose price controls cuz of rising prices,
but announcing N&C would lead to immediate jump by sellers to beat the freeze contrary to public interest
v. Reverse Sequence of Action: temporary emergency rule issued at same time as rulemaking proposal is issued to
decide whether to permanently continue interim rule
vi. Judicial Scrutiny: court requires extreme circumstance and polices agency to expeditiously proceed with
rulemaking process (albeit in reverse)


V. Agency Adjudication
A. Introduction to Adjudication
1. Adjudication: application of a statute or other legal standard to a given fact situation involving particular individuals or parties
2. Analogy: similar to judicial process
3. Application: specific and narrow application
4. Affects: specific parties, activities, businesses, properties involved
5. Timing: backward looking application of law to past conduct (retroactivity allowed)
6. Basis: application of law to facts in specific disputes with particular parties
7. Due Process: implicated (Londoner, 1908 individualized determinations)
8. Types: formal and informal
9. Examples: determining eligibility, licensing decisions
* Determining: if student qualifies for loans, injured person can get disability, alien can stay in U.S., merger was anti-competitive
* Issuing: licenses to pilots, broadcasters for TV station, businesses to pollute up to certain cap, developers to build on wetlands
B. Formal Adjudication (554)
1. Applies: only if agencys statute requires adjudication on the record after an opportunity for agency hearing (554)
2. Determination: examine statutes context, legislative history, or specific language
3. Requirements: oral presentation, subpoenas, evidence rulings, depositions, cross-exam, etc. (full oral evidentiary hearing) (556-557)
4. Presumption: unless Congress explicitly calls for formal adjudication it is presumed that informal is sufficient (FL East Coast, 1973)
5. Ambiguity: it is reasonable for agency to interpret hearing as not requiring informal adjudication (Chem. Waste v. EPA, DC 1989)
C. Informal Adjudication (555)
1. Applies: whenever agencys statute DOESNT require adjudication on the record after an opportunity for agency hearing (554)
2. Determination: examine statutes context, legislative history, or specific language
3. Requirements (Minimal): entitled to hire a lawyer and a brief statement of agencys reasons denying your request if you asked for it
4. Presumption: unless Congress explicitly calls for formal adjudication it is presumed that informal is sufficient (FL East Coast, 1973)
5. Ambiguity: it is reasonable for agency to interpret hearing as not requiring informal adjudication (Chem. Waste v. EPA, DC 1989)
* Due Process: due process protections provide added safeguards to the APA minimal requirements
D. Constraints on Adjudication (Sources of Due Process)
1. Agencys Own Procedural Rules: an agency is bound by its own rules and must follow them until it changes them
2. Constitutions Due Process Clause: an agency must not deny any person life, liberty, or property without due process of law
3. Statutes: an agency is bound by the procedures its statute authorizes or requires (oral hearings generally not required even w/ hearing)
E. Adjudication vs. Traditional Judicial Trial
1. Elements of Traditional Judicial Trial: notice of proposed action and grounds asserted for it, opportunity to present evidence and
reasons action shouldnt be taken, call witnesses, cross-examine, have counsel, impartial decision-maker, decision based solely on formal
record and evidence presented, written findings & conclusions w/ statement of reasons for the decision, public attendance, judicial review
2. Similarities Between Formal Adjudication and Traditional Judicial Trials: notice & grounds for action, judge, testimony, crossexamination, limits on ex parte communications, written decision based on record & explaining outcome, method for appeals
3. Differences Between Adjudication and Traditional Judicial Trials: judges arent life tenured and are employees of agencies, rules of
evidence are not applicable (e.g. hearsay allowed), agency makes de novo review of ALJ decisions
F. Permitted in Adjudications
1. Regulating Without Rules: agency can act solely by adjudication unless Congress explicitly requires it to act by rule (Chenery, 1947)
2. Announcing Generally Applicable Principles: agency can announce generally applicable principles in adjudications (Chenery, 1947)
3. Taking Identical Action On Remand With Different Justification: agency can take an action on remand identical to the action
reversed by the court if the agency can provide a different and legally permissible basis for the action (Chenery, 1947)
4. Applying Retroactive Rule: agency can announce & apply a retroactive rule in an adjudication (Georgetown, 1988)
G. Adjudication Requirements
1. Ban on Ex Parte Communications: ex parte communications are prohibited in formal adjudications and formal rulemakings relative to
merits of the proceeding by any interested party/persons outside the agency (557D)
2. Neutral Decisionmaker (Bias/Prejudgment): APA & DP require neutral decision maker w/o bias (e.g. pecuniary, relational, prior role,
prejudgment) on issues of adjudicative fact (Assoc. of Natl. Advertisers v. FTC, DC 1979) (unalterably closed mind on critical matters)
H. Adjudicative Consistency
1. Stare Decisis: (requires reasoned decisions) agency must adhere to its precedents & prior policies unless it explicitly acknowledges its
departure & explains why it is changing (unexplained departure is arbitrary & capricious)
2. Res Judicata & Colatteral Estoppel: agency may be bound by prior adjudications, but not by informal statements of law/policy
determined in part by purpose of statute being implemented (competing goals: finality, fairness, flexibility)
a. Not Binding: effect in 2006 of agency finding in 2004 that individuals not disabled (not binding) or effect in 2006 of agency
finding in 1985 that pollution doesnt adversely effect aquatic biota (not binding)
b. Government: never subject to CE on an issue of law (otherwise 1 dist court could set natl policy binding govt)
3. Equitable Estoppel: virtually impossible to invoke against govt (e.g. fed worker told farmer hed be covered by govt crop insurance, but
farmer couldnt invoke equitable estoppel cuz misguided advice cant usurp role of Congress to make law)
4. Advice Not Binding: informal advice of govt officials not binding unless made w/ clear authority & no $ is required (policy rationale: if
it was binding, govt would just stopping giving out advice e.g. IRS hotline would be eliminated)
5. Request an Agency Ruling: you can write agencies for a ruling (e.g. get a revenue ruling from IRS in writing)
6. All Evidence Permitted: in any agency hearing all relevant evidence is admissible including hearsay (556d)

