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Dalton v. Specter (base closing commission)

1. Congress wasnt closing bases (Sen. would filibuster or sue) so Cong. created elaborate structure
involving DOD and base-closing commission
i. Reasons for commission
- DOD not independent like the Commission (has interest in keeping bases open)
-partisan politics Pres. wants to close where cant be affected in election
-Pres. controls Sec. of Defense whereas com. is ind. so limits Pres. control
ii. Congress and Pres. give some of power to com. b/c want to escape accountability
BUT here, lack of direct accountability is only way to get bases closed
2. No review of agency decision
i. Congress purposely eliminated review provision
ii. commission only recommending Pres. and Cong. still make final decision
--Franklin v. Ma
(a) subordinate agencys decision submitted to Pres. for review, is not final
(Pres. could revise agencys action)
(b) Pres.s actions not reviewable under APA because Pres. not agency; even though decision final
iii. judicial review must be available to det. whether Pres. has stat. authority for whatever action takes
UNLESS stat. or Const. commits decision to Pres. discretion
II. Constitutional Framework
A. Delegating Leg. authority
1. Sep. of powers
a. implicit in Const. implicitly authorizes other agencies
i. I.8 (grants to Congress) some one needs to do these things
-implicit that Pres. is overseeing others actions
b. How can sep. of powers be frustrated?
i. can delegate powers to another branch
ii. can take more power from another branch (aggrandizement)
iii. encroachment (limit authority of other branch by taking if for self)
2. Nondelegation Doctrine to be const., need intelligible principle to conform to
a. Benzene Case (Ind. Union v. API)
i. OSHA stat. said to set as low as feasible
(a) OSHA looked at tech.-feasibility (bus. capable of adhering w/o going out of bus.?)
(b) said if no evid. that level safe, then dont permit
*arbitrary choice couldve equally chosen rule saying if no evid. that unsafe permit
ii. *maj. says Cong. didnt make essential choices (what dec. should Cong. have made?)
(a) reads feasible as extra language not binding
-could refer to tech. feasible or cost feasible
(b) not Const. looks to other part of stat. that says Any std. must be R nec.
-before pass any std. need to make def. of safe and threshold det. if workplaces arent
safe (then know if std. R nec.)
*legal defect is there was no threshold def. of safe
--arg. doesnt really make sense b/c mustve decided places unsafe if making std.
iii. Concurrence - Rehnquist: Cong. passing buck to courts court has to interpret stat.
(a) gave too much discretion to Sec. --- violates nondel. doctrine
(1) no intelligible principle to abide by
(2) no indep. authority over subject matter
(3) not nec. not unR and imprac. to compel Cong. to prescribe detailed rules
(b) legal defects when Cong. passed the stat.

iv. Concurrence Powell: reads feasible to req. cost feasibility (cost-benefit analysis)
b. Nondel. concerns
i. accountability imp. choices of social policy are made by Congress
ii. want govt. actors to act by some guidelines
iii. *want std. by which to measure / check govt. action (ct. needs something to review w/)
c. Loving lim. on del. do not apply where entity exercising the delegated authority itself
possesses indep. authority over the subject matter
d. Mistretta (sentencing commission)
i. Congress creates com. in jud. branch w/ no jud. f(x) ---- its an ind. agency
-no branch has absolute control (its ind. from Pres. control)
ii. **Cong. must provide intelligible principle by which com. operates
(a) Cong. just needs to make the (an) imp. decision (intel. principle std. is a low barrier)
-*need absence of std. to be imperm.
(b) in det. what Cong. can do in seeking assistance from another branch, the extent and
char. of that assistance must be fixed acc. to common sense and the inherent nec. of the
govt. coordination
(c) sep. of powers does not req. that ea. branch be entirely sep. and distinct
iii. to be unC, agency must have power best perf. by another branch or del. must undermine
another branchs integrity
iv. What if Cong. just gave jud. list of f(x) to consider? (instead of creating a commission)
-jud. already interprets laws
-cts. would still have discretion
-Cong. could pass another stat. if disagrees w/ guidelines (sentencing = law-making)
f. Whitman v. Amer. Trucking (CAA std.)
i. std. doesnt define what means to protect peoples health BUT more spec. (than Benzene)
b/c delineates safety stat. (doesnt use to extent feasible)
ii. here Cong. made fund. policy choice (not made in Benzene) its a safety-based stat.
--theres less wiggle-room than Mistretta well w/in outer limits so no viol.
iii. issue whether Cong. can del. leg. power (Stevens says can and Scalia says cant)
iv. Del. only unconst. when no std. to apply or when conferred auth. to reg. whole econ.
-have allowed intelligible std. of in public interest
g. Cong. cant do everything (give away nothing) but cant delegate 100% (then theres no acc.)
i. Scalia: no obvious point along spectrum to draw line
ii. ct.s have drawn line up to 95%
--ok b/c agencies usually strictly abide by rules (laws)
--also, even if Cong. doesnt pass spec. stat., Cong. has a # of means of making sure
agency acts appropriately, e.g. cutting off $
--Pres. also makes sure agency acts approp. and Pres. accountable to the voters
iii. (Due to above) ct. usually look at what Cong. is given away and not how much
B. Delegating Judicial Authority
1 Cong. has long held that it may w/hold parts of the Art. III jud. power from whatever lower cts it
does create
2. Commodity Futures Trading Commission v. Schor
-stat. says review dec. in Art. I ct.
a. 2 overlapping suits
i. investor sues broker in CFTC ct.
ii. broker counterclaims and files suit in fed. ct.
iii. then CFTC ct. only
iv. broker wins so Schor sues saying agency had no authority to litigate
b. Ex. of how agency acts like:
i. leg.: creates rules of conduct here, rule says agency has jur. over counterclaims

ii. Jud.: adj. claims

iii. Exec.: enforces rules (when widespread abuse)
*giving agency all 3 kinds of power more convenient and efficient
(BUT sep. of powers intended to make things inconvenient . . . )
c. CFTC isnt an Art. III ct. b/c no char. (no life tenure, etc.) so why ok to adj?
i. Art. III ct. still needed for CFTC to enforce order
ii. loser can still seek review in Art. III ct. and reviews are de novo
iii. ct. does not exercise all ordinary powers of district courts
**Art. III still plays large role
d. Crowell
i .agency adj. no dif. than when III ct relies on special master or magistrate
ii. makes distinction betw. public and private rights
(a) public right rights betw. govt. and individual
--govt. doesnt have to allow adj. in III ct. (can restrict adj. to art. I ct.)
--b/c govt. didnt have to create right in first place
(b) private right right of action ag. another individual
--usually heard in III ct.
--must be more careful when del. private rights to agency
(this case is an ex. of del. a private right to an agency adj.)
e. Maj.: in this case, agency can hear private right case b/c wont undermine III too much
*as long as III ct. plays meaningful role and Art. I ct. benefit to III, then permissible
--look at degree of jud. control saved to fed. courts, cong. purp. behind del., dem. need
for del., and lim. nature of del.
f. ct. polices reassignment of jud. power more stringently than del. of Cong. power
*if non-Art. III ct. doing hearings, then Art. III ct. must play meaningful role for hearings
to be const.
C. Delegating Exec. Authority
1. Cong. Oversight on Pres. Activities 3 ways to limit
a. lim. on appt. powers / discretion
b. impose lim. while officials in office
c. impose lim. on removal
--lim. on appt. and removal affects Pres. ability to control
2. Appt.
a. 2 tiered system
i. major officials need advice / consent of Senate
ii. inferior Congress decides who appoints : Pres., Cts. OR heads of dept.
b. vesting appt. of major officials in both branches increases accountability, serves as a check
c. Cong. can bypass Pres. when deciding who should appt. inf. off. b/c Pres. appt. dept. heads
--so not really bypassing Pres.
3. Removal
a. Myers (postmaster general) power to limit incident to power to appoint
i. SC says Pres. has exclusive power to remove superior officials
(a) needs so can execute faithfully
(b) needs to have power to make sure appointees follow him
(c) lack of express lim. means none intended
ii. Cong. can lim. removal power over inf. officials (just as can lim. appt. power)
--BUT Cong. cant remove Pres. power (Cong. cant remove exec. officers itself)
-Cong. can encroach by lim. but cant remove Pres. and keep power for self
b. Morrison (Ind. Counsel)
i. overrules Humphrey **
ii. case has appt. and removal issues

