ADMINISTRATIVE LAW I. INTRODUCTION i. Cases: Interstate Comm. Commsn v. Cincy, NO and TX Pacific RR Co.

. Issue: Did Congress grant commission authority to fix RR rates? Court held no delegation because no express delegation by Congress. i. 3 options for Congress: Regulate themselves; Pass it on to subordinate agency (ICC); or Judicial oversight system National Broadcasting Co. v. United States United States v. Southwestern Cable Co. FDA v. Brown & Williamson Tobacco Corp. Rule: No matter how important the issue, an administrative agencys power to regulate in the public interest must always be grounded in valid grant of authority from Congress. b. Rulemaking and Adjudication i. Big point to distinguish two cases is how DP should apply depending on individual vs general application. ii. Cases: Political Delegation Doctrine Londoner v. Denver: Rule: If Legislature of a state delegates authority to a subordinate body (i.e., amount of tax to be levied), DP requires that the taxpayer have an opportunity to be heard prior to tax going into effect. i. DP requires more than simply be allowed to lodge written complaint Bi-Metallic Rule: Where the rule applies generally, DP is not violated if individuals are not afforded direct voice in its adoption. iii. Londoner and Bi-Metallic distinction chart: Nature of Decision Leg body; General Rule Leg body; Ind. Decision Subord. body; General Rule Subord. body; Ind. Decision II. ADJUDICATION Right to DP Hearing? NO NO NO YES

ADMINISTRATIVE LAW a. Constitutional Right to a Hearing (Procedural Due Process) i. Key Points: Look for whether there is a Life, Liberty, or Property Interest. Be prepared to use these fact patterns to distinguish potential exam fact patterns: Are interests on comparable level? No? Yes? Why does this matter? 1) Pre-Deprivation Hearings Goldberg v. Kelly: Welfare benefits cut off before hearing (after notice of hearing) i. Evolving view of welfare: Privilege vs. Property? Court seems to be shifting view toward accepting welfare as legit property interest ii. Pre-deprivation Hearing Required: Welfare = safety net; once gone, no help/Survival? Purpose is to produce initial determination so as to prevent mistaken termination. **DOESNT HAVE TO BE FULL TRIAL** Must be allowed oral hearing at very least 2) Procedural Due Process Analysis: Liberty/Property Int. RULE = Right/Privilege Distinction is dead in DP analysis Two-step Process: Is this consistent with Goldberg? i. Is there a life, liberty, or property issue triggering DP? ii. How much process is due as a result? Board of Regents of State College v. Roth: Teacher not rehired at the end of one-year deal. i. Question: In addition to dismiss/refuse to hire, whats needed to trigger liberty interest? Reputational Harm: (Bailey v. Richardson); Stigma/Disability: forecloses other employment functional debarment ii. Purpose of Hearing for Liberty Interest? In govt employment context, essentially to clear ones name/remove stigma Perry v. Sinderman: TX univ. teacher let go no opportunityfor a hearing to challenge basis of dismissal. i. Question: What is needed to trigger a property interest? Test: Is there a legit claim of entitlement? ii. Factually, there seemed to be a policy/implied understanding b/w parties based on written docs.

ADMINISTRATIVE LAW iii. How does this test compare to traditional notions of property? iv. Purpose of Hearing for Property Interest? Get hands on property In employment, property = JOB Paul v. Davis: i. Liberty Analysis: Stigma + govt imposed change in legal status/rights = LIBERTY VIOLATION ii. Distinguish this fact patter with the Constantineau case (law prohibiting citizens to buy/be sold alcohol) b. REVIEW OF DUE PROCESS i. Is Process Due? Deprivation of either property or liberty interest? Property: i. Legit claim of entitlement (Roth) Liberty: i. Legit claim of entitlement (Roth) ii. Dismiss + legal status change (Paul / Constantineau) iii. Broad Language (Meyers) iv. Bodily restraint + punishment (Ingraham) ii. How Much Process is Due? Matthews 3-part test: Individual Interest? Likelihood of accurate result from current procedure and value of additional procedure? Government Interest? Cleveland Board: Court will distinguish b/w process issues and substantive issues. i. Look at statute: Substantive grant of property right? If so Process is enough. c. ADJUDICATION BASICS i. Sources of Administrative Law: Organic Statutes: Can affect process used i.e., National Labor Relations Act, FTC Act, Water Pollution Act (in Seacoast) Agency Regulations State Administrative Procedure Acts ii. Rules and Orders under the APA: Rulemaking: agency process for form, amend, or repealing a rule. 551(5) Rule: Particular applicability in the future. 551(4)