a. An Agency Can Rely Entirely on Hearsay: agencies can make an adjudicatory decision solely based on hearsay (e.g. relying
on 5 docs who found no disability in hearsay vs. testimony of 1 doc who did for SS benefits, Richardson v. Perales, 1971)
b. Support: formal adjudication orders must still be supported by reliable, probative, and substantial evidence 556(d))
7. Burden of Proof: the burden of proof is on the proponent of the order (e.g. SSA to show a persons no longer disabled, FTC to show that
an assoc. is unlawfully restraining trade)
I. Controlling or Avoiding Adjudication Through Rulemaking
1. Create Uniform Guidelines: SSA can use grid rule (age, education, experience, health) instead of expert testimony to determine right to
SS disability benefits more cost-effectively, accurately & consistently (Heckler v. Campbell, 1983)
2. Reduce Transaction Costs: SSA can by rule instruct ALJs to stop after step 2 of 5-step process if persons deemed to have no severe
impairment to help eliminate backlog of disability cases (Bowen v. Yuckert, 1987)
3. Avoid Costly Hearings: FAA can issue reg to cap pilot age at 60 w/o hearings cuz statutes goal is to ensure air safety, speedy adoption
of such rules, & hearings every 2 years for each 60+ pilot would cripple FAA (Air Line Pilots, 2d 1960)
J. Due Process Requirements (Constitution): the government cant deprive any person of life, liberty, or property without due process of law
(1) Importance: because the APA provides no procedures for informal adjudications, due process may provide important safeguards
(2) Applies: DP doesnt apply to generally lawmaking (Bi-Metallic, 1915) (political process resolves) but to adjudication (Londoner 1908)
(3) Individualized Determinations (Hearings Required): redress for individualized determinations based on resolution of contested
issues of adjudicative fact require some kind of hearing through the judicial process (e.g. agency or judicial adjudication)
a) Small Group of Property Owners Affected: entitled to individualized hearings when city levied taxes on several individual
property owners (Londoner v. Denver, 1908)
(4) Broad Policy (Hearings Not Required): redress for broad govt policy requires no hearing & is resolved through political process
a. Policy Impacts All Taxable Property: state agency could revalue assessed value of all taxable commercial property without
needing notice or adjudicatory proceeding / hearing (Bi-Metallic v. State Board, 1915)
Roth-Perry Two Step
(1) Is It Within the Scope of the Due Process Clause?
a) Liberty: fundamental liberty interests enumerated in C or unenumerated fundamental rights (e.g. speech, voting, privacy)
i. Freedom from incarceration or bodily restraint (e.g. DP right to hearing b4 being sent to prison for violating terms
of parole, but once there prison officials have extensive discretion over inmates)
ii. Freedom from suffering adverse consequences for exercising a Constitutional right (e.g. cant be fired for
exercising 1st amdt rights, Pickering v. Bd of Ed 1968)
iii. Freedom to practice a chosen profession without interference
iv. Freedom from Official Stigmatization: a reputational liberty interest only if its official stigmatization coupled w/
simultaneous deprivation of something tangible (e.g. opportunity to buy alcohol, right to retain govt employment)
-Stigma-Plus Test: look for public statements harming reputation + firing/expelling/etc.)
-Example: man not entitled to pre-listing DP hearing to determine dangerousness where undisputed
conviction of sexual offense results in automatic listing on sex offender registry (CT Dept v. Doe, 2003)
*Others: right to K, engage in common jobs, acquire knowledge, marry, establish home, raise children, worship God
b) Property: a legitimate claim of entitlement and not merely a unilateral expectation or desire for it (statutory entitlements,
Goldberg, 1970; tenure employment entitlement, Perry/Roth, 1972)
i. Real Property: land, money
ii. Contract: 1-yr K isnt entitlement w/o renewal provision (Roth 1972) but is w/ implied tenure (Perry 1972)
iii. Accept Bitter With Sweet (outdated): person who relies on statute as source of entitlement must accept statutorilyspecified procedures for revoking right (Arnett v. Kennedy, 1974; Bishop v. Wood, 1976) (rejected in Loudermill, 1985)
iv. Key: look for documents establishing policy (e.g. K, bylaws, manual, etc.) or mutual understandings written or not
(2) What Process Is Due?
a) Goldberg (1970) (presumption in favor of judicial-type proceedings): old rule requiring fairly formal adjudication with
timely & adequate notice of charges, right to confront & cross-examine adverse witnesses, present own witnesses, address factfinder orally, have counsel present, decision on record with explanation, and impartial decision-maker
b) Matthews (1976) (flexible notion of what constitutes fair procedures): modern rule balancing interests as follows
1) Importance of private interests affected by the action
i. $ Amount: not dispositive since $2K food stamps > $100K to a big biz
2) Risk of erroneous deprivation of private interest under required procedures & likely reduction from more procedures
3) Governments interest in using the required procedures rather than more or different procedures
i. Fiscal and Administrative Burdens of added procedures
ii. Mass Justice Cases: govts interest is high given large # of cases on welfare or SS disability
c) Clear Due Process Minimums
1) Impartial Judge: judge cant have a $ interest in outcome, personal knowledge, or an irrevocably closed mind
2) Limits on Ex Parte Communications: no ex parte communications w/ interested persons outside agency relevant to
merits of proceeding (557D) or w/ persons inside agency concerning facts at issue (554D)
*Allowed: ALJ can discuss non-factual issues ex parte w/ people in agency not involved in investigating or prosecuting

