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Administrative Process

Flow Chart

I. Plantiffs ability to seek Judicial review of agency Action

a. Does Plaintiff have zone of interests standing? (ZIN derives from
APA 702, and Article III of Constitution)
i. Injury In Fact
ii. Arguably within the zone of interests to be protected by the
statute or constitutional guarantee in question
1. Legislative History
2. Legislative Intent
3. Would Congress have wanted people to bring claims here.
a. ADPSO v. Camp (1970) SCOTUS-OCC deregulates
banks so that they can now process own and each
others data. ADPSO said such deregulation
created new competition.
b. Clark v. Securities Industry Assn SCOTUS-
Regulations limited geographic size of national
banks, national banks try to expand by new
business (brokerages) not branches, created new
competition. Now requires a reasonable connection
between claim and harm.
c. Air Courier Conference of America v. American
Postal Workers Union SCOTUS- No ZIN, Union
couldnt bring claim under PES because at time of
enactment, Congress never intended PES to
provide job security.
d. National Credit Union Administration v. 1st National
Bank & Trust Co. (1998) SCOTUS- Deregulation of
credit Unions allows them to grow, Banks sue
claiming undisputed fact that there is loss of profits.
4. When Congress regulates a player, if agency deregulates
player, its competitors will have standing.
5. Competitor argues that government allows a rival, then
competitor will be given ZIN standing.
b. Is Judicial Review precluded under APA 701 (a)(1) or 701(a)(2)
i. 701(a)(1)
1. Express statutory preclusion
2. Implied statutory preclusion (Very Rare)
a. Johnson v. Robinson (1974) SCOTUS- VA statute
was written to preclude review, Brennan wasnt
questioning statute, but congress. Courts are
reluctant to allow statutes that block Court review
of Constitutional Claims.
b. Sackett v. EPA (2012) SCOTUS-Clean water,
compliance act was self-executing SCOTUS ruled
that this amounted to final agency action,
regardless if the EPA chose to enforce due to the
daily penalties.
i. Also invaded into common law takings
ii. 701(a)(2)
1. Committed to Agency Discretion by LAW
a. Law is broader category than Statute
i. DISCRETION v. discretion, order of
b. No Law to Apply Test
i. Statutes are drawn in such broad terms that
in a given case there is no law to apply.
c. Webster v. Doe (1988) SCOTUS- termination of
openly gay CIA person. Relevant Statute as well as
NSA as a whole, due to national security requires
d. Heckler v. Chaney (1985) SCOTUS- Deathrow
inmates Petition for Adjudication that drugs used
for lethal injection are unsafe. Agency decisions to
not take action is generally unreviewable.
i. Reasons for this:
1. Complex balance of factors (court
reluctant to inject itself into resource
2. Inaction doesnt change any existing
rights (no change in status quo).
3. No focus for Review
4. Prosecutional discretion
e. Massachusetts v. EPA SCOTUS- States petition EPA
for rule-making in regards to Clean Air Act and
Carbon Dioxide from motor vehicles. Different from
Heckler because that was a petition for adjudication
while this was a petition for rule making.
i. In contrast to non enforcement decisions
agency refusals to initiate rulemaking are
less frequent, more apt to involve legal as
opposed to factual analysis, and subject to
special formalities, including a public
f. Norton v. SUWA SCOTUS- Difference between not
doing a specific thing (Heckler) and not doing
anything (Nortan). Two Part Test
i. Plaintiffs in Norton could not identify any
discrete Agency Actions that the Agency
failed to take.
ii. Even if there is a discrete action, it was
actions the agency were not lawfully
required to do.
iii. How is such broad terms that theres no law to apply not
violate the non delegation doctrine?
1. Heckler footnote 4, Nor do we have a situation where it
could justifiably be found that the agency has consciously
and expressly adopted a general policy that is so extreme
as to amount to an abdication of its statutory
2. Mass v. EPA- requires reasons for not enforcing, which are
c. Is Plaintiff challenging final agency action?
i. Finality-What agency has done, Statutory Regulation APA 709
1. If Agency action is Final, then action is immediately
reviewable, unless agency law requires exhaustion or if no
rule that states effectiveness of lower officials discretion
is suspended during internal agency review.