(a) Appt: if A.G. thinks person acting illegally, can req. jud. to appt. Ind. counsel
(b) removal: lim. to cx
iii. Appt.
(a) Cl. doesnt address interbranch appt.
here, not a prob. though b/c ct. always had power to appoint special investigator/pros.
(b) only imperm. if interbranch appt incongruous
iv. How delineate betw. principal and inferior officers? (really just use intuition)
(a) resp. (substance of job)
(b) subordinate?
(c) delineated in stat.?
(d) tenure
(e) discretion (how much given)
v. Removal
(a) can only limit to extent wont interfere w/ Pres ability to faithfully execute laws
(central to f(x) of Exec.)
(b) Cx Pres. disagreeing w/ person is not suff. for removal
--very little case law on def. of cause
--even if Pres. had power, have checks: polt backlash and accountable to voters
vi. **** Cong. can limit Pres removal power
--Pres. needs some control over agency officials
--can give at appt. or removal (discretion at one end may justify limit on other end)
D. Different Guises of Leg. Control of Agencies
1. Controlling Policy through veto, directive, budget
a. Chadha
i. AG could suspend deportation BUT 1 house could override suspension w/ resolution
-Cong. wanted to reserve power to undo AGs decision
ii. *SC says **Leg. veto are unconst. b/c they circumvent leg. process in Const.
(no presentment or bicam.)
(a) leg. veto allows Cong. to evade Pres.----when Cong. making imp. decisions, cant cut
out Pres.
(b) if Cong. doesnt like the way Pres exercising del., needs 2/3 maj. to override veto.
(c) makes delegation problem worse; Cong. doesnt have to be clear or narrow / precise
iii. Leg. Acts req. that act fulfill presentment and bicam. clauses
(a) Act is Leg. when it alters the legal rights, duties, and rel. of people outside the leg. br.
--has a leg. char. and effect
--to det. look at who would be doing act if agency didnt exist-- leg.?
(b) rules by exec. agencies have force /effect of law
--the rules are a leg. power but are ok so long as following intelligible principle
(c) Acc. Scalia, agencies cant have leg. power BUT the Majority says no del. problem
*Maj. presumes the branch acts w/in its power
b. Bowsher (comptroller general)
i. if had del. to Pres., would be fine b/c have intelligible principle
ii. here Cong. del. to a leg. officer though
--trying to control Exec. f(x) acc. the maj.
--Stevens also thinks theres a Chadha problemtrying to cut the Pres. out
iii. *Cong. can del. boundless discretion to a non-leg. agency but cant give to leg.
-giving power to self concern b/c bypassing Pres.
iv. Cong. cant have a direct or active role in the supervision of executive officers
-if officer is removable by Cong., can only have leg. powers
E. Intersection of the Sep. of Powers Doctrines
1. Clinton (line item veto)

a. broad del. really an intelligible principle?

b. transfers true powers of leg. which is a real problem
c. Dissent:
i. not really a veto--it's just a decision on how to execute the law
ii. Pres. has discretion to decline to spend on a provision--this is an extension to that
iii. no nondel. problem b/c only an exec. role - not getting any lawmaking power
d. 3 questions to det. if something violates sep. of powers
*Has Congress given Pres. the wrong kind of power? (i.e. non-exec. power)
*Has Congress given Pres. power to encroach upon Cong's own const. reserved territory?
*Has Congress given the Pres. too much power, violating the doctrine of nondelegation?
III. Exercise of Admin. Power
A. Fundamental Procedural Categories
1. Procedural frameworks Const.
a. Londoner
i. Background
(a) taxed street for repavement
(b) some residents sued (minority didnt want)
(c) res. had notice and were allowed to complain but couldnt appear in person
(d) Bd. never responded and held no hearing
ii. *need opp. to appear and state case
(a) dont have to have trial but must allow appearance
(b) may be written complaints insuff. in this case b/c lack educ., etc.
(c) dont know if written brief would even be read
(d) can respond to Bd.s arg. if in person
iii. **property owners have to get a hearing get more than mere written complaint
where state leg. commits tax power to subordinate body, due process req. that at some
stage before tax is fixed, there is a hearing
b. Bi-Metallic
i. taxed whole city (in Londoner only taxed block)
ii. *not entitled to hearing (below are dist. from L.)
(a) huge number of people affected
(b) not exceptionally affected
(c) no individual grounds
iii. govt. wont work if hearing req. for every decision
-even if pl. had ind. ground, may still not be req. to have hearing
-its arguable that could satisfy all 3 dif. and still not get hearing so whats real dif.?
*maybe its that the numbers must be real small and small scope
--if big scope or large numbers then people have vote whereas sm. # dont have vote
iv. even in a RM, when an agency is making a quasi jud. det. by which a very sm. number
of people are exceptionally affected, each upon individual grounds, in some
addl procedures may be req. to afford the aggrieved individuals due process
c. L v. B.
i nature of action
(a) L. was more like adj. action so get same rights (if Leg. goes too far, get rights like at
(b) B. was more like leg. action so dont have to get all rights
*cases provide little guidance on where to draw the line though
ii. whos making decision

(a) L. says only applies b/c state del. decision

--when state del., then dont have recourse of voting out of power
--when state itself makes tax hike, know peoples grievances are taken into acct.
--w/ local board, however, bd. may not take grievance into acct.
--do act if majority wants and pay no heed to minority
d. whether hearing is req. depends on:
i. whos making the decision
ii. whos affected by the decision
iii. unelected officials making decision usually req. more procedural protection
APA gives more protection BUT only affects fed. agencies
2. How dist. betw. leg. and jud.? (thereby det. how much protection to give?)
a. leg
i. many affected
ii. facts generalized
iii. prospective
iv. making policy
b. jud.
i. few affected
ii. facts particularized (decision turns on the facts)
iii. retrospective
iv. applying policy
c. also look at need for accuracy (adj.) v. consistency (leg.), efficiency, and acceptability
3. APA
a. General info.
i. stat. framework for what agencies can do (Const. gives min. protection and APA ups that)
ii. imposes limits on how can act
iii. codifies certain powers for agencies
iv. creates 4 categories of agency action: informal adj., inf. RM, Formal RM, F. Adj.
v. 500s reg. powers of agencies
vi. 700s govern jud. review
b. 500s
i. RM v. Adj.
(a) adj. def. in 551(7) and subdef. in 551(6)
--defined as including anything not rulemaking its a residual category
--includes orders and licensing
(b) RM defined in 551(5) and then 551(4)
--defined specifically -- designed to implement, interpret or prescribe law or policy
(c) no distinction betw. number people affected
--RM says gen. OR part. application
(d) no distinction betw. making / applying policy
--can use RM to interpret or prescribe
(e) Prospective v. Retr. is distinction
--def. of rule says and future affect
--BUT cant be only distinctionwould make too much RM
(f) * use common sensedont rely solely on stat. *
*Det. by Stat. and Legal Culture
ii. 553 RM
(a) in subsect.(b)must give general notice unless can give actual notice to affected parties
can make rule that only applies to a couple of people
(b) subsect. (c),
(1) must give opp. to part. / comment

(2) distinguishes betw. RM on record and off record

--on record governed by 556 and 557 (formal)
--RM doesnt have to be on record
inf. is default method which doesnt req. that rule be based on presented evid.
(c) subsect. (d), agency must give statement of rule
(d) APA req. more than due process
-due process doesnt req. comment, notice, or a statement.
iii. 554 Formal ADJ
(a) formal Adj. 556 and 557
(1) F. Adj. is default method
(2) when deciding if formal/inf., look at organic stat. will detail whats on record
(b) informal
(1) look at organic stat.
(2) APA doesnt really address, look at 555 and Const. (due process)
iv. 556 details what specific trial type procedures get during formal proceeding
-can restrict hearings to written comment
v. 557 what happens after ALJ decision made
4. Vermont Yankee
a. **in inf. RM, Ct can only req. 3 things detailed in 553 (notice, comment, and statement)
b. Holding: Agency only has to comply w/ APA std. (thats the max. std. ct. can impose)
i. extremely compelling circ. or
ii. const. constraints or
iii. if agencys actions as whole raise bar or
iv. another stat. or agency rules place higher req. on agency procedures
*to req. agency to do more, ct. must point to some text (cant do on own)
c. distinction betw. F and Inf. very imp.
--here, agency was using informal RM, so only judge on APA std.not even on record
B. Formal Adjudication
1. governed by 554, 556 and 557
2. FTC v. Cement
a. def. claim that agency made decision before went to trial; investigation bias
b. * ultimate decision is made by agency
i. presume agency decision-makers are open-minded
ii. Congress intended agency personnel to make decision
-req. commission to dismiss self would defeat congressional purp. in creating agency
iii. need agency to investigate And hold hearing no other way
-why have agency if can only use III ct.?
iv. still have review in fed. court
3. Armstrong v. CFTC
a. cant seek review if dont know what decision is
agency cant just say that ALJs finding is substantially correct too vague
b. want commissioners to decide b/c more accountable and Cong. gave them the power to make
c. **Must make clear statement of approval / sign off on ALJs decision
i. dont need to provide ind. statement if specifically adopts ALJs opin. that sets forth adeq.
findings and reasoning BUT if not specifically adopting, need independent statement
ii. no part. form of adoption is req. if agencys action permits Meaningful Appellate review
4. Airplane Union Case (PATCO)