(3) Pre-Termination Oral Evidentiary Hearings: apart from Goldberg v. Kelly (1970) SCs been reluctant to add costs & burdens that
may simply result in fewer people being eligible for statutory entitlements (e.g. welfare, SS disability)
b. Required: statutory entitlements are property for those receiving benefits (since overturned) & when welfares
discontinued a pre-termination oral evidentiary hearing is required to afford DP cuz deprives an eligible recipient of the very
means by which to live (Goldberg v. Kelly, 1970 - Brennan) (dissent: costs of new procedures will be borne by beneficiaries)
c. Not Required: pre-termination oral evidentiary hearing not required prior to termination of SS disability payments cuz not
based on $ need, less risk of error in objective medical assessments than welfare gauges, and safeguard is drs. can communicate
better in writing than welfare recipients (Matthews v. Eldridge 1976 - Powell); & dismissal of former felon as school security
guard requires some pre-termination opportunity to respond, but post-termination proceedings are sufficient (Loudermill 1985)
(4) Doctrinal Inconsistency: post-Eldridge cases have lacked clarity and consistency
a) Conflict on Sufficiency of Alternative Remedies: civil/criminal sanctions make prior hearing unnecessary before paddling in
schools (Ingraham v. Wright 1977), seizure of property (City of West Covina v. Perkins, 1999) or non-compliance with contract
(Lujan v. G & G, 2001), BUT C/L remedies not adequate substitution for pre-termination review of disputed utility bill in
customer dispute with municipal utility (Memphis Light v. Craft, 1978)
b) Conflict on Mental Health Institutionalizing: not entitled to pre-commitment hearing where hearing would provide little
protection from error (Parham v. JR, 1979), BUT subtleties of psych diagnosis require prior hearing before transferring prisoner
to a mental hospital (Vitek v. Jones, 1980)
c) Conflict on Need For Oral Hearing: despite individual assessment in both cases, oral hearing not required in parole decisions
(Greenholtz v. Inmates, 1979), BUT required before waiving recoupment of overpaid disability benefits (CA v. Yamasaki, 1979)
c) Conflict on Right to Employment: DPC not applicable to dismissal of training officer w/o chance to cross-examine
informants (Bailey v. Richardson, DC Cir 1950) BUT DPC applicable to dismissed short-order cook for navy but dismissal
upheld weighing private interest (chance to work at specific place) against nature of govt function (managing military ops)
(Cafeteria Union v. McElroy, 1961)
d) Conflict on Right to Public Employment: canned prof w/ K & implied tenure won right to hearing given reasonable
expectation of employment (Perry 1972) BUT prof w/ 1 year K & no implied extension had no right to hearing (Roth 1972)
e) Freedom from Official Stigmatization (has narrowed): guy on list circulated of known alcoholics implicates reputation
sufficiently to require prior hearing (Constantineau, 1971), BUT no DP violation when police circulated list, pics, & bios of
shoplifters to 800 merchants (Paul v. Davis, 1976) (avoids Calizing C/L torts by state employees)
*Requirements: official stigmatization AND deprivation of tangible (e.g. chance to buy alcohol, right to retain govt job)


VI. Availability of Judicial Review of Agency Action

A. Presumption of Reviewability of Final Agency Action (Overton Park 1971): APA provides a right to review of final agency action UNLESS
(1) Statute Precludes Review (701(a)(1)): requires clear & convincing evidence Congress intended to preclude review OR
*Statutory Silence Still Reviewable: DOT act barring use of fed $ to build highways through public parks if feasible & prudent alternative
exists reviewable by courts even though statutes silent on agency procedures & judicial review (Overton Park 1971)
(2) Action Committed to Agency Discretion By Law (702(a)(2)): rare case where there is no law to apply & reviewing court would have
no standards for basis of review
*Discretionary Personnel Decision: CIA Directors decision to terminate gay employee w/o providing reasons or hearing is not reviewable
by courts cuz its committed to agency discretion by law given statutory language (personnel decisions are in his discretion whenever he
shall deem it advisable) and context (dealing with clandestine CIA on matters of national security) (Webster v. Doe 1988)
*Discretionary Enforcement Decision: whether to take enforcement action is committed to FDA discretion (Heckler v. Chaney, 1985) (FDA
decision not to act to avoid interfering in state criminal justice systems when death row inmates charged that lethal injunction drugs were
not safe & effective for human execution held presumptively unreviewable)
*Other Examples: matters of agency management, disposing of public lands, defense/foreign affairs, shifting lump fund appropriations
(3) Similarity of 701(a)(1) and 701(a)(2): no law to apply and committed to agency discretion sometimes overlap
*Reviewability of FHA Decisions Allowing Rent Increases for Subsidized Housing (Section 8): statute is silent on judicial review, and while
all circuits have concluded theres no right to judicial review of rent increase decisions theyve disagreed on whether its committed to
agency discretion (Hahn v. Gottlieb, 1st Cir) or whether Congress implicitly precluded review (Langevin v. Chenango, 2nd Cir)
B. Presumption of Non-Reviewability of Agency Inaction
(1) Agency Discretion: agencies have discretion over whether to investigate or take enforcement action given limited resources and
funding and the need to prioritize decisions and respond to competing pressures and such decisions are generally unreviewable.
a) Agency Inaction Presumptively Unreviewable: agencies are given strong deference not to act, rebutted only by language of
command (e.g. agency must act) AND a justiciable standard (e.g. do precisely X when a complaint is received)
b) Courts Cant Compel Enforcement Action: agency has virtually unlimited discretion not to take enforcement action
(Heckler v. Chaney 1985, Rehnquist) (FDA decision not to act to avoid interfering in state criminal justice systems when death
row inmates charged lethal injunction drugs were not safe & effective for human execution held presumptively unreviewable)
c) Courts Cant Compel Agency To Act For Policy Reasons: even if facts presented to agency show a clear violation of law
(unfair labor practices by management during union elections), court cant compel agency to act (policy choice and resource
allocation outside of court expertise) (Dunn v. Retail Clerks, 6th Cir. 1962)
d) Courts Can Review Agency Legal Decisions: court can review & reverse decision not to act if agency gives legally incorrect
reason (e.g. agency rules SOL in labor case is 6 months when its not (court expertise) So. Cal Dist Council
*As a result of Dunn and So. Cal agencies have an incentive not to provide reasons for their inaction (unreviewable)
e) Courts Have Narrow Review of Agency Remedies: courts can review an agencys choice of remedy at the end of
enforcement decisions once a violation has been proved only for whether its patently arbitrary and capricious
f) Reasons Requirement Anomaly Allowing Review of Agency Inaction: DOL Secretarys decision not to set aside union
election subject to judicial review, albeit narrow A&C (reasons required but not hearing) (Dunlop 1975, Brennan)
g) Courts Can Review Agency Steps Toward Rulemaking: courts arent second guessing agencys allocation of scarce
resources but reviewing outcome of agencys voluntary decision after its already chosen to devote resources to rulemaking
i. APA 553(e): requires agencies to give reasons for denying petition for rulemaking (not so for agency inaction)
ii. Court Can Review Decision Not To Issue Rule After Rulemaking: permitting court review of SEC rule after
rulemaking to consider requiring corporations to report activities regarding racially discriminatory or environmentally
unfriendly practices (NRDC v. SEC, DC Cir 1971)
iii. Refusal To Amend Rule Subject To Deferential Review: DOA decision not to issue rulemaking deemed
reviewable where Secretary failed to adequately explain why agency indicated it would ban light weigh soring if found
to be injurious by independent study but then didnt (American Horse Protection Assn. v. Lyng, DC 1987)
iv. Agency Denial: We share your concern that X is an important problem and are working to address it through
informal investigation & ad hoc adjudicatory proceedings. However, given our limited budget and numerous other
pressing regulatory needs, we are denying your petition at this time.