ADMINISTRATIVE LAW Order: Whole or part of final disposition of a matter other than rule-making. 551(6) Basic distinction through APA is b/w rules and orders. If something doesnt qualify as a rule under APA, its presumed to be an order. iii. Adjudication under the APA: Adjudication: agency process for the formulation of an order 551(7) Formal Everything else i. Informal ii. Semi-formal iv. APA Requirements for Formal Adjudication (C.f. Goldberg v. Kelly) Impartial and unbiased presiding officer. 556(b) Notice and opportunity to participate in hearing. 554(c) Right of parties to appear with counsel. 555(b) Right to present oral and written evidence. 556(d) Right to cross-examine as required for full disclosure of facts. 556(d) Right to submit proposed findings, conclusions, exceptions. 557(c) Compilation of an exclusive record on which agency must base its decision. 556(e) Limitations on ex parte communication and combination of prosecutorial and adjudicative functions. 554(d) v. Trigger Language for formal adjudication under APA: Whether or not you have to have formal adjudication depends on whether 554(a) applies. 554(a) applies KEY ISSUE: Does 554(a) apply? If organic stat does not trigger 554(a) not required to follow all 8 requirements If triggers must follow requirements with formal adjudication. d. Statutory Hearing Rights: Triggering APA Requirements i. Key Question: What exactly triggers 554(a)? ii. Current Interpretation of Presumption No presumption by court and allows the agency to make the first call. Court will then assess whether the agency was correct. iii. Requirements for Non-Formal Adjudication APA: Prompt notice must be given of denial of written petition/application, usually with brief statement of grounds. 554(e). Otherwise NOTHING (truly informal)

ADMINISTRATIVE LAW Other potential requirements: Semi-formal Organic Statute Agency Regulations DPC always potentially applicable Baseline for all adjudications Matthews 3-part test e. Evidence and Proof Issues i. From Perales to Steadman Burdens, Standards, & Scope of Review Burden of going forward (prima facie case) Burden on whichever party has to bring enough evidence so as not to have a directed verdict/summary judgment enough so other side has to respond Burden of persuasion (or proof) Who has duty of persuading finder of fact on merits of case? In government agencies its normally the government. Standard of proof Standard the party who has burden of persuasion must meet i. Preponderance, C&C, Beyond reasonable doubt Scope/standard of review Judicial Interpretation of Rule: i. supported by substantial evidence = More than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ii. Grounds for admitting Hearsay evidence in adjudications: Essentially, this is the type of evidence your average joe will be able to bring into a hearing, so it helps them and maintains informality of hearings. APA 556 (D) Organic Statute Agency Regs iii. APA Standard of Proof APA 556(d) = preponderance of the evidence APA is only a gap-filler, so the organic statute will trump if it provides for a different standard of proof. f. Combination of Functions Baseline requirement of DP here? i. Fairness; unbiased. ii. Bias: Actual vs Probable Presumption of honesty/integrity in adjudicators Burden is on plaintiff to show bias g. Bias APA 556(b): Would the rule re bias be stricter?

ADMINISTRATIVE LAW i. Nowhere are impartial and bias defined ii. All this does is give you process. h. Ex Parte Contacts i. Definitions: On or from one side or party only APA 551 (14): Oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include request for status reports on any matter or proceeding covered by this subchapter. ii. APA 554 (d): Prohibition on Ex Parte Contacts Applies to all members of agencies Authorizes sanctions for parties who knowingly violate the rule iii. APA Remedies for Ex Parte Contacts: APA 557(d) Restates prohibition on ex parte contacts and extends to agency members. [(1)(A) & (B)] Requires decision maker who makes/receives prohibited ex parte contact to place information about such contact on the public record. [(1)(C)] Authorizes agency or ALJ, consistent with justice and policies underlying statute, to sanction party who knowingly violates ex parte rule by requiring to him show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation. [(1)(D)] Dont want to do this at federal level because you can get in serious trouble from agency One area you can contact is to call and check on status of a license iv. Ex Parte Contacts in Informal Adjudications Limits? APA: Rules of ex parte contacts applies in formal adjudications. No restriction on ex parte contact in informal adjudication. Elsewhere: Possible, but not likely to succeed. i. Estoppel Against the Government i. Viewed VERY narrowly by Ct III. ADJUDICATION REVIEW a. Constitutional Parameters i. When does a party have a right to a hearing? ii. How much process is due? b. Statutory Issues i. When does the APA apply? ii. Is the adjudication formal or informal? iii. Who may participate or intervene in adjudication?