a. agencies usually have functions of all 3 br. and really cant maintain true sep. of powers
--need interplay lawyer advises on what case to bring and then argues for agency in hearing
--want polt influence on ALJ b/c want them accountable (only way its Const.)
b. *Ban on Ex Parte Contact (only in formal hearings)
i. defined in 551(14)
-communication not on public record
-so no R notice to all parties
-ban doesnt include status reports
ii. governed by 557(d)
(a) dont give/receive info. from any interested party outside the agency
--interested party is anyone w/ more interest in the matter than the general public
(b) 2 remedies
(1) disclose communication and contents
(2) violating party must show why claim shouldnt be dismissed or otherwise adversely
--when deciding whether to void claim, look at gravity, influence, benefit to party
making improper contacts, other partys knowledge of contact, and if voiding
would serve useful purpose
iii. have ban b/c dont want appearance of bias
-want proof that decision made on record
iv. only banned for formal actions --- only when under 556 and 557
v. not limited to ban on communications w/ outsiders---includes others in agency
c. Ex Parte contact in this case
i. meeting w/ general counsel
(a) gen. counsel is considered an outsider
-554(d) no investigatory person can participate in decision
(b) ct. does nothing about this meeting b/c
(1) conversation had no effect / impact
(2) didnt discuss facts or what would be appropriate decisions
(3) cant prohibit all agency interaction
--contacts like this happen frequently and cant stop them
ii. Sec. of Transp.s phone call
(a) status request is exempt from ban b/c not relevant to merits
(b) here, though, seems like polt pressure
iii. dinner w/ union pres.
(a) judges can have social contact w/ people
(b) here, not imperm. b/c no effect, no benefit to any party, no party denied opp. to refute
5. Portland Audubon Socy (White House pressure)
a. W. H. staffers actions are impliedly those of the Pres. and Pres. cant tell agency how to act
i. Pres. posn renders him an interested person in every agency proceeding
ii. Cong. gave committee discretion to make choice so Pres. is an outsider
iii. making Pres. subj. to ban does not violate sep. of powers
-doesnt prevent Exec. from accomplishing const. f(x) and Cong.s obj. outweigh any impact
b. remedyagency must put ex parte contacts in record
-then appellate court can rule on the true record (its a deterrent)
6. Pillsbury (congressional involvement)
a. FTC called in to Congress and gets reamed then makes decision ag. Pillsbury
b. here, Cong. interfered during hearing (told agency thought was not following stat.)
i. contact is public so not nec. a violation BUT seems wrong and not on agencys record
ii. Cong. can only interfere when agency doing leg. f(x)when hearing pending, agency is

doing jud. f(x) so Cong. cant interfere

C. Informal Rulemaking
*RM governed by 553, informal covered by 553(c)
1. req.
a. notice
b. comment can limit to written comment
c. concise and general statement of basis and purpose
--findings of fact and conclusions of law are not req. for informal RM
2. before make rule, look at:
a. law stat. authority/regulations/Const. and CL constraints
b. policy costbenefit analysis, how enforce, CL remedies suff. to solve problem?
c. fact scope, frequency, harm exists?, rule worthwhile?
3. dont have to base decision on record can use knowledge, experience, . . .
4. NRDC v. EPA
a. new rule doesnt have to be identical to draft publicized BUT
*final rule must be logical outgrowth so the interested parties couldve anticipated it
--if a new round of notice/comment would give 1st opp. to comment, then must do N/C again
b. if make substantive change, new round of notice and comment
5. Nova Scotia (whitefish)
a. Notice / Comment
i. *must publicize pertinent scientific material when its readily available and the agency has
no special expertise on the precise parameters involved --Even in Inf. RM
ii. if the failure to notify of scientific research actually prevented the presentation of relevant
comment, the agency has not considered all the relevant factors so its acting A/C
**when basis for proposed rule is scientific decision, the scientific material which is believed
to support the rule should be exposed to the view of interested parties for their comment
b. Concise Statement
i. test of adequacy: to be meaningful, statement must show what major issues were discussed
and why decided as such
ii. admin. process must disclose whether the proposed reg. is considered commercially feasible
or whether other consid. prevail even if com. infeasibility is acknowledged
c. ct. says b/c reviewing under A/C std., must review whole record
-here, ct. says decision to destroy industry w/o careful info. is A/C
d. decided before Vt. Yankee but never overruled
i. Ag. its use today
(a) Vt. Yankee gave agencies much more deference
(b) APA only says get to offer data says nothing about receiving data
(c) effect of ruling is to allow experts to cross BUT Vt. Yankee says no cross req.
(d) ct. requires detailed explanation of decision, but APA only req. Concise and Gen.
(e) ct. seems to req. a record BUT this is Inf. RM
(f) slippery slope would have to reply to all comments endless rounds of comment
ii. For its continued use
(a) APA req. comment
(1) whats use of req. comment if not meaningful and how meaningful unless have data?
(2) supposed to acknowledge all relevant material when make rule so meaningful
(b) no slippery slope problem b/c limited scope/number of people involved
-just disclosing scientific evid. and not all evid.
iii. Questions
(a) organic stat. req. more?
(b) 553 req. meaningful comment?

(c) due process req. more?

(d) size of industry have affect?
6. 3 kinds of records
a. record for participation material available for public comment
b. record for decision all the material considered by the agency
c. record for review material presented to court as basis for deciding whether rule has suff.
basis to satisfy applicable std. for jud. review
7. Ind. Oil Tankers
* statement must justify decision w/ stats objectives
-must give adeq. acct. of how decision serves obj. and why alt. measures were rej.
8. HBO
a. agency had contacts w/ many parties, except the public interest groups
b. **agency can have unlimited contact until give notice
once give notice, must put all contact in record
c. this decision has faded away b/c has many problems
i. textual: Inf. RM doesnt have to be on record; agency can decide for any reason
APA says nothing about ex parte com. for RM
ii. policy: HBO says if do it, must report But not nec. good policy
-informal contact is nec. and want agency to have these contacts
iii. still have protection from Ind. Oil Tankers
-if base dec. b/c of contact w/ 1 group, then can attack rule as being outside obj. so A/C
d. HBO never overruled, but not followed in real RM cases
-most of virtue of RM is lost under these req.
-post-decision, DC Cir. said HBO looked like adj. so treated as adj.
9. Steelworkers
a. atty who worked on rule, worked on comments
b. *RM doesnt req. separateness of functions (not like adj.)
-want the person who works on the rule to look at the comments b/c most skilled in subject
-RM is an institutional, not an ind., process, so not vulnerable to communication w/in agency
10. Sierra Club v. Costle
a. ex parte visits w/ Byrd, White House staff, et al
b. * Pres. can have contact and agency doesnt have to disclose
i. *inf. RM doesnt present ex parte contact threat UNLESS inf. RM is of quasi jud. nature
ii. Pres. and staff has need to be briefed and comment on agencys reg.s
c. Congress can have contact UNLESS
i. content of pressure is designed to force Sec. to decide upon factors not made rel. in stat.
ii. Secs det. must be affected by those extraneous consid.
d. agency must still justify rule on the basis of the comments and the stat. criteria so not worried
-pressure taints dec. only if leads agency to base decision on stat. imperm. consideration/ obj.
e. this doesnt violate Chadha b/c Congress-member doesnt have dispositive effect
--agency is still free to make any decision
D. Even more informal RM
1. Exceptions to 553
a. Foreign affairs or military or housekeeping
b. 2 (more) exceptions:
i. interp. rules, gen. statement of policy, rules of procedure, opinion letters, guide letters
-interp. rules: explains how to adhere to rule, elaboration of pre-existing rule, guideline
-gen. statement of policy: speaks prospectively about agencys future actions (what can do)
ii. good cx finding that notice/public procedure imprac., unnec., or contrary to public interest
-applies when rule would otherwise req. notice/publication and comment
c. * if dont follow procedure, and no good cx, then only valid if fall under (b)(A) (or (a))