C. Timing of Judicial Review

(1) Requirements: agency action is reviewable only if its final, ripe for review, and P has exhausted administrative remedies
(2) Finality: agencys last word and has to have formal, legal consequences (change rights or duties) (initial decision maker has arrived at
a definite position on the issue that inflicts an actual, concrete injury)
(a) APA 704: makes final agency action subject to judicial review
(b) Rationale for Finality Requirement: avoids judicial interference with ongoing agency activities
(c) Non-Consequential Decisions Are Not Final: proposed decisions that carry no consequences are not final even if they
represent an agencys final word (e.g. base closing proposals of DOD & Base Closing Commission, Dalton v. Specter 1994)
(d) Agency Delay (706(1)): theoretically courts may compel agency action thats unreasonably delayed, but its so rare w/o a
clear statutory deadline, and even then courts are unlikely to force compliance recognizing limited agency resources (e.g. agency
compliance w/ mandatory deadlines is low 15% for EPA, 0% for OSHA)
(e) Decision Not To Act or No Decision: an agency decision not to act may be final, but an agency that merely never announces
a decision is a murkier situation in which courts are split as to whether it is considered final
(f) Agency Suspensions & Cancellations Under FIFRA Example
i. Suspension: requires finding of imminent harm after few, if any, procedures & can be done quickly
(e.g. EPA decision to suspend use of a pesticide because it causes imminent harm)
ii. Cancellation: requires finding that costs exceed benefits after elaborate procedure that takes years
to cancel use of a pesticide because its costs outweigh its benefits)
Not To

Start Cancellation Proceeding

Not Final Agency Action
(initial, not final)
Unclear & Debated Over
Not Final Agency Action
(agency may later decide to act)

Decision to Suspend
Circuit Split

(e.g. EPA decision

Decision to Cancel
Final Agency Action
(is agencys final decision)
Unclear & Debated Over
Not Final Agency Action
(agency may later decide to act)

Unclear & Debated Over

Not Final Agency Action
(agency may later decide to act)

(3) Ripeness: whether issues are appropriate for judicial resolution at a given time
(a) Source: grounded in common law not the APA
(b) Rationale for Ripeness Requirement: assures issues are sufficiently developed for judicial resolution
Requirements (Abbott Labs, 1967 Test)
(a) Fit for Judicial Resolution: whether issues are appropriate for judicial resolution at this time & in this abstract context
i. Purely Legal: more likely to be ripe for review
ii. Purely Factual: less likely to be ripe for review (e.g. wait to see how the law is applied)
(b) Hardship: whether petitioner would suffer hardship if review is deferred (e.g. serious penalties absent change in conduct)
*Consider Legislative Intent: whether Congress intended to preclude review at a given time (e.g. pre-enforcement review)
Pre-Enforcement Review Precluded
(a) Benefit Eligibility Rules: can only be challenged by those who the rules have been applied against post-enforcement
(e.g. Abbott doesnt apply to benefit eligibility rules like SSA benefits, INS deportation) (Catholic Social Services, 1993)
(b) Alternative Route To Review: Congress implicitly precluded pre-enforcement review of a regulatory rule by providing an
alternative route to review (can challenge rule in enforcement proceeding) (Thunder Basin Coal, 1994)
Pre-Enforcement Challenges
*Justices disagree as whether there is a presumption of pre-enforcement review (Illinois Council on Long-Term Care, 2000)
(a) Not Ripe When Determination Is Too Abstract: not permitting pre-enforcement challenge to reasonableness of FDAs
potential search & seizure access to manufacturers facilities because legal decision is very fact-dependent (Toilet Goods, 1967)