2. Three Reasons Individuals may have stronger interest
than Government, and exhaustion is not required.
a. May suffer irreparable harm, unable to secure
immediate judicial consideration of his claim
b. Question if Agency is able to remedy situation
c. If doing so would be futile
ii. Exhaustion-Not what agency has done, but what the challenger
has done.
1. Must be found in:
a. Rule
b. Statute
c. Or Common Law
d. Cannot be judge made
iii. Ripeness-Doesnt look at the Agency or the Challenger looks at
nature of the claim and the facts.
1. Is judicial review feasible?
2. Abbot Ripeness Test:
a. Legal
b. Final Agency Action
c. Fitness
i. Evaluate fitness of the issues for judicial
ii. Evaluate the hardship to the parties of
withholding court consideration.
3. Not ripe if too many what ifs and buts to determine
hardship to challenger.
II. Can P raise a structural Constitutional problem? REMEMBER
a. Is there an Article I problem
i. Non Delegation Doctrine
1. Constitutional principle that congress cannot delegate its
legislative power to anyone else, if attempting to do so, it
would be shut down. Not been used since 1935.
2. Why is Agency allowed?
a. Congress lacks time, resources, and expertise
b. Within law execution, there must be at least some
sort of law making.
c. Every member of congresss sole purpose is to
claim credit and deflect blame.
3. Intelligible Principles Test:
a. Applying this "intelligible principle" test to
congressional delegations, our jurisprudence has
been driven by a practical understanding that in
our increasingly complex society, replete with ever
changing and more technical problems, Congress
simply cannot do its job absent an ability to
delegate power under broad general directives.
Accordingly, this Court has deemed it
"constitutionally sufficient" if Congress clearly
delineates the general policy, the public agency
which is to apply it, and the boundaries of this
delegated authority.-Mistretta
4. American Trucking Assn v. EPA (1999) SCOTUS- Only the
statute and hence Congress, can violate the non
delegation doctrine.
5. Benzene Case (1980) SCOTUS- Narrowest, aka; disturbs
the society the least. Significant threshold test. How
is it different from a cost/benefit analysis?
6. The Delaney Clause-Public Citizen v. Young (1987)
a. "the Secretary of the Food and Drug Administration
shall not approve for use in food any chemical
additive found to induce cancer in man, or, after
tests, found to induce cancer in animals."
b. Agencies have hoped to circumvent the Delaney
clause through De Minimus Exception but courts
deny such tactic due to it not being textually in the
i. If congress made the statute, congress
should amend the statute.
ii. Chada (1983) SCOTUS- Attorny General is able to suspend
deportation in particular cases when certain factors are met.
Within same statute, House OR the Senate has the power to
veto the AGs stay.
1. This is a house legislative veto, which is unconstitutional
because it lacks bicarmeralism (passes both houses) and
presentment (Sent to the President).
2. Congress could have just passed private bills
3. AGGRANDIZEMENT: Congress can delegate law making
powers to other, but what congress cannot do is delegate
power to itself or any part of itself without Presidential
envolvement. (anti aggrandizement doctrine)
a. Congressional powers to control agencies?
i. Appropreations (funding)
ii. Oversight
iii. Fillibuster
iv. Confirming appointees
b. Is there an Article II problem
i. Appointment
1. Buckley v. Valeo-Officers=Any person to take oer
significant powers, not just investigatory, o record keeping
in nature for the aid of Congress. Must be properly
a. President shall with advice and consent of Senate
(Article II 2.2)
b. Appointed by head of Department
2. Landry v. FDIC- Landry argued that ALJs are not properly
appointed and their rulings are not binding. Court said
that ALJs were just employees.
a. Principle Officers- President and Senate
b. Inferior Officers- President and Senate, or President,
or Courts of Law, or Heads of Departments
c. Employees
i. Substantive Powers Test between b and c.
3. Morrison v. Olsen
a. Test for Principal v. Inferior Officer
i. Subject to removal b a higher executive
branch official
ii. Subject to limited duties
iii. Limited jurisdiction
iv. Limited tenure
b. Edmund v. U.S. 9 years later, anyone who is in day
to day operation, operates supervised under person
properly appointed by president and approved by
senate. (Most likely a new test)
i. Freytag- was 9-0, would probably be 5-4 now,
Scalia says probably worse SCOTUS decision
in history. .. Article I court was neither a court
or under Article I, Held that Special Trial
Judges are inferior officers. Used in Landry
ii. Removal
1. Constitution is silent other than impeachment: High
crimes and treason.