d. leg. v. interp. rule

i. leg rule is substantive and req. comment
-has force and effect of law, is clearly binding
ii. interp. rule is encompassed by the stat.
-has no force /effect of law
iii. *if theres a change N/C
*if rule is only a natural elaboration, then no need for N/C
iv. *if guidance phrased in mandatory terms, and R person would read as binding, then N/C
-if rule leaves discretion, then supports prop. that doesnt have force of law, so no req.
v. any time an agency alters a pre-existing substantive rule, the change must undergo N/C
vi. when stat. gives Sec. broad discretion, then initial rule substantive so need N/C
-b/c theres no way to predict rule from orig. stat. (agency could come up w/ any number
of R reg)
-after initial rule, rules that flow R more interp.
vii. agencys view of whether binding is imp.
-if rule so imp. its binding, agency should have to undergo N/C
e. Good Cx. exception
i. limited to emergency, exigent situations
ii. stat. needs to specifically allow use of good cx exception for later use by agency
iii. usually only validates no N/C as long as emergency exists
-once emergency ends, need to undergo N/C
f. Utility Solid Waste Activities Group
(a) amend rule w/o N/C
(b) good cx exception must be narrowly construed, lim. to emer.
(c) situation imprac., when agency finds that due and timely execution of its f(x) would be
impeded by notice (e.g. when new safety rule must be put into place immediately)
(d) unnec. situations in which the admin. rule is a routine det., insig. in nature and
impact, and inconsequential to the industry and to the public
--refers to issuance of minor rule in which public is not particularly interested
(e) public interest ground sit. in which publics interest would be defeated by any req.
of advance notice
g. Air Transport (guidelines about risk assessment method is leg. so need N/C must choose 1 of
2 options so binding not merely interp.)
i. interpretative rules do not req. N / C
--if rule fairly encompassed in stat., then interp.(doesnt impose new rights or duties)
ii. if interp. is inconsistent w/ pre-existing reg., N/C
h. General Electric
--to det. if substantive look at:
i. agencys own char. of action
ii. whether action published
iii. whether action has binding effect on private parties or agency
-binding if: -change in substantive law which agency intends to make binding OR
-appears on face to be binding or is applied as binding (e.g. mandatory lang.)
-affected parties R believe that failure to conform will bring adverse cons.
iv. here, fact that agency leaves discretion tends to show no force of law
E. Formal RM
1. Florida East Coast R/R (defines horizontal axis for RM)
a. outside stat. tells whether action is F or Inf.
*to be F., stat. must req. hearing to be on record
b. in this case, setting natl std. policy making which is RM (also, 551 def. ratemaking as RM)


c. *SC doesnt address req. of F.RM. b/c says this is Inf. RM

i. First question: Is the act RM?
ii. if so, 553
iii. on record? look at stat.
(a) in this case, stat. doesnt req. on record so Inf. RM
(b) ** after hearing doesnt mean on record not suff.
-Ct. says after hearing only an optiondont need to do it
-hearing only means rule prospective
(c) Ct. says stat. doesnt have to precisely say on record but must be pretty close
-can use other words when combined w/ other indication such as intent (perhaps)
d. Stat. must clearly indicate on record for it to be F. RM
-presumption is that RM is Inf.
-Cong. could always req. more under 559 if wanted to (559 allows Cong. to add req.)
-now have hybrid RMmore req. than 553 but less than 556/557
--can be req. by Congress or decisions such as Nova Scotia (scien. evid.)
F. Informal Adj.
1. 555(d) must give prompt notice of denial and brief statement of grounds for denial
2. 554 tells when must be formal, if informal, look at 555
3. SeaCoast (EPA and hot water discharge)
a. stat. said get opp. for public hearing
b. **no req. of on record BUT presume formal adj. when Cong. req. hearing
-presume must be on record unless stat. says otherwise
c. adj. dif. std. b/c
i. affecting small number of people
ii. retroactive nature of adj. req. more protection
iii. not as burdensome
iv. when looks like ct. adj., ct. more likely to req. F. Adj. (err on side of caution)
d. hearing doesnt req. that agency allow for cross556(d) limits cross to where req. for full
and true disclosure of facts
4. Chem. Waste Mgmt.
a. Chevron give agency deference as to interp. of ambiguous parts of stat.
b. ct. upheld EPAs choice to do informal adj. b/c needed to defer to EPA
c. **Case says that agency can effectively decide what APA means
4. SC has NOT RESOLVED the SeaCoast / Chem. Waste conflict
5. Pension Benefit v. LTV
a. applies Vt. Yankee to adj. can only req. what APA req. (here, 555(d) and Const.
--ct. can only impose specific procedural req. that have basis in APA on agencies
G. Choice of Policymaking Mode
1. how choose between using RM and Adj?
a. Fairness
b. Efficiency
c. which higher quality policy (e.g. want retroactive or prospective?)
d. Polt accountability
--may be easier to escape accountability under Adj. b/c
can say decision turned on specific facts,
easier to bury policy judgment in ct.,
ct. not accountable,
exec. wont be held responsible
--BUT no ex parte contact in adj. and know how/why decision made so evens out
e. Adj. tends to make rule incrementally while RM makes a clean break


2. APA is silent, but sometimes stat. expressly req. one, though often Cong. gives power for both
3. Chenery II
a. Chenery I ct. can only judge agency decision on basis of grounds offered
--to test basis offered, agency must set forth basis w/ such clarity to be understandable
--if decision not supported by grounds asserted, give agency another opp. to interp. correctly
--Ct. shouldnt do interp. (thats agencys job)
b. in this case, the SEC makes a prophylactic rule, BUT not through RM
--SC says no rigid req. that always need to use RM
*when agency wants to make policy, it has discretion to make decision via RM OR adj.
-can chose to use adj. to make rule (dont nec. need to create std. to apply during adj.)
c. ct. always has option of saying rule is not supported
i. *choice of using RM or adj. lies primarily in informed discretion of agency
ii. BUT ct. may have power to req. agency to use one or other (hasnt yet though poss. exists)
4. Pearson v. Shalala
a. agency must define criteria applying otherwise really just denying request w/o explanation
b. dont need to define term in initial gen. reg. or all at once BUT must be possible for reg. class
to perceive principles which are guiding agency action
5. Bell Aerospace
a. there are virtues to either way of making policy and agency is best suited to making choice
i. can make policy on case-by-case basis
ii. best for when too hard to make gen. rule need to proceed w/ caution
b. ct. not suited to draw line
*most agencies use RM primarily, save the NLRB
6. agency can (even) make broad gen. statements via RM and then apply in adj.
-can pre-make factual det. through RM so long as ultimate decision is individualized
H. Private Parties and the Shape of the Admin. Process
1. United Church of Christ v. FCC (radio stn. license)
a. agency not req. to allow people to intervene
b. in this case, agency not nec. suff. representative of public interest though
-how discern which group is best rep. of public interest?
c. case has very narrow holding
*agency must allow to intervene to rep. public interest
*agency can prevent private interest from posing as public interest
-only affects public interest groups
d. consequences of case
i. adj. more like RM
ii. interest-rep. model agencys decisions are better w/ more voices
-legitimate interests of listeners should be part of record
iii. in certain cases, agency should let certain public interest groups intervene
iv. can still consolidate cases, etc.
*agency has wide discretion to promulgate rules about participation
2. Post-UCC agencies have tremendous discretion in deciding to allow intervenor
ct. shouldnt override normally (due to Vt. Yankee and Chevron)
3. Heckler v. Chaney
a. wanted to compel agency action
b. *presumption of unreviewability when agency makes decision to not enforce rule
*cant compel agency to act
c. case turns on 701 (jud. review)
i. decision to enforce is committed to agencys discretion so no review
ii. when agency acts, ct. can review b/c govt. has wielded coercive power over a party
iii. when no action, though, no exercise of coercive authority, so ct. doesnt need to act


-havent affected anyones liberty or prop. rights

iv. *presumption overcome when Cong. places req. on agency
d. Brennan Concurrence
--suggests sit. where presumption overcome,
i. pattern of nonenf. that effectively changes the rule w/o N/C, so eventually could bring suit
(that no N/C)
ii. agency flatly claims has no stat. jur. to reach certain conduct
iii. engages in pattern of nonenforcement of clear stat. lang.
iv. nonenforcement dec. that violates const. rights
4. Farmworkers
a. decision to not make rule is reviewable
b. agency had clear stat. req. to make rule
-dont have discretion to contravene statutory commands
5. Heckler and Farmworkers
a. look at stat. req. for action agency have clear stat. req. to act?
b. ct. simply feel more confident in det. when agency should make rule than when should enforce
c. dec. not to enforce turns on mishmash of f(x) while decision not to issue turns on legal quest.
d. ct. have something to review when agency denies to issue agency has released statement of
why denied
e. *when agency issues notice of RM, and then no rule, ct. has means of ruling (can compel b/c
agency can always rule no change)
-ct. can prevent agency from dragging feet cant issue notice of intent to act and then
not act
IV. Judicial Review of the Substance of Admin. Action
A. Intro.
1. fundamental tension of jud. review is how to reconcile effy of delegation w/ desire to have final
std. that natl and consistent w/ the original mission
2. governed by 706
a. to extent nec., ct. shall decide all relevant quest. of law, interpret const. and stat. provisions,
and det. the meaning and applicability of the terms of an agency action
b. ct. shall also:
i. compel action unlawfully w/held or unR delayed AND
ii. hold unlawful and set aside action/findings/decisions found to be:
(a) A/C, abuse of discretion, or otherwise not in acc. w/ law (inf. RM)
(b) contrary to const.
(c) in excess of stat. authority
(d) w/o observance of required procedure
(e) unsupported by subs. evid. (F. adj. or F.RM) (reviewed on record)
(f) unwarranted by facts when facts reviewed de novo
(1) only applies when actions adj. and factfinding procedures are inadeq. OR
(2) issues that were not before the agency are raised in a proceeding to enforce nonadj.
c. ct. reviews whole record (or parts cited by party)
B. Review of Factual Determinations
--finding of fact is assertion that something happened or will happen ind. of assertion as to its legal effect
1. review resembles app. ct. review of trial court
a. *dont examine facts further than to det. whether there was substantial evid. to sustain order
b. Subs. evid. test like jury testif R mind might accept as adeq. to support conclusion
2. Universal Camera