i. Key: challenges to legislative rules that raise mere possibilities of change but dont affect primary conduct of the
regulated community are unlikely to be found ripe
(b) Ripe When P Significantly Changes Conduct For Costly Compliance: permitting pre-enforcement challenge by drug
makers to FDA power requiring reference to generic every time brand name is mentioned in label or ad (Abbott Labs, 1967)
i. Key: challenges to legislative rules imposing duties or restrictions requiring immediate changes in conduct of the
regulated community or be found in violation of law are virtually always held ripe
*Abbotts Impact: has made pre-enforcement review common, making rulemakings 5-10 year endeavors
(4) Exhaustion: no one is entitled to judicial relief for a threatened injury until prescribed administrative remedies have been exhausted
(a) Reasons for Exhaustion Doctrine: defer to agency decision-making, factual resolution, expertise, discretion, and autonomy,
and enhance efficiency by avoiding premature interruption of agency decision-making and burdening courts
(b) Rule: when an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the
agency action is final for purposes of APA 10(c) and thus subject to judicial review (Darby v. Cisneros, 1993)
1) Administrative Remedies Not Exhausted: party must first challenge jurisdiction at agency hearing subject to
deferential judicial review of agency determination at end of proceeding (Myers v. Bethlehem Steel, 1938)
2) Intra-Agency Appeals: exhaustion requirement is satisfied if you may seek intra-agency review but choose not to
(final & reviewable APA 704(c)), but if statute or rule requires intra-agency review you must to satisfy exhaustion
(c) Exhaustion Exceptions - When Failure To Exhaust May Be Excused (probably requires a combination of these)
i. When challenging the adequacy of the administrative procedures themselves
ii. When administrative remedies are no longer available
iii. When criminal context creates hardship (e.g. D would otherwise be stripped of his only defense)
iv. When issue does not involve fact-finding, discretion, or expertise
*Draft Classifications: court declined to apply exhaustion doctrine that wouldve barred review of a draft registrants
claim that his local board had unlawfully reclassified him from 4A (sole surviving son) to 1A even though he refused to
fill out form to raise issues before agency (McKart, 1969) BUT a Quaker conscientious objector, went to jail in similar
circumstances cuz agencys fact-gathering expertise are necessary (McGee, 1971)
(d) Scope of Exhaustion: regulatees may argue that decisions requiring exhaustion should be narrowly construed to avoid more
costly, time-consuming, non-essential determinations.
*Avoiding Clinical Trials: argue that scope of exhaustion should be whether a product is a drug subject to years of
clinical trials not the broader question of whether its safe & effective cuz if its not a drug, clinical trials are an
unnecessary waste of time and $ (e.g. scope of burden substantially outweighs feasible alternatives)
(e) Courts Cant Excuse Failure to Exhaust when Congressionally Required: courts cannot excuse a failure to exhaust
administrative remedies when Congress has required exhaustion by statute (Woodford v. Ngo, 2006)
(f) Courts Cant Impose Additional Exhaustion Requirements: courts are not free to impose an exhaustion requirement as a
rule of judicial administration where the agency action has already become final under APA 10(c) (Darby v. Cisneros, 1993)
D. Parties Seeking Judicial Review
(1) Requirement: parties must have standing - a sufficient legal interest to proceed that isnt too speculative, attenuated, or abstract
a) Constitutional Requirement (injury in fact, causation, and redressibility) (Art. III case or controversy; Art. II take care)
b) Statutory Requirement (zone of interest test)
(2) Key Distinction: directly regulated parties seldom have a standing problem, but beneficiaries who seek to make regulatory systems
have more bite will often fail to demonstrate the requisite injury-in-fact
(3) Constitutional Requirements for Standing (ADP v. Camp, 1970)
a) Injury in Fact: concrete and particularized and actual or imminent not hypothetical or conjectural
b) Causation (but for): fairly traceable to the actions of the defendant
c) Redressible by a court: likely the injury will be redressed by a favorable decision
(4) Injury in Fact: requires concrete & particularized injuries, economic or otherwise, but CANNOT simply be abstract & generalized
injuries, or speculative/indirect causal relationships
Directness of Injury (neighbors who use nearby land (Laidlaw, 2000) vs. someday intentions to visit across globe (Lujan, 1992)
a) Speculative Trips Abroad (No Standing): Ps lacked standing to challenge narrowing of Endangered Species Act to apply
only to US projects cuz theoretical future trips abroad to see animals only a speculative injury, not one in fact (Lujan, 1992)

b) Neighboring Pollution (Standing): neighbors of wastewater treatment plant had standing under Clean Water Act when
claiming their recreational opportunities were curtailed cuz fear of ongoing pollution even w/o actual pollution (Laidlaw, 2000)
Lenient Injury In Fact Requirement
a) Reasonable Fear Requirement: for standing it is sufficient for P to show that his change in behavior (curtailed recreation)
was due to a reasonable fear regarding effects of discharges from nearby wastewater treatment plant (Laidlaw, 2000)
b) Testing Discrimination: Black tester can challenge apt. building owners violation of FHA even though tester had no
interest in renting an apt cuz Congress had taken bold action to eradicate housing discrimination (Havens Realty, 1982)
c) Informational Injury: Arab Americans voters have standing since Congress created a right for all voters to disclosure of PAC
funding & FEC has interfered with statutes purpose of such disclosure (not requiring AIPAC disclosure) (Akins v. FEC, 1998)
d) Generalized Threat of Competition: data processors need not show that a particular member would lose $ as a result of a
particular banks successful effort to take a particular customer from the member to gain standing (ADP v. Camp, 1970)
Rigorous Injury In Fact Requirement
*Note: these often involve general taxpayer challenges, military/foreign policy, or political questions
a) Disclosure of CIA Budget: taxpayers & voters cant challenge failure to comply w/ Cal requirement that govt provide a
statement of account by disclosing CIAs budget [court would be bucking Cong. in requiring disclosure] (Richardson, 1974)
b) Members of Congress in the Military: taxpayers & voters cant challenge arguable violation of Cal prohibition on anyone
holding office in 2 branches in context of large #s of Senators & Representatives who are members of military reserves [court
would be bucking Cong. if it struck down their service in the military reserves] (Schlessinger v. Reservists Committee, 1974)
c) Tax-Exempt Status of Hospitals: poor Ps rejected for treatment by tax-exempt hospitals cant challenge adequacy of IRS
method of enforcing prohibition on tax-exempt status of hospitals that refuse to provide service to poor people cuz they cant
prove that particular hospitals policies were a function of their tax-exempt status (Simon v. E. KY Welfare Rights Assn, 1976)
d) Tax Benefits of Discriminatory Schools: parents of black public school kids cant challenge adequacy of IRS methods of
enforcing ban on conferring tax benefits on racially-discriminatory white academies cuz Ps couldnt prove policy caused
decreased levels of integration in any particular school attended by Ps children [rationale: courts reluctant to tell an agency to use
one enforcement strategy rather than another] (Allen v. Wright, 1984)
e) Prosecutorial Discretion: mother of children entitled to child support couldnt challenge DAs refusal to prosecute father cuz
she couldnt prove that father would have paid rather than go to jail for several years (Linda R.S. v. Richard D, 1973)
(5) Causation: the rigor of the causation requirement, usually but for causation, has depended on the case
a) Lenient Causation Requirement: data processors need not show that a particular member would lose $ as a result of a
particular banks successful effort to take a particular customer from the member to gain standing (ADP v. Camp, 1970)
b) 3rd Party Action Insufficient: poor people were injured by failure of hospital to treat them for free, but it wasnt caused by
IRS failure to withdraw hospitals tax exempt status which if w/drawn wouldnt change hospitals policy (Simon v. E. KY, 1976)
(6) Redressability
a) Civil Penalties (unabated violations vs. wholly past acts): fines paid to the government deter wastewater treatment plants
polluting and qualify as redress in the face of unabated violations (Laidlaw, 2000), BUT were previously insufficient to redress
an environmental injury caused to P or to confer standing when fines were for wholly past acts (Steel Co., 1998)
b) Harm Might Continue: problem not redressible when overseas projects could continue absent U.S. support (Lujan, 1992) OR
hospital might still not serve the poor even under threat of losing tax exemption (Simon v. E. KY Welfare Rights Assn, 1976)
(7) Zone of Interest Test (Statutory Requirement - APA 702): whether the interests sought to be protected by P is arguably within the
zone of interests to be protected or regulated by the statute or constitutional guarantee in question (ADP v. Camp, 1970)
a) Based on APA 702: creates a cause of action for persons adversely affected or aggrieved by agency action within the
meaning of a relevant statute
b) Congressionally Intended Beneficiary Test: who and what did Congress mean to protect in enacting a particular statute?
c) Political Dynamics: justices are very split on standing and cases on zone of interest will likely depend on the political
dynamics of the case (e.g. labor unions, creditors, etc.)