ADMINISTRATIVE LAW iv. How flexible are the APA rules of evidence? c. Adjudication Possible Challenges to Process i. Challenges to Fairness of Decision Maker (not easy to do) Combination of functions Bias (actual, risk, appearance) Ex Parte Contacts (clearly limits on APA) ii. Holding Government Accountable Estoppel (courts not sympathetic) Document Disclosure/Open Meetings (legislation opens up documents) RULEMAKING a. Introduction to Rulemaking i. Key Issues: 1) What are the types of rulemaking and how do they work? Informal (notice and comment): Most rulemaking done here. Unlike adjudication there are rules for this. Formal: Rarely used by federal agencies. Involves public hearings a nightmare for agencies. Other: Hybrid 2) Must an agency make rules? 3) How can rules be used to avoid adjudication? 4) Must an agency follow own rules? ii. Cases: National Petroleum Refiners Assn v. FTC Rule: Look to organic statute for rulemaking authority Regulation v. Adjudication: Asking about authority to regulate. i. Policies favoring Rulemaking: Uses agency resources more efficiently Avoids singling out one party while others continue unlawful conduct/protect companies that voluntarily comply Prevents exposure to new/unexpected liability because rules are prospective Provides greater clarity and gives better notice to regulated parties Provides more open process that considers wider range of information Bowen v. Georgetown University Hospital. Rule: Medicare Statute did not allow for retroactive cost-limit rulemaking iii. APA 553 General notice of proposed rule must be published in Fed Register After notice, interested parties must have opportunity to participate by submitting data, views, arguments (written and oral)

IV.

ADMINISTRATIVE LAW iv. Is there a right to a hearing? Formal rulemaking When rules are required by statute to be made on the record after opportunity for an agency hearing, 556 and 557 of this title apply instead of this subsection. APA 553(c). In the absence of statutory trigger (i.e., when notice and comment provisions apply), there is no hearing requirement. Formal under adjudication the trigger is hearing on the record. Similar language is used for formal rulemaking. The triggering language hearing on the record is essentially the same for adjudication. Unlike Seacoast where courts are more flexible in finding trigger language, here courts are very tight in construing language. i. In the absence of hearing on the record there is not trigger language Most are informal. b. Notice and Comment: Informal Rulemaking i. Ways to challenge Rules Direct (Abbot Labs) Collateral (Nova Scotia) ii. Cases: Chocolate Manufacturers Assn v. Block (4th Cir. 1985): Flavored milk regulation. Test/Rule: Notice and Comment adequate if changes from original plan are in character with original scheme, and the final rule is a logical outgrowth of the notice and comments already given. United States v. Nova Scotia (White Fish Case) Holding: Regulation arbitrary and capricious invalid. Agency failed to disclose basis of regulation. Thus, appellants unable to respond to evidence upon which agency relied, and appellee did not respond to appellants concerns. Procedural Challenges specifically with Notice and Comment: i. Failure to Disclose Factual Basis Cant have meaningful notice and comment if agency hasnt given public data upon which to comment ii. Inadequate Concise General Statement Substantive Challenge i. Involve exercise of agencys delegated authority to make law ii. Establishes new legal standard APA 706 Scope of Review i. Reviewing court shall - (2) hold unlawful and set aside agency action, findings, and conclusions

ADMINISTRATIVE LAW found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law APA 553(c) Procedural Requirements i. After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making Submission of comments + concise general statements = sufficient.

c. Exceptions to Informal Rulemaking Requirements i. APA 553(a): General Exceptions to Notice and Comment This section applies, according to the provisions thereof, except to the extent that there is involved (1) a military or foreign affairs function of the United States; (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. ii. APA 553(b): Except when notice or hearing is required by statute, this subsection does not apply (A) to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice Test for Application of Exception: Operates prospectively Does not establish a binding norm, i.e., norm that binds regulated parties or restricts agency discretion in future cases. i. Note: Discretion may still be reviewable. See Overton Park and Webster v. Doe. Rationale for Exception: Provide internal guidance to agency officials on policy, particularly on enforcement standards Set priorities for agency action Have no impact on legal duties of parties iii. Cases: Mada-Luna v. Fitzpatrick: Holding: operating instruction was a general statement of policy under APA and thus did not require notice and comment proceedings. Warder v. Shalala: Held: Interpretive rule is not invalidated for failure to do notice and comment. Substantive or Interpretative? i. 553(b) exception for interpretative rules Inform public and agency employees concerning agencys construction of organic