2. Meyers v. U. S. Postmaster removed, sued for back pay.
Statute said that postmaster must be appointed and
dismissed by the President with advice from the Senate,
court ruled this unconstitutional in that removal is the
power of the President alone according to constitutional
3. U.S. v. Perkins Inferior officers may be removed in any
way Congress deems necessary and proper.
a. Mere employees are only removable by cause
i. Civil Service Protection
4. Humphreys Executor v. U.S.- Commissioner of FTC,
senate confirmation/principle officer. Roosevelt tries to
remove, avoided good cause argument to make legal
point that President had at will power over FTC relying
on Meyers. FDR lost, SCOTUS said that the purpose of
such an agency and its principle officers are to operate
outside the political influence.
a. SCOTUS distinguishes Meyers because that statute
aggrandized congress. Humphrys just limited the
presidential power to good cause removal.
b. Allows for these QusiJudicial/QuasiLegislative
i. Note: damages are back pay, never re
5. Morrison USAG can only remove for good cause.
a. 2 Part Test:
i. Limitations must not impede/interfere with
Prezs ability to perform his constitutional
duties that laws are faithfully executed
ii. Congress may not have any removal
properties other than Impeachment.
6. FEF v. PCAOB (peekaboo)-Removal limitations go to far.
President >(Good Cause) SEC> (Good Cause)>PCAOB
The second good cause becomes at will.
a. Double good cause is no good
c. Is there an Article III problem
i. Congress can set up on Article III Courts in instances of
1. Territorial Courts (Washington DC)
2. Court Martial (Military)
3. Hear controversy over public rights (individual v.
a. Controversy between Person and Government
b. Arise under Federal Statute Law
c. Dispute congress can resolve on its own without
any adjudication at all (sovereighn immunity).
4. Congress can call upon Agencies to act as an Adjunct to
Article III court.
ii. Commodity Futures Trading Commn v. Schor (1986) SCOTUS-
Schor moves to combine cases, claim and counter claim, to
CFTC. Then loses and raises claim that CFTC does not have
constitutional jurisdiction to hear such claims.
1. In essence, Schor had waived this when he combined the
2. Note that the claim and the counter claim were attached
to the same pot of money.
iii. Stern v. Marshall (Anna Nicole Smith)-Bankruptcy court hears
counter claims of defamation and tortious interference Price
does the same thing Schor did after losing.
1. To be public rights claim between individuals, it must be
in close relationship to a federal statute.
2. Couldnt be said that Pierce waived right when consented
because he might have for the claim of defamation, but
not for the counter claim of tortious interference.
III. Can Plaintiff challenge the Agencys action on administration
common law grounds
a. Has the agency acted consistently?
i. Chenery I
1. SEC finds that Chenerys did nothing wrong, based order
on common law rules of equity (this goes against Erie).
Court finds that SEC was in error in using precedents and
not its own rules. Agency actions must be defended only
on grounds relied on at the time.
a. Broad Holding: SEC was required to act by rule.
b. Narrow Holding: Agency action must be defended
only on ground relied on at the time.
ii. Chenery II
1. SEC makes same claim, this time it lists ever reason it can
think of. This works, order is upheld.
a. Chenery Remand: sends it back to the agency to
get another crack at it.
2. Agency must at least give next person harmed by
general policy a hearing of how their actions were
different (when using adjudication).
3. Efficiency Rule made out of adjudication:
a. The choice of which mode in which to proceed on is
on in which lies primarily in the informed discretion
of the administrative agency.
i. To win a case you must show that agency
abused its discretion.
iii. Lemoyne-Owen College v. NLRB-NLRB had not given any reason
why this case runs against other Board decisions.
1. Agency must explain why ruling falls one way or the other
in varying precidents.
iv. FCC v. Fox- Agencys reasons were good enoughThe
independent agencies are sheltered not from politics but from
the President, and it has often been observed that their freedom
from presidential oversight (and protection) has simply been
replaced by increased subservience to congressional direction.
Indeed, the precise policy change at issue here was spurred by
significant political pressure from Congress.-Scalia
1. Must give at least some reason to change a policy.
b. Has the agency justified its action on the same substantive grounds on
which it initially relied?
c. Is there an Accardi Problem?
i. Agency must follow its own rules.
d. Is there an estopple issue?
i. Office of Personnel Management v. Richmond- Bases ruling on
Appropreations Clause Court way over read this clause
Court says it would be the court giving money out of the
1. The court does not find that there is no instance in which
the government can be estopped; however in the matter
of payment of public funds contrary to the provision set
forth by Congress, there can be no estoppel.