Broad Conferral of Standing

a) Unintended Beneficiaries But Suitable Challengers: competitors of national banks engaged in data processing services
deemed w/in class of aggrieved persons entitled to judicial review of agency action even though Congress wasnt trying to protect
data processors from competition by banks, but depositors from speculation by banks (ADP v. Camp, 1970)
b) Excludes Only Those With Marginal Interests: zone of interest test is not intended to be especially demanding and P need
not prove specific intent to protect interests at stake (Clarke, 1987)
c) Victory Would Further Its Interests: bankers need not prove intent to protect its interests since it is arguably in the zone of
interest if a victory would further its interests (Natl Credit Union v. First Natl Bank, 1998)
Narrow Conferral of Standing
a) Intended Beneficiaries: postal union suing to overturn regs permitting intl re-mailing didnt satisfy zone of interest test since
no congressional purpose in governing statute was intended to protect its employment (Am. Postal Workers Union, 1991)
(8) Associational or Derivative Standing: an association has standing if
a) Any member has standing; AND
b) Interests asserted are germane to organizations purpose; AND
c) Relief requested does not require participation of individual members
*Mere Interest is Insufficient: an association doesnt have standing just cuz its dedicated to protecting an interest that is at stake
(9) Historical Standing Doctrine: Legal Wrongs and Public Rights
a) Narrow Legal Rights Test: shippers lack standing to challenge ICCs rate equalization eliminating competitive advantage
(Sprunt, 1930); private power companies had no legal right to be free from govt-sponsored competition (TN Elec Power, 1939)
b) Broader Public Rights Test (private AGs): radio station has standing for review of FCC decision granting license to new
competitor cuz statute confers standing on anyone adversely affected or aggrieved by FCC order (Sanders Brothers, 1940)
(10) Environmental Standing Timeline
a) Injury-In-Fact Need Not Be Economic (ADP v. Camp, 1970)
b) Environmental and Aesthetic Harms Can Be Injuries-In-Fact (Sierra Club v. Morton, 1972) (hiker in wilderness area
injured by agency action allowing development of that area)
*Scalia Paper on Standing as an Essential Element of Separation of Powers (1983): Take Care Clause permits only the
President to enforce environmental laws and precludes a court from interfering with the Presidents discretion.
c) Geographic Proximity Requirement: P doesnt have standing based solely on use of land in the vicinity of a large tract that
an agency has authorized for development (National Wildlife Federation, 1990)
d) Temporal Proximity Requirement: Ps lacked standing to challenge narrowing of Endangered Species Act consultation to
apply only to US projects cuz theoretical future trips abroad to see animals (Asian Tiger & Nile Crocodile) only a speculative
injury, not one in fact (Lujan v. Defenders of Wildlife, 1992)
e) Rejected Theories: ecosystem nexus, animal nexus, professional nexus all rejected (Lujan v. Defenders of Wildlife, 1992)
f) Take Care Clause (most revolutionary): an additional limit on standing which precludes Congress from authorizing courts to
interfere with Presidential discretion to enforce public laws (Lujan v. Defenders of Wildlife, 1992)
g) Redressability of Civil Penalties (unabated violations vs. wholly past acts): fines paid to the government deter wastewater
treatment plants polluting & qualify as redress in face of unabated violations (Laidlaw, 2000), BUT were previously insufficient
to redress an environmental injury caused to P or to confer standing when fines were for wholly past acts (Steel Co., 1998)
h) Reasonable Fear Requirement: for standing it is sufficient for P to show that his change in behavior (curtailed recreation)
was due to a reasonable fear regarding effects of discharges from nearby wastewater treatment plant (Laidlaw, 2000)
*Global Warming (MA v. EPA, 2006): citizen standing to challenge EPAs refusal to regulate global warming gases?
1. Statutory Authority To Curb Greenhouse Gases
1. Not Authorized: the few CAA provisions mentioning CO2 or global warming are non-regulatory in nature
2. Authorized: greenhouse gases are air pollutants under the CAA, which authorizes action in very broad
language and the only requirement for regulatory action is that there be a negative effect on the environment
2. Availability of Judicial Review
a. Standing: greenhouse gases destroy shoreline, wetlands, estuaries, state & private property that harm
recreation, tourism, & aesthetics (e.g. Katrina/Rita) and EPAs failure to act aggravates rather than helps

b. No Standing: injury to earth is too speculative/general, greenhouse gases from cars are only 5% of total so
not fairly traceable to the EPA, and not redressible by a court if China and other big countries keep polluting
c. Finality: EPA denial of a petition for rulemaking to promulgate nationally applicable regs is final action
d. No Finality: EPAs wait-and-see approach is not final action but inaction presumptively unreviewable
3. Scope of Judicial Review
a. Scientific Uncertainty: EPA has discretion given uncertainty at frontier of scientific research and needs
time to obtain scientific, intl, & policy knowledge to create practical method of curbing greenhouse gases
b. Clear High Costs, Uncertain Benefits: car makers and fuel companies would have to spend a lot to create
new systems to cut CO2, without any certainty that new regs would produce desires results
c. Feasible Interim Alternatives: reduce gas consumption & improve tire performance until science is clear