a. need to look at whole record when det. if agencys decision is based on subs. evid.
b. What happens when ALJ and agency reach 2 dif. conclusions?
i. must look at ALJs decision when reviewing agencys decision
ii. *how imp. ALJs decision is to review depends on type case
(a) if case turns on cred., ALJs decision should be given weight (b/c witnesses all evid.)
*agency cant automatically discount ALJ when case turns on cred.
(b) if agencys dec. based on expertise, can still discount ALJ or, in some cases, ignore ALJ
3. Allentown Mack
a. agency must adhere to plain lang. of standard
-doesnt matter if consistently act differently still must abide by std.
b. Can make policy through adj. (Chenery) BUT cant pretend to be factfinding when really
changing std.
*when change std., must announce new policy
--cant bury an imp. decision
--cant say policy just turns on facts of case when policy no longer resembles the orig. std.
c. an agencys decreed result must be w/in the scope of its lawful authority and the process by
which it reaches that result must be logical and rational
4. Subs. Evid. test really only affects F. Adj. (really is no F. RM)
5. Assoc. of Data Processers (Citicorp)
a. subs. evid. test is same as A/C std. (for fact finding)
is there a R basis for the decision?
b. record in F. adj. is record of hearing (only look at info. offered at hearing)
c. record in RM is all evid. before agency at time decision made
--includes all comments submitted and any agency reaction to comments
--in Inf. RM, can also rely on expertise
d. although std.s same, application differs
i. *subs. evid. test doesnt apply to inf. RM (A/C test does)
ii. for RM, the record can incl. intangibles e.g. expertise
iii. theres an inherent deference in the subs. evid. test thats already included in RM
C. Beyond the Facts: The Old Approach
1. Hearst Publishing (Newsboys)
i. question about specific app. of legal std. to facts is ans. by agency
--court defers so long as agencys decision is warranted by record and is R
ii. ct. defers to questions of fact
iii. ct. gives no deference when making det. of law
2. Skidmore v. Swift (firemen on call are on duty and should get overtime)
a. courts decide whether a particular case falls w/in the Act
b. Sec.s conclusions are not interp. of the Act or binding std. to judge factual sit. w/
but are persuasive and can be used as a guide
--how much deference court gives, depends on the factors
--court says defer if persuasive which means no deference (just following persuasive interp.)
-look at thoroughness evident in reasoning, validity of reasoning, consistency, etc.
3. prob. w/ old approach is its hard to distinguish between mixed law/fact (defer) and law
D. Beyond the Facts: The New Approach
1. Overton Park (highway through the park)
*need meaningful review based on record
a. Sec. approved $ for Rte. construction w/o making finding stating why not choosing other alt.
b. SC says: formal findings not required BUT jud. review based solely on lit. affidavits inadeq.
c. Review power to review?
i. 701 of APA req. review unless stat. prohib. or where action committed to agency discretion


(a) need clear and convincing evid. of leg. intent to restrict access to jud. review
(b) discretion exc. very narrowonly app. when stat. drawn so broadly that no law to apply
ii. here, Cong. didnt intend that $ and disruption of com. were to be ignored so law to apply
-not allowed to go through parks that is a lim. to discretion so can review
d. Review-- standard
i. 706 of APA reviewing ct. sets aside action/finding/concl. under 6 std.
(a) A/C (for inf. RM)
(b) fails to meet stat., procedural, or const. req.
(c) not supported by subs. evid.
(1) applies to F RM or
(2) public adj. hearing under 556, 557
(d) unwarranted by facts
(1) only applies when actions adj. and factfinding procedures are inadeq. OR
(2) issues that were not before the agency are raised in a proceeding to enforce nonadj.
ii. court says doesnt fail under (c) or (d) BUT still must meet gen. app. std. of 706
--court must still engage in subs. inquiry
(a) 1st decide whether Sec. acted w/in scope of authority
(b) 2nd decide if decision A/C etc.
*decision made on relevant factors and no clear error of judgment?
--narrow std. of reviewct. not empowered to sub. its judgment for the agencys
(c) Sec.s action followed the nec. procedural req.?
e. formal findings only req. in absence of stat. directives when the nature of the agency action is
ambiguous (rare)
f. case remandsdistrict ct must review based on full admin. record before Sec. at time of dec.
i. if record doesnt disclose factors considered, it may be nec. to req. some explanation in order
to det. if Sec. acted w/in scope of authority and justifiable under app. std.
ii. Sec. has opp. to provide formal findings providing adeq. explanation for action
* reviewing court looks at whole record before agency even in informal RM
2. Camp v. Pitts
a. *de novo review only approp. when inadeq. factfinding procedures in an adj. proceeding or
where jud. proceedings are brought to enf. certain admin. actions
--inadeq. just. for decision does not spark de novo review
b. use A/C std. to review just. for decisions and look at record already in existence
--look at agencys findings
3. State Farm (seatbelt rule)
a. MVSA rescinded the rule req. use of passive restraint seatbelts or airbags b/c thought passive
seatbelts werent producing sig. safety benefits
b. Issue: How review an agency decision to rescind?
i. no distinction between rescinding and promulgating
ii. *any departure from status quo is reviewable
c. use A/C std. in reviewing (b/c inf. RM)
i. when reviewing under A/C, possible violations include:
(a) agency relied upon f(x) which Cong. hasnt intended it to consider
(b) agency entirely failed to consider an imp. aspect of the problem
(c) agency offered an explanation for its decision that runs counter to the evid. before it
(d) decisions so implausible that it couldnt be ascribed to a dif. in view or the prod. of
agency expertise
ii. here, agency failed to seriously consider alt. to rescission
(a) *at minimum, agency cant not explain why choosing repeal over use of airbags
(b) Court is not saying airbag rule nec. to pass review, its saying that, at minimum, the


agency Must explain why such an obvious alternative is not viable

(c) there are no findings and no analysis here to justify the choice made, no indication of
the basis on which the agency exercised its expert discretion. An agency must cogently
explain why it has exercised its discretion in a given manner
iii. Other defects
(a) agency failed to consider the possibility of non-detachable seatbelts
(b) agency was too quick to dismiss the safety benefits of auto. seatbelts
- agency cant just say subs. uncertainty as just. for its actions
d. **Agency didnt do enough to justify decision to rescind rule so A/C
-this is an example of a hard-look review
e. *must explain change in terms of past rule and the studies that led to the past rule AND
explain why rescission/change is the correct act
*Ct. is not to substitute its judgment for an agencys BUT agency must examine the relevant data
and articulate a satisfactory explanation for its action, incl. a rational connection betw. the
facts found and the choices made.(quoting Burlington Truck)
*an agencys view of what is in the public interest may change, either w/ or w/o a change in circ.,
BUT an agency changing course must supply a reasoned analysis
f. Rehnquist dissents: thinks agency should be allowed to change policy when Pres. Admin.
4. Chevron (bubble concept)
a. Old view: court decided on own what stat. meant ct. upheld agency only if decision
warranted by law -deference unlikely
b. New test
i. Statute ambiguous? (w/ respect to the spec. question agency is trying to resolve)
-if stat. silent or ambiguous (doesnt speak directly) to specific issue in quest.
ii. if so, is agencys interp. R?
c. *ct. cant sub. its own interp. for R interp. of agency
--ct. cant interpret stat. for self now
--ct. only interp. stat. to det. if ambiguity no longer follow Hearst
d. Stevens says there are 3 possible reasons for a stat. to be ambiguous:
i. Cong. purposely left to agency (gap acts as express del. to agency to fill gap)
ii. didnt think about it (implicit delegation)
iii. couldnt come to agr. so left to agency and ct. (passed the buck)
*Stevens says doesnt matter why Cong. left gap, still defer
--thinks its ok (and nec.) for agencies to have flexibility
--a lot of decisions are polt; admin. choices arent etched in stone
*Cong. del. is ok so long as decision made by polt actor or person resp. to polt actor
e. Why defer
i. expertise of agency (at interp. terms)
ii. polt acc. (can vote for / against Pres. for decisions)
iii. cong. intent (if not clear, wanted to defer to agency)
iv. sep. of powers (decision is RM ct. has no power danger is approaching a nondel. viol.)
v. flexibility (allows agency to define in accordance to current status; reg. not carved in stone)
vi. procedural adv. (public gets N/C, agency informed by real sit.)
vii. uniformity
--i-iv are mentioned in the case as reasons for step 2 of Chevron and cong. intent is just .for
step 1
5. Chevron and APA
a. ct. normally make default rules on stat. interp.
i. *Chevron is a new default rule that Cong. can overcome if wants
ii. Ct. still adhering to APA