IV. Can Plaintiff Challenge the Agencys Action on procedural grounds
a. Did agencys procedures comply with due process
b. Did the agencys procedures comply with the organic statute
c. Did the agencys procedures comply with the APA
i. Have formal procedures ( 554, 556, 557) been triggered
ii. Does an exception to informal rulemaking ( 553 (a),(b)) apply
d. Did the agencys procedures fall short of what the agencys own
regulations require?
e. Can Plaintiff challenge the agencys choice of rulemaking over
adjudication, or vice versa?
V. Can Plaintiff Challenge the agencys action on substantive
a. Can Plaintiff challenge the agencys findings of fact
b. Can Plaintiff challenge the agencys interpretation of law
i. Does Cheveron apply?
1. Step Zero
a. Interpretative rule does not automatically get
Agency Cheveron deference because it doesnt fall
into a safe harbor interpretive form (not binding
rule or adjudication).
i. Safe Harbors= Notice and Comment, or
Formal Procedures
b. Can still gain Cheveron deference if congress
intended rule to have the binding force of law
c. Must satisfy (Mead) to get Cheveron deference.
i. If Congress inteds for agency to act with
force of Law, Agency acts with force of
2. Step 1
a. Has Congress Directly spoken to the precise
question at issue?
i. If yes, then Court and Agency cannot go any
ii. If no, then on to Step 2
1. Ambiguity v. Gap
a. If Ambiguous, the Court is more
likely to solve this in step one
b. If truly a Gap for agency to fill
(step 2), then Agency deference
will prevail.
3. Step 2
a. The Court questions whether the agencys
construction is based on a permissible construction
of the statute (Near complete deference to the
i. How Agency loses here:
1. Chose interpretation very arbitrarally
2. If choices are a or b and agency
chose c.
4. Pre Cheveron: U.S. v. Home Concrete & Supply, LLC
SCOTUS- Finds that Judicial Precedent of PreCheveron
decisions are binding.
ii. Does Skidmore apply?
1. Court gives deference to agency interpretation that
comes through informal means because the Court things
that the interpretation is pretty good evidence of a good
a. Factors:
i. Is area within agencys expertise
ii. Is interpretation contemporaneous with
statutes enactment
iii. Is interpretation longstanding or consistent
iv. Is Interpretation supported by reasoned
v. What car did agency give to interpretation?
iii. Does Auer v. Robbins apply?
1. Court should defer to agency interpretation of its own
ambiguous regulations unless it is clearly erroneous or
inconsistent with the regulation.
2. An Administrative rule may receive substantial deference
if it interprets the issuing Agencys own ambiguous
c. Can Plaintiff challenge the agencys exercise of policy discretion or the
thoroughness of its reasoning?
VI. The Four Pillars:
a. As long as these FOUR PILLARS are not threatened, the Court can
pretend to be formalists.
i. The federal government has near-plenary regulatory power, or
at least enough regulatory power to reach manufacturing,
contracting, and most economic activity.
ii. Congress has near-plenary power to delegate its near-plenary
legislative power to other actors
iii. Congress my combine legislative, executive, and judicial
functions in a single administrative entity.
iv. It is permissible to insulate administrative decisions makers from
political influence.
VII. Adjudication or Rule Making?- Holmes, it all has to do with the
number of people

Formal Informal
Record No Record
Section 556,557 (Difficult to 553 Notice and
Achieve) Comment
RULE (Triggered by enabling
MAKING statute in
accordance with 553( c )
554, (and 556+557) only (Most of what Agencies
when Do
ADJUDICATI triggered by enabling statute Purposely left void by
as to not hamstring
554 (a) Agencies

a. Adjudication Rule Making

i. Due Process Applies Due Process does not
ii. Small # of People Large # of People
iii. judicial Remedy Political Remedy
iv. Retrospective Prospective
v. Adjudicative Facts Legislative Facts
b. Adjudication
i. Londoner-Small number of people affected by road improvement
in which they had to pay a tax for.
ii. Association of Irritated Residents v. EPA- (Agency wants it to be
an adjudication), Court says that it the EPA did it properly if it
was an adjudication, EPA is then engaged in prosecutor
1. Franklin thinks this was decided wrong, looks more like a
non final rule action based on:
a. Large number of People
b. Perspective
c. Rule Making
i. Bi-Metallic- Assessors office raised property value in Colorado
because it was severely undervalued. Effected a large number
of people.
ii. Yesler Terrace Community Council v. Cisneros- When HUD
determined that the State of Washingtons eviction policy had
adhered to Due Process it was engaged in rule making, which
required notice and comment.
iii. NPRA v. FTC Octane Case- NPRA argues that FTC does not
have any statutory power other than by adjudication.