VII. Scope of Judicial Review of Agency Action

A. Role of Judicial Review: ensure result is reasonable, w/in range of authority conveyed, formulated in manner prescribed, & disappointed had
opportunity to make their views known as Congress provided
B. Downsides of Judicial Review: formalizes and rigidifies agency decision making process, increases time & costs associated w/ agency decisions
(e.g. agency ends up spending lots of resources just to defend cases rather than furthering its mission)
C. Relevant APA Provision (706): reviewing courts shall review the whole record and
(1) compel agency action unlawfully withheld or unreasonably delayed; AND
(2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case of formal rulemaking, formal adjudication or otherwise provided by statute; OR
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court
D. Chevron Two-Step Test: determining whether to grant deference to an agencys interpretation of its own statutory mandate
(Chevron, 1984: upholding EPA change of air pollution source under CAA to refer to all devices w/in single industrial bubble after EPA concluded
definition of source was harming economy & air quality by making it difficult to replace old equipment w/ new lower-polluting)
1. Defer to Congress When Clear (Step #1): if Congress has directly spoken to the precise question at issue, the agency (and court) must
give effect to the unambiguously expressed intent of Congress (courts can enforce compliance cuz its an issue of law)
a. Tools of Statutory Construction: dictionary definitions, legislative history, statutory purposes, canons of construction (though
all of these are criticized scripted colloquies, statutes have many purposes)
b. Congress Can Impose Time Limits on Judicial Review of Agencies, But Courts Can Review if Rule Applies: Congress
can limit to 30 days time w/in which anyone can seek review of an emissions standard, but P can obtain review of whether rule
qualifies as an emissions standard (cuz if not, time limit doesnt apply) (Adamo Wrecking)
c. Courts Can Review Constitutionality of Statutes Even if Congress Precludes Review: even when theres an explicit no
review provision, courts will allow a challenge to a statutes underlying constitutionality (e.g. allowing conscientious objectors
challenge to constitutionality of statute denying him veteran benefits, Johnson v. Robison)
2. Defer to Any Reasonable Agency Interpretation When Silent or Ambiguous (Step #2): if statutes silent or ambiguous, court must
uphold any reasonable agency interpretation of statute (deference appropriate cuz resolution is a policy choice)
a. Definition of Reasonable: the interpretation is within the range of definitions the statutory language will support, and the
agency has adequately explained the reasons for its choice of interpretations ala State Farm.
b. Reasons for Deference to Agencies: high level of technical complexity, factual issues not subject to any definitive resolution,
ultimate decision must necessarily be based on considerations of policy or expertise
c. Binding Precedent Only Absent Other Permissible Interpretations: court decision upholding an agency interpretation of a
statute is binding precedent only in rare case where court finds agencys interpretation was only permissible one (Brand X, 2005)
3. When Chevron Applies
a. Test: when it appears that Congress has delegated authority to an agency to make rules carrying the force of law and the
agency interpretation claiming deference was promulgated in the exercise of that authority (Mead, 2001)
b. Chevron Applies: informal rulemaking, formal adjudication
c. Chevron Probably Doesnt Apply
i. Non-Binding Decisions: opinion letters or policy statements which lack the force of law (e.g. customs classification
decisions w/ no precedential effect & no stated reasons, Mead 2001)
ii. Interpretation As Party to Litigation: if an interpretation is 1st made by agency as a party to litigation
(rationale: agencys interpretation is likely to be a post-hoc justification for purposes of that litigation)
iii. Interpretation of Non-Agency Statute: if interpretation is of statute agency isnt responsible for administering
(e.g. EPA interp of FOIA) (rationale: agencys not an expert)
c. Unclear If Chevron Applies: to interpretive rules, policy statements, informal adjudications, advisory letters, amicus briefs
d. Factors (Mead, 2001): degree of agencys care, consistency, formality, relative expertise, persuasiveness of agencys position
e. Skidmore Deference: applies when Chevron deference doesnt (e.g. when agencys acting w/o force of law but deserves some
deference due to expertise)
f. Scalia: apply Chevron to any agency interpretation that represents the authoritative view of the agency
4. Pre-Chevron Uncertainty: pre-1984 courts vacillated on level of deference to agencies but generally held findings of fact are entitled to
deference (uphold if supported by substantial evidence), but legal conclusions more rigorously scrutinized (courts decide issues of law)
a. Uphold Decision With Basis Reasonably Warranted In Record: upheld agency conclusion as warranted in record w/
reasonable basis in law that newsboy distributors are employees not ICs & thus protected by NLRA) (NLRB v. Hearst, 1944)