6. Rust v. Sullivan (challenge to gag rule)

a. 1008: none of funds . . .shall be used in programs where abn is a method of fam. planning
b. violate nondel. doctrine?
i. Cong. made tough decision of banning funding and has written a fairly specific provision
ii. this isnt even argued
c. plausible interp. of prov.? (to have gag rule)
i. history of reg. allowed discussion/counseling on abortion until 1988
ii. court says ambiguous prov. so defer to R interp. (under Chevron step 2)
(a) its ok interp. can change over time
-entitled to def. even if rep. sharp break w/ prior interp.
(b) leg. history which doesnt dem. clear and certain cong. intent cannot form basis for
enjoining reg.
iii. Stevens says not ambiguous, and anyway, interp. unR
(a) if look at cong. intent like supposed to would see counseling ok
(b) interp. same way for 18 years until Bush and now ambiguous?
(c) new reg. rep. an assumption of policymaking resp. that Cong. didnt del.
iv. OC says step. 2 of Chevron is approp. level BUT no def. and interp. raises const. issues
(a) if Cong. wants to close in on const. border then can and SC will review BUT agency
cant come this close
(b) an agency interp. that may be unconst. should be found unR
-agencys shouldnt be able to present const. quest. to court
(Cong. cant del. power to make arguable unConst. reg.)
d. result is administration gets more flexibility under step 2 of Chevron
-*whenever ct. decides case under Chevron pt 2, Admin. retains power to reinterp. at later date
e. Clinton then issued interim rule repealing gag rule w/o N/C and invoked good cx exc.
i. good cause = medical exigency
-imprac., unnec. and contrary to public interest
ii. example of interim rule shows how statement is neither concise nor general
-really thorough b/c want to survive jud. review
7. Interplay of Chevron and S.F.
a. usually both subj. come up in case
-S.F. arguably applies whenever decision turns on specific evid.
-Chevron deals w/ interp. of stat.
b. SF looks at agencys course of reasoning and method by which justifies decision
i. has agency explained decision in light of all evid.?
ii. focuses on sufficiency for justification
iii. failure to explain why alt. are leg. can arbitrary finding
iv. mainly a procedural review
v. gen. ct. defers to agencys decisions on quest. of law and really invest. when quest. of fact
c. Chevron looks at whether interp. R, focuses on merits
i. dont defer when const. quest.
ii. agency cant interp. stat. to apply retroactively or extraterr. or to pre-empt state law
8. Christensen (overtime and comp. time)
a. agency issued opinion letter
-SC said opin. letter not entitled to def. under Chevron
-doesnt have force of law and ONLY defer if ambiguous AND decision has force of law
b. *when ambiguous w/o force of law, use Skidmore to det. if defer
-if persuasive, defer
c. Breyer thinks decision needs to be R and persuasive
-thinks Skidmore defined like Chevron


9. Mead (tariff class. ruling)

a. Chevron def. owed when Cong. del. auth. to agency gen. to make rules carrying force of law,
AND agency interp. claiming def. promulgated in exercise of that authority
i. can show del. auth. in variety of ways, as by agencys power to engage in adj. or N/C RM
or by some other indication of comp. cong. intent
ii. not always express del. but may still be apparent from gen. conferred auth. and other stat.
-if Cong. provided for rel. formal admin. procedure tending to foster fairness and delib.
that should underlie a pronouncement of force, then defer
iii. class. rulings, interp. in policy statements, agency manuals, and enf. guidelines are not
entitled to def.
b. ****to have Chevron def. under step one need:
*decision must have force of law
*Cong. gave agency power to make decisions w/ force of law
c. agency rule under RM or adj. can get Chevron def. but Ct. doesnt specify what falls in cat.
-would include formal adj. and RM
d. substantially changes Chevron framework (narrows)
-just. is that dont want to defer to all decisions and Cong. intent
*Cong. intent is all that matters when det. whether to def.
-agencies are given a variety of powers so ct. gives variety of deference
e. even if decision doesnt carry force of law, might still be entitled to Skidmore def.
f. *must exercise power to get deference
-having power (to issue dec. w/ force of law) isnt enough
g. dont want to give Chevron def. to interp. rule b/c then interp. rules would have force of law
and agency would never have to issue rule w/ N/C
h. Scalia dissents says del. of formal power doesnt mean agencys dec. has force of law
i. says Mead undermines Chenery
-lessens agencies abilities to choose betw. RM and adj.
-agency wont use inf. adj. b/c may not get def.
-can do inf. RM BUT more expensive so may stop doing rules all together
-will lose flexibility
ii. when no def., ct. det. interp., then agency cant change until Cong. change BUT when
theres def., agency can change interp. so long as change consistent and ok w/ S.F.
-when no def., freeze in place the ct.s view
10. REVIEW -- ct. shall set aside agency action if:
a. Procedural:
i. stat. (APA and organic)
ii. Const. (typically only matters w/ inf. RM)
iii. Vt. Yankee (doesnt meet min. req.)
b. Dec. of Fact
i. subs. evid. test (formal R jury std.) (Universal Camera)
ii. A/C test (inf. RM) (R jury std.) (Citibank case)
c. Nonfactual det.:
i. matters of interp.
1. Has Cong. spoken directly on issue? or is stat. ambiguous? Chevron step 1
(if clearly inconsistent w/ cong. intent, set aside)
2. if ambig., interp. R and carry force of law AND Cong. intended it to have
force of law?
--not entirely clear what carries force of law means
-incl. all rules after N/C and formal adj.


-unclear whether inf. adj. gets def.

3. if not covered by Chevron, entitled to Skidmore def.?
-reg. scheme must be highly detailed and agency has ben. of spec. experience
ii. substantive hardlook review (SF) (sat. just. for action? shown in light of rel. facts?)
V. Access to Judicial Review
A. Bases for obtaining jud. review
1. specific stat. conferring reviewability trumps the APA (unless inadequate)
a. organic stat. often designate level of ct. system at which review init.
b. usually grant gen. subj. matter jur., provide cx action, and waive sovereign immunity
c. might specify venue, set stat. of lim., det. whether certain remedies must be exhausted, confer
standing, and/or provide supp. or alt. std. of review
d. review usually begins in app. ct.
2. APA reviewability
a. 701 agency dec. presumptively reviewable unless:
i. stat. precludes (e.g. Dalton)
ii. action committed to agency discretion by law (e.g. Heckler v. Chaney)
b. 702 tells when standing to challenge
--suffering legal wrong, adversely affected or aggrieved person entitled to review
-need to be w/in zone of interests
--sovereign immunity (none if not seeking $$ -- can sue if no $$ claim)
c. 703 --venue, jur. and forms of cx action
--look to organic stat.
--if organic stat. doesnt say, can go to any court of competent jur.
d. 704 --reviewability and timing cant challenge until final
e. review usually begins in district court except if organic stat. commits review of final
agency action to app., then app. ct. has exclusive jur. over ALL suits seeking relief that might
affect its future stat. review power
B. Standing
1. agency will likely tailor decisions in favor of people who have standing
2. Allen v. Wright (IRS and seg. private schools)
a. here, want IRS to enf. prov.
i. Chaney (decided 1 yr. later) says dec. not to enforce is unreviewable Unless, as here, nonenf.
is unconst. (exception from conc.)
-basic Chaney rationale seems flimsy (not to review) b/c harming class of people and in
some ways, here nonaction is really action b/c granting exempt status
ii. also, pattern of non-enf. change in rule and can only repeal w/ N/C (Allentown Mack)
b. *Ct. dismd case at complaint stage b/c no standing
i. must allege injury in fact
ii. injury must be fairly traceable to harm
iii. injury must be redressable by relief sought
c. injury from challenged government conduct 2 ways to phrase claimed injury:
-neither confers standing
i. govt. breaking law
-no standing b/c of this then everyone could allege
ii. govt. stigmatizing pl.
(a) too broad and gen. (this kind of grievance is best solved by polt branches)
(b) dont want flood of suits
(c) pl. must have stake in case (then will do better job of arguing side)
(d) Art. II sep. of powers prob.ct. cant micromanage the exec. branch
-would undermine the Pres. power to execute laws