1. Franklin thinks this is wrongly decided as a legal matter.
a. Pros of Rules
i. Flexible
ii. Efficient
iii. More Fair/better notice
b. Cons of Rules
i. Harder to change
ii. Rules leave Gaps
iv. Airline Pilots Association v. Quesado-Clearly (ha!) this is based
on legislative facts, and looks to future(Franklin).
1. Government argues under Bi-Metallic,when agency Acts
and affects a large number of people, it is legislative, and
no due process or hearing is required.
d. Rule Making Statute 553
i. 1st Step:
1. Does 553 even apply?
a. If so then 553(a)(2)(b)
i. Provide notice of proposed rule making
1. 553(a)(2)(b)(1)-Time place nature
public proceeding
2. 553(a)(2)(b)(2)-reference to legal
3. 553(a)(2)(b)(2)-terms substantive of
proposed rule
b. 553(a)(2)(c)-Give interested persons ability to
c. 553(a)(2)(e)-Any interested person the right to
petition the commission for issuance, amend, or
repeal of a rule.
i. AND Agency shall incorporate in the rules
adopted a concise general statement of their
basis and proposal
d. United States v. Florida East Coast Ry SCOTUS-
Gives Congress words that trigger formal rule
making: Hearing + On Record
ii. Enabling Statute in own right may have
triggered a hearing
1. Rhenquest goes back to APA, and says
that paper record is ok because of
iii. On BiMetallic side of Due Process-Legislative
in nature, no Due Process required.
e. Informal Rule Making-THERE IS NO RECORD
i. Vermont Yankee v. NRDC SCOTUS- As long as acting within553,
courts should not impose any more burdens onto the Agency.
f. 553 Exceptions:
i. Guidance documents= Agency statement not needing to go
through 553(b)(A)-Not exempt of Freedom of Information Act
(552). Best current prediction on how Agency plans to enforce
in the future.
1. Interpretive
2. General Statement of Policy
3. Procedural Rule
a. SCOTUS has been silent on line dividing legislative
rule from guidance document.
b. Interpretive rule must interpret something
c. Interpretation cannot create adjudicable
i. Courts are reluctant to strike down too many
rules on procedural grounds, because do to
ossification, Agencies will just stop making
ii. 5 Tests for Exceptions
1. Agency Label Test: If agency labels something as
interpretive, then it is interpretive, if labeled as
legislative, then it is legislative.
a. Rejected
2. Substantial Impact Test- (70s-80s) If regulated parties
are significantly affected by the statement, then it is not
a. Abandoned
3. Impact on Agency Test-If rule is framed in mandatory
terms, to bind itself to rule, or over time pattern shows
agency is bound by rule, then it is to be a legislative test.
4. Legal Effects Test-
a. Whether in the absence of the rule there would not
be an adequate legislative basis for enforcement
action or other agency action to confer benefits or
ensure the performance of duties
b. Whether the agency has published the rule in the
Code of Federal Regulations
i. DC Court has kind of abandoned
c. Whether the agency has explicitly invoked its
general legislative authority, or
i. Not really important anymore
d. Whether the rule effectively amends a prior
legislative rule.
i. If answer to any is a yes then it is a
legislative rule and not an interpretative rule.
5. Short Cut Rule/Inside Out Rule- Look to see if notice
and comment was used to establish if it has binding effect
or not.
g. Formal Adjudication Statutes 556+557
i. Difficult to trigger, looks like a trial
1. Face to face, ALJ, evidence, cross examine, discussion
based on the record only.