E. Standards of Review: agencies must document & explain bases of their decisions (553) & will be held unlawful absent reasoned support (706)
(1) Substantial Evidence on the Record (706(2)(E))
(a) Applies: to review of questions of fact or in formal proceedings (706(2)(e), Universal Camera, 1951, Consolidated Edison)
(b) Fairly Deferential: whether reasonable people could make the finding the agency made based on the record before it
considering both the evidence that supports and detracts from the findings
(c) ALJ v. Agency: a court may more closely scrutinize an agency that reverses an ALJs factual findings (ALJ can assess
credibility) than when an agency reverses an ALJs legal findings (agencies are empowered to reach their own legal conclusions)
(2) Arbitrary and Capricious (706(2)(A))
(a) Applies: to review of questions of fact in informal adjudication & questions of judgment in notice and comment rulemakings
(b) Hard Look Doctrine: judicial review ensures the agency has taken a hard look at the problem and engaged in reasoned
decision-making (e.g. a thorough, probing, in-depth review & a searching & careful inquiry into the facts, Overton Park, 1971)
(c) Reasoned Decision-Making: examine and consider all relevant data and key alternatives, and articulate a satisfactory
explanation for its action (State Farm, 1983)
i. Suggested Alternatives: to get court to apply A&C std, Ps should propose alternatives supported by studies
ii. Hard Look Review: DC applied higher A&C std in 60s & 70s, but struck down by SC to defer to agencies
iii. Disincentive to Rulemaking: 87,000 parties file comments w/ thousands of inconsistent studies on major rules
making it a 5-10 year process to enact a new or amended rule costing millions of dollars
(d) Warning Signs: a decision that was the product of politics and not the facts, inconsistent agency action such as unexplained
changing course, or a persuasive challenge that goes unrebutted
(e) Agency Posturing: agencies engage in elaborate studies and reviews and issue exhaustive preambles to respond to all
arguments and plug every hole to meet the judicially-enforced requirements
(f) Judicial Indifference to Legislative Motive/Wisdom: container regs for fruit industry not A&C when allegedly passed to
preserve fruits consistency & condition, though likely passed to limit out of state competition (Pacific States Box v. White, 1935)
i. Political Motive Okay: agency reweighing costs & benefits of regs cuz of politics okay (e.g. Carter out, Reagan in)
(g) Strength of Challenge vs. Agency Assertions: even w/ same statute courts weigh if agency considered submitted comments
& reached a reasoned decision (e.g. same court upheld w/ weak challenge & plausible agency explanation, but struck down w/
strong challenge & unsupported agency assertions - Boyd, DC 1968 and Brinegar, DC 1974)
a. Weak Challenge, Strong Defense (Boyd - Not A&C): auto accessory makers challenging head restraint stds made
weak arguments unsupported by record; agency gave brief, plausible safety reasons supported by evidence for its rule
b. Strong Challenge, Weak Defense (Brinegar - A&C): re-treaders high-quality studies showing reg for permanent
tire labeling was impracticable (costly/burdensome) & w/o relation to safety trumped unresponsive agency assertions
(h) Failing to Consider Key Alternatives (A&C): A&C to rescind rule requiring every car to have auto seatbelt cuz agency
didnt consider amending rule or efficacy of key alternative (airbag) (Motor Vehicle Manufacturers v. State Farm, 1983)
(i) Arbitrary and Capricious Examples
a. Unexplained departures from precedents and prior policies
b. Failing to consider key alternatives or explain why they were rejected (State Farm, 1983)
c. Weak agency explanation unsupported by record & unresponsive to strong challenge to costly regs (Brinegar, 1974)
d. Failing to articulate a standard which guides its action (Morton v. Ruiz, 1974) (BIA welfare $)
e. Making a decision based on factors not made relevant by applicable statute (cf. Sierra Club v. Costle, 1981)
f. Failure to disclose materials on which agency relied as part of its basis for a final rule (Nova Scotia Food, 1977)
g. Refusing to amend a rule after indicating agency would based on studys findings (Am. Horse Protection, 1987)
(j) Not Arbitrary and Capricious
a. Interpreting hearing to refer to a written exchange of data and views (Chem. Waste v. EPA, 1989)
b. Decision to act through adjudication as opposed to rulemaking or vice versa (Chenery, 1947)
c. Brief and plausible agency explanation supported by evidence when challenge is weak (Boyd, 1968)
d. Reassessing agencys definition of statutory term in light of election of prez from a different party (Chevron, 1984)
e. Political input from prez or congress on policy concerns in proposed rule (Sierra Club v. Costle, 1981)
f. Controlling adjudication through rulemaking to reduce its costs or ensure consistency (Heckler, 1983; Bowen, 1987)
g. Taking identical action on remand with a different and legally permissible basis (Chenery, 1947)
h. Relying solely on hearsay in making an adjudication decision (Richardson v. Perales, 1971)
i. Decision not to take enforcement action (Heckler v. Chaney, 1985) (FDA lethal injection challenge)
(3) De Novo (706(2)(F))
(a) Applies: only in (1) adjudications where agency fact-finding procedures are inadequate or (2) issues not before the agency are
raised in a proceeding to enforce non-adjudicatory agency action (e.g. applicability of a regulation to the defendant)
(b) Courts: if de novo standard applies a court decides it under preponderance of the evidence and ignores the agencys decision
(4) Reasonable Basis in Law: mixed questions of fact and law (NLRB v. Hearst, 1944)
(5) Review of Agency Action Unlawfully Withheld or Unreasonably Delayed (706(1))
(a) Approach: courts review agency failure to meet timetables but usually only for good faith

E. Remedies
(1) Timetables: courts recognize limited agency resources and so remedy is often limited to requiring agency to produce a timetable
(2) Vacating Rules: courts may often vacate rules pending agency reconsideration so that the courts decision is stayed and the rule
remains in effect until further court proceedings (protects against disruptive consequences of an interim change that may itself be changed)
(3) Reviewing Court Cant Add New Procedural Requirements: courts can only require procedures required by rule, statute, or
constitution & cant add to the procedures required by the APA (VT Yankee v. NRDC, 1978) (barring court-added limited scope hearings)
Do the following doctrines pass the VT Yankee test?
a. Nova Scotia Foods (1977): must identify any data sources / studies on which you propose to rely
i. No: Nova Scotia Foods doctrine is illegitimate cuz 553 of the APA doesnt require studies
ii. Yes: disclosure of studies is inherent to make comment process a meaningful procedure
b. State Farm (1983): hard look review in which agency must discuss adequately alternatives, gaps in data, and sufficiently
respond to comments in informal rulemaking
i. No: hard look is more searching than APA 553s concise & general statement
ii. Yes: APA 706 allows A&C test sufficiently malleable to include more searching review
c. HBO (1977): requiring inclusion of ex parte communications in record of rulemaking
i. No: APA 553 doesnt address ex parte communications at all
ii. Yes: APA 553 is intended to make rulemaking accountable to public so ex parte must be disclosed
F. Typical Modern Dispute (Frontiers of Science): existing data shows harms of high-level exposure, but there are inherent uncertainties as to
whether the harm exists at lower levels and therefore whether the agency should be allowed to regulate it
(1) OSHA Regulation Of Low-Level Benzene Struck Down (Benzene, 1980): SC struck down OSHA decision to block exposure to lowconcentrations of Benzene in workplace because
a. Limited Data, Not Extrapolated: existing evidence only showed that high concentrations are linked to cancer and OSHA
produced no data response curve showing likely effects outside high concentrations
b. High Costs, Uncertain Benefits: compliance would cost billions, yet data didnt demonstrate clear benefits
c. Statutory Language: statute requires an initial finding of fact that pre-existing std creates a significant health risk
(2) Refer to Statute (Benzene Plurality): agency failed to meet statutory requirements (e.g. initial finding of significant risk)
(3) Defer to Agency (Benzene Dissent): agency acted within its discretion given inherent uncertainties at frontiers of science
(4) Appropriate Judicial Role: is it appropriate for judges to play a role in technically complex scientific decision-making
a. Learn the Substance: judges can try to learn the substance through use of experts, special masters
b. Employ Procedures: judges can require agencies to ventilate the issues through oral hearings to ensure the agency
understands the issues and can make supportable findings of fact (consistent w/ VT Yankee, 1978?)
c. Defer to Agency: judges can defer to agencies in light of their superior expertise and the inherent uncertainty