(e) Art. III prob. need case or controversy

d. injury to childrens opp. to receive a deseg. educ.
i. ct. says impairment of ability to have deseg. schools is a real injury
ii. BUT not fairly traceable to IRS conduct too attenuated
-results from ind. action of 3rd party not before ct.
3. *way define injury tends to det. if govt. cx and whether can redress
-objects of reg. have easier time of getting standing
4. Data Processing
a. *legal right test has no impact on standing (merits of case have nothing to do w/ standing)
-just need to be w/in zone of interests protected by stat. broad understanding of that
b. standing just asks WHO can challenge
--need injury in fact here, injury is loss of bus. (econ. injury so easy to see)
5. 702 injury that gives access to jud. review doesnt need to be same as legal claim thatll just. relief
-must show w/in zone of interests
6. Sierra Club v. Morton
a. cant have ideological pl. injury in fact test req. that party seeking review be among injured
b. although can seek jud. review and relief under 2 dif. claims, a mere interest in a prob. is not
suff. by itself
7. Lujan v. Def. of Wildlife
a. past visit not enough nor is intent to return
-*need a concrete plan to return for injury in fact
b. Cit.-suit prov. not perm. cant confer standing to everyone
i. still need to meet meet const. req. (from Art. III)
ii. const. is floor cant allow less
iii. 2 reasons
-gen. grievances should be resolved politically
-allowing this would undermine Pres. ability to faithfully execute the laws
-hard to believe this ratl b/c willing to decide when there are proper pl.
c. Scalia admits targets of reg. have easier time est. standing
-how det. whos the obj. or beneficiary of reg.?
-ct. tries to adhere to CL baselineany govt. action is a change in the status quo and
anyone affected by change is object
d. can enforce procedural rights so long as procedures in quest. are designed to protect some
threatened concrete interest of his that is the ult. basis of his standing
8. Akins
a. group has standing injured by non-disclosure (injury is inability to get info.)
b. under Lujan, Cong. cant extend injury beyond cts def. of injury
-Lujan involved insuff. procedural injury -- procedural injury alone isnt enough
-need personal harm as well as procedural harm
(failure to do procedure isnt a harm results need to harm)
c. *can have standing from gen. grievance IF harm concrete
-only no standing if widely shared AND abstract
d. fact that agency has discretion to take action doesnt mean not fairly traceable
-still have standing
9. Natl Credit Union Admin. v. 1st Natl Bank
a. in det. whether in zone of interest, doesnt matter if theres cong. intent to benefit party
-interest just needs to be arguably w/in zone of interest to be protected
b. Test
i. 1st discern interests arguably to be protected by stat. prov. at issue
ii. then inquire whether pls interests affected by the agency action in quest. are among them
10. 2 hurdles to standing


a. Art. III
b. Prudential (zone of interest) (Data)
i. when det. zone, need to det. purp. of stat. can usually discern leg.s interest
--once, ID, lim. review to parties Cong. had in mind (figure out who Cong. wanted to
-if Cong. expands zone of interest, then dont go through that part of test
(e.g. by conferring to aggrieved parties or through cit.-suit prov.)
ii. its always a risk that party will manip. to try to serve personal interest
iii. Cong. should have fairly broad leeway to define who can sue (cant be too restrictive)
--when ct. deciding whether fulfill zone of interest, usually looks at merits and opin. on merits
shapes decision on zone
C. Reviewability and Timing
1. reviewability quest. are only under APA if Cong. hasnt otherwise ans. the quest.
a. when APA does apply 701
i. no review when decision committed to agency discretion by law (e.g. Chaney)
ii. no review when stat. precludes review
b. 704 says when can review, can only review final decisions
2. Can review? (Abbott)
a. threshold quest. is always whether ct. can review
b. *presumption in favor of avail. of review
-must have persuasive reason to believe Cong. intended to preclude review
-need clear and convincing evid.
-*look at cong. intent to decide whether presumption overcome
*ct. usually finds review avail. unless cong. SO clear, theres no other viable option
c. mere fact that some acts are made reviewable shouldnt suffice to support implication of
exclusion as to others
d. ct. usually finds cant preclude review of const. issues
-usually finds that stat. doesnt address const. challenges
-dont want to deny review b/c del. prob., agencies arent const. experts, and SofP prob.
3. If can review, when allowed to bring?
a. only when action final
--Abbottprom. in formal manner after N/C
--reg. arent advisory give auth. interp. of stat. prov. that has direct effect on regulatees
b. Pre-enf. review
i. *Ripeness -- real issue on pre-enf. review is whether case ripe
(a) quest. of timing rule fit for jud. resolution AND would failure to review hardship
(b) ripeness is a prudential req.
(c) Toilet Goods (access) not ripe b/c:
-reg. only says that Com. may act not suff. to tell ct. when or how will act
-need to wait until spec. app. to get review
-look at effect here, primary conduct not affected and no irremedial adverse cons.
(d) need to look at lang. and effect of reg. to det. if ripe
ii. if beneficiary doesnt get to lit. before enf. then cant ever
c. where legal issue presented is fit for jud. res. and where reg. req. immed. and sig. change in
pls conduct of their affairs w/ serious pen. attached to noncompliance, access to ct.
must be permitted absent sat. bar or some other unusual circ.
4. Timing Ticor
a. must be ripe, final, and must fulfill any exhaustion req.
b. Exhaustion
i. if agency proceedings at early stage and party seeking review has right to admin. hearing or


review, ct. wont hear b/c hasnt exhausted admin. remedies

ii. jud. intervention may not be nec. b/c agency can correct any initial errors at subsequent
stage of process
iii. agencys posn on imp. issues may not be fully crystallized
iv. focuses on posn of party seeking reviewparty been attempting to short circuit admin.
process or has been R diligent in protecting own interests?
v. doesnt gen. apply if raising const. issues or using agencys proc. would be futile
vi. 2 exceptions to exhaustion req.:
(a) agencys assertion of jur. would violate a clear right of petitioner by disregarding a
specific and unambiguous stat., reg., or const. directive
(b) postponement of review would cause pl. irreparable injury
-mere lit. expenses, even substantial and unrecoupable cost, does not constitute
irreparable injury
c. Ripeness (theory that ct. shouldnt interfere unnec. w/ ongoing proceedings)
i. looks at fitness of issues for jud. det. and hardship to parties that would result from granting
or denying review (dont interrupt unless serious and irremediable harm)
ii. concerned prim. w/ institutional rel. betw. ct. and agencies, and comp. of ct. to resolve
disputes w/o further admin. refinement of issues
iii. from Hastings: have policy ag. rendering judgment on const. of proceedings while proc.
going on. disruption of ongoing proceedings only just. IF pl. could dem. would suffer
serious and irremediable injury in the absence of immediate review
iv. when deciding fitness of issues, look at
(a) if action or proceedings raise purely legal quest. (which are presumptively suitable for
jud. review) or quest. req. further factual dev.,
(b) whether either the court or the agency would benefit from postponement of review
until agency action/pol. in quest. has assumed either a final or more concrete form
d. Finality
i. looks to concl. of activity by agency (unlike exh. which looks at what steps lit. must take)
ii. jurisdictional req. (unlike ripeness and exh. which are prudential)
iii. orders are final when impose obligation, deny a right, or fix some legal rel. as a
consummation of admin. process
(a) expense of lit. doesnt qualify as imposition of burden or denial or right
(b) not final merely b/c constitutes agencys last word on discrete legal issue in course of
--fact that com. is unlikely to change posn on const. of proceeding doesnt convert
assertion of jur. into final agency action
(c) agencys dec. to initiate proceedings doesnt become final merely b/c challenger
attacks agencys jur., even where attack raises pure quest. of law
iv. review of nonfinal action is avail. only in most exceptional circ.
-only in case of clear right such as violation of clear stat. prov. or
violation of basic rights est. by structural flaw,
and not req., in any way, consid. of interrelated aspects of the merits
v. if Sec. has to turn dec. in to Pres. then agency action not final
VI. Const. Req. of D.P.
A. Basic quest.
1. Entitled to hearing? (liberty or prop. interests affected?)
2. if so, before or after deprivation?
3. not concerned about D.P .in formal adj. b/c APA already req. more
-really concerned in inf. adj.
B. Old Learning