2. 556(d)-Rule making on paper record is allowed if no part
would be prejudice (Florida East Coast Ry Argument)
h. Due Process Remember there is Procedural Due Process, and
Substantial Due Process, IDENTIFY
i. Roth Test:
1. Deprived of liberty or property (dont forget life!) interest
in a legitimate sense of entitlement
2. Flowing from an independent source such as state law.
ii. Matthews v. Eldridge (1976) SCOTUS- gives us set of 3 factors
for courts to consider for determining amount of Due Process
1. Private Interest (L)
2. Risck of Erronous Deprivation (P)
3. Government Interest (B)
a. Hands Law? Plus deference (e)
i. B<P*L+e
iii. Summary:
1. Court has begun to treat liberty interest as property
interests (particularly in prison cases).
2. Court much more reluctant to find state created property
3. Mathews test has been hard lined
a. Posners Math into Mathews/Government rarely
4. Difficult to distinguish procedural from substantial.
VIII. Judicial Review
a. Standards of Review

Abuse of
De Novo Discretion

Demandin Deferent
g ial
Clearly Jury
Erronous Standard
Questions of

i. 706 (2)(a-e) Sets Review and Limitations

ii. Substantial Evidence Standards: Factual findings in comments
are really the same as Substantial Evidence, although called
something else.. (????)
iii. Universal Cameral Corp. v. NLRB (1951) SCOTUS- What role does
an ALJs finding Play?
1. ALJs findings are subject to such probative actions as it
reasonably demands.
a. Take into account the ALJs expertise and what not
to decide how much deference should be given.
2. Seen witness=more deferential
3. Only paper=Less deferential
iv. Allentown Mack v. NLRB (Scalia) SCOTUS- SCOTUS, when looking
at the whole record sees that the board was acting irrationally.
IX. Statutory Interpretations
a. Sources
i. Statute
ii. Legislative history
iii. Legislative intent
iv. Statement of purpose
v. whole code approach
vi. in pari material (harmonious meaning of code)
1. Means the same thing throughout the code
vii. Dictionary
viii. Common Law
1. After Erie courts federal courts cannot interpret common
law, or essence of common law so they leave it to the
Agencys to define?
ix. Cannons of statutory construction
b. NLRB v. Hearst Publications, Inc. SCOTUS- What is an employee per
Wagner Act?
i. Hearst standard- Agency deference is warranted as long as
supported by the record and reasonable standing in Law
(Cheveron changes this).
ii. Court gives Agency a lot of room to develop definition on a case
by case adjudicatory basis (using Chenery II)
c. National Cable & Telecommunications Assn v. Brand X Internet
Services (2005) SCOTUS- Stare decises trumps only if prior court
decisions holds that its construction follows from unambiguous terms
of the statute and leaves no room for agency discretion. (CHEVERON
i. Agencies are free to come up with a different interpretation if
prior Judicial construction derives from Step 2 (CHEVERON).
X. The Hard Look Doctrine- Looking at agency decisions
a. Hard look doctrine examines the INPUTS, Cheveron examines the
i. Just show your work and dont be arbitrary and capricious.
ii. Substantive Hard Look
iii. Procedural Hard Look
1. Agencys job to take hard look, Courts job is to make sure
Agency appropriately weighted all the reasonable facts
and alternatives.
2. Hard Look Remedys: Remand to agency to go back and
show more work to get it right.
b. Citizens to Preserve Overton Park v. Volpe SCOTUS (informal
adjudication)-Substantial evidence review does not apply because its
neither 556-557. De Novo does not apply, because it is only
available in the narrowest of cases.
i. Arbitrary and Capricious is used and applicable
1. We dont know what he input were!
a. Post Hoc Defense not allowable.
b. Agencies started keeping Docets to prevent
being brought into court to testify.
c. Motor Vehicle Manufactures Assn of the United States v. State Farm
SCOTUS- Agencies actions were Arbitrary and Capricious because:
i. Didnt consider Airbags only (Procedurally) Didnt give a reason
as to not require just air bags.
ii. Didnt consider requiring Non-Detaching seat belts
(Procedurally) didnt explain well enough as to why to require
only spool non detatchable belts
iii. Agency was too quick to dismiss the research of the in
adequatacy of Detatchable seatbelts (substantive): you looked
at detachable seatbelts very well, but we disagree with your
d. Tummino v. Hamburg (Fed.Ct.Appeals) THE PLAN B CASE- You
havent sufficiently explained why you have departed from the Agency
practice of Extropolation
i. The arbitrary and capricious standard always applies because
the agency has not been consistant.
1. Did not follow agencies own procedures.