1. Post-dep. hearing may be fine, esp. if safety emer. (DP bends to safety emer.)
-can always win damages if shut-down improper
2. if govt. has good enough reason, can take something w/o hearing
-CL provides all process need
--predep. suit is to prevent action while post-dep. suit is for redress
3. Summary of Old Analysis
--only get hearing if govt. action affects right
-dist. betw. right and priv. (Bailey)
C. Transition
1. Frankfurters dissent in Joint Anti-Fascist
a. due process is not a tech. conception w/ fixed context unrel. to time, place, and circ.
-made of history, reason, past course of dec., and stout confidence in dem.
b. *entitled to hearing when suffer grievous loss of any kind
2. Cafeteria Workers (fired b/c didnt get sec. clearance)
a. fact that dont have right not dispos. need more than that distinction to not get hearing
b. here, not entitled to hearing
-only a priv. AND outweighed by govt. interest (natl sec. very strong interest)
-fact that not a right only weakens interest
c. *balance private and govt. interests to det. if entitled
-consider ALL factors
(first thing need to do is det. nature of govt. function and private interest affected by govt. act)
3. Goldberg (term. of welfare)
a. NY gave lots of pre-dep. rights and after term, got admin. fair hearing
-parties agree DP implicated issue is whats req.
b. *hearing must be before term. though
i. ct. says since cant survive w/o welfare, have brutal need for prior hearing
(unconscionable to not have)
ii. hearing doesnt need to be jud. or even quasi-jud.
(a) one produce init. det. of validity of term.
(b) dont need complete record or comp. opinion
(c) just need min. procedural safeguards adapted to part. char. of recipients and lim.
nature of controversies to be resolved
which means need:
(1) timely and adeq. notice detailing reasons for proposed term.
(2) need opportunity to make oral presentation (written opp. not enough)
(3) need cross
(4) decision maker must decide on record of this hearing
c. Balance
i. Costs to Govt.
(a) must pay during interim (and prob. cant recover $)
(b) cost of hearing
(c) snowball effect (now must do hearing for all term.everyone will request)
ii. Personal Interest
(a) loss of benefits if govt. mistaken
(b) dignitary interests allowing appearance rec. individuals worth
(c) oral presentation offers flex., puts face on case, may not be able to write adeq. opp.
--ct. says pers. interest outweigh
-downplays costs and says state can min. costs
-stakes just too high for welfare recipient
d. opinion suggests 3 possible ways of triggering DP
i. grievous loss


-if this is proper test, then really expands when need hearing
ii. private interest outweighs govt. interest Balancing
iii. stat. entitlement people rely on stat. and that creates prop. right
e. could read as saying welfare is prop. right and loss triggered DP
OR that there is no trigger it just dep. on nature of loss
-balance interests to det. if hearing nec.
-in this case, ct. thinks govt. interest shares many of priv. interests so priv. wins
D. New Learning
1. Roth (1st year prof. not rehired)
a. *before do balancing test, must det. whether DP triggered
i. Has there been a deprive. of liberty or prop.?
ii. if so, what process due? do balancing to det.
b. this case resolved at step 1
i. in det. liberty interest, look at precedent and own views
-here, no stigma or other disability that forecloses freedom to find another job
-rep., honor, etc. not at stake
ii. in det. prop. interest, look at state law
(a) prop. protection is safeguard of security of interests that a person has already acq. in
specific benefits
(b) created and their dimensions are def. by existing rules or understandings that stem
from an independent source such as state law rules or understandings that secure
certain benefits and that support claims of entitlements to those benefits
(need legit. entitlement to benefit AND right must be created by law)
iii. Ct. says has neither prop. nor liberty interest (no claim to entitlement to renewal)
2. Sindermann (Texas teacher)
a. prop. right can arise from K
b. persons interest in benefit is a prop. interest for DP if there are such rules or mutually explicit
understandings that support his claim of entitlement to benefit and that he may invoked at
a hearing
-de facto tenure guidelines can give rise to prop. right had legit. reliance on them
-written K w/ explicit tenure prov. clearly is evid. of formal understanding that supports claim
of entitlement
c. prop. right may also be implied
-explicit contractual prov. may be supplemented by other agr. implied from promisors words
and conduct in light of surrounding circ.
3. DP treats liberty and prop. as parallel concepts BUT SC treats dif. WHY?
a. Ct. had failed experiment w/ const. reg. of econ.
-Ct. has no bus. const. any econ. activity
-BUT do have role protecting other forms of ind. liberty
b. Why take the trigger approach rather than the Caf. Workers approach?
-why not just look at dep. and balance?
*would make DP way too broad almost anything govt. does will sig. affect some group so
almost every time acted, some group would be entitled to hearing
*cant burden govt. to justify all of its decisions
4. Other results of R and S.
a. prop. right depends on where live
b. either get nothing or double protection (e.g. S. could sue under DP or for breach of impl. K)
c. *cant have legit. entitlement whenever govt. has broad discretion
-so no right to hearing whenever agency has broad hearing
(govt. can avoid hearing req. by conveying more discretion)
d. above seems contrary to admin. law which is always trying to check discretion


5. Matthews ---det. what entitled to once ct. has det. have prop. right
a. case posture and pre-term. proceedings just like Goldberg (some rights pre-term and full post)
b. Eldridge didnt appeal term, though, went straight to fed. ct.
-why no exhaustion prob.? legal claim is that entitled to pre-term. hearing
-challenging const. of agencys reg. so no exhaustion req.
-shouldnt have to use agency proc. to challenge its const.
c. *Ct. creates balancing test
i. private interest
ii. risk of erroneous dep. if use current procedures and likelihood of gain from new procedures
iii. govt. interest
d. Test in practice
i. priv. interest
(a) disability benefits not need-based get no matter how much $ have saved
(b) can get welfare if leaves person indigent have safety net
(c) get retroactive payments if term. erroneously
-ct. req. that its not a negligible interest
ii. risk of erroneous dep.
(a) dec. based on only facts (unlike G, where concerned about suff. of wr. submissions)
(b) *look at this prong in generality of cases
(c) look at current procedure as baseline
iii. govt. interest -- identifies 3 sources of costs
(a) having hearings costs $$
(b) in meantime, paying benefits to people who dont deserve
(c) snowball effect if have opp. to have hearing (and delays term. of $), most people
will request
e. *M. shows that just b/c have DP interest, wont nec. get pre-dep. hearing
f. ult. bal. involves det. as to when jud.-type proceedings must be imposed upon admin. action to
assure fairness . . .all that is nec. is that the procedures be tailored, in light of the dec. to
be made, to the cap. and circ. of those who are to be heard, to insure that they are given a
meaningful opp. to present case
6. Modern Test to det. if hearing req.
a. Person have legit. claim of entitlement?
-have property or liberty right?
-look at stat. and agencys practice
b. What process entitled to? DO Matthews Balancing
i. private interest
-look at degree and length of possible wrongful deprivation
ii. risk of erroneous dep. under current procedures and likelihood of gain from new procedures
-look at this prong in generality of cases
-use current procedure as baseline
iii. govt. interest
7. Loudermill (fire for lying on job app.)
a. had nothing pre-term. and some later
b. *essential req. of DP are notice and opp. to respond
i. need oral OR written notice, explanation of evid., and opp. to present side of story
-not sure whether means can orally present side (if so, get more than Eldridge)
ii. G. only case where needed full adversarial evid. hearing pre-dep. and case very dif.
c. why Bal. test come out dif. here than Matthews?
i. downplay govt. interest
-pre-term. hearing wouldnt impose sig. admin. burden or intolerable delay
-govt. shares interest in avoiding disruption and erron. dec. could keep same empe


ii. elevate priv. interest say Really imp. priv. interest

-unlike M., dont apply welfare arg. (that could always get welfare if cant find work)
iii. ct. looks at individual (and not general)
d. *when theres a prop. right AND discretion to deprive hearing imp.
e. while leg. may elect not to confer prop. interest, it may not const. auth. the dep. of such
interest, once conferred, w/o approp. proc. safeguards
f. Rehnquist Dissent
i. doesnt like balancing says its an ad hoc judgment of which values more imp.
ii. results are unreliable no real guide
iii. wants to look at what value Cong. places on procedure (bitter w/ sweet)
(a) prop. rights created by pos. law and just as leg. can create, leg. can limit when and
what procedures right entitles to
(b) Prob.:
(1) leg. could eradicate DP
(2) people w/ old prop. would get full entitlements while new prop. (stat. entitlements)
dont get full protection
-if prop. is prop., then shouldnt have protection disparity
(c) Ct. in Loudermill rejects this approach
8. Tension betw. Roth and Loudermill
-Leg. can wipe out proc. by wiping out entitlement BUT cant wipe out in stat. est. entitlements