ADMINISTRATIVE LAW statute or regulations (agency letting you know what statute means) ii. Substantive/legislative rules involve exercise of agencys delegated authority to make law iii. Substantive establishes a new standard instead of simply resolving an ambiguity in existing standard iv. KEY POINT: If substantive notice and comment required No notice and comment for interpretative rules Who is bound? i. General Statement of Policy: Agency no Agency employees arguably yes Courts no Public no ii. Interpretative Rule: Agency Arguably yes Agency employees arguably yes Courts Arguably no (But see Chevron/Mead) Public maybe no, maybe yes d. Beyond Notice and Comment: Formal, Hybrid, and Negotiated Rulemaking i. Cases: United States v. Florida East Coast Railway: after hearing language in grant of authority to ICC Not the APA. Holding: ICCs procedures satisfied both Interstate Commerce Act and the APA. After hearing doesnt trigger formal rulemaking. Three Procedural Challenges: i. APA argument (556, 557): Should it be formal rulemaking? ICA lacks hook therefore not formal rulemaking and thus no oral hearing required. ii. Interstate Commerce Act after hearing means there should be a hearing. Hearing is required, but the nature of the hearing not defined in statute. The statute is merely a floor, so ICC couldve had an oral hearing, but isnt required to do so.

ADMINISTRATIVE LAW Court allows ICC to interpret the act interpretation is reasonable. iii. Constitutional argument DP violation. See Londoner and Bi-Metallic Hearings normally required to adjudicate particular facts applying to one person or small groups; Not required for promulgation of general rule affecting all. Vermont Yankee Nuclear Power Corp. v. NRDC Agency faced with either case by case basis or doing a rulemaking. Chose rulemaking. Holding/Rule: Without statutory authority, courts may not impose additional process beyond what is required provided the agency employs the statutory minimum. e. Must an Agency Promulgate Rules? i. Cases: SEC v. Chenery Corp (Chenery II) Holdings: i. 1) Absent a specific, Congressional mandate agencies generally have discretion to decide whether to proceed by rulemaking or adjudication. ii. 2) An agency may announce a new, gap-filling interpretation of its organic law (or presumably, of its own regulations) in an adjudication and apply it to the party or parties. CASE BY CASE ANALYSIS KEY POINT: Not every principle essential to effective administrative law can or should be forced into a general rule to insist upon one action to exclusion of the other is to exalt form over necessity. f. Avoiding Adjudication Through Rulemaking i. Cases: Heckler v. Campbell: g. SUMMARY OF CASE LAW i. Chenery Addresses how much an agency is permitted to accomplish by adjudication when not engaged in rulemaking Agency is permitted to operate by adjudication or rulemaking as long as statute doesnt require it. ii. Campbell Addresses how much an agency is permitted to accomplish by rulemaking when required to engage in adjudication. Freedom to do some kind of rulemaking around adjudication (so agencies have a lot of flexibility to challenge rulemaking) iii. Ways to challenge rulemaking: Direct Challenge (National Petroleum Refiners; Vermont Yankee)

ADMINISTRATIVE LAW Collateral Challenge In enforcement action (Nova Scotia [white fish case]) In appeal from agency hearing (Campbell) h. Must an Agency Adhere to its Rules? i. Cases: Sameena, Inc. v. U.S. Air Force (9th. Cir. 1998): Holding: Rules required a hearing Agency must adhere to the rules. JUDICIAL REVIEW a. Scope of Review of Fact i. KEY POINTS: Rulemaking Formal = Substantial Evidence Informal = Arbitrary & Capricious If agency overrules examiner, court should look at whether: Examiner findings based on credibility of witnesses? Agency conclusion based in part on agency expertise or policy judgment? ii. Cases: NLRB v. Universal Camera Corp. i. Standard of Review = SUBTANTIAL EVID. Organic statute governs: Affirm if agency decision has substantial evidence (evidence reasonable person would accept to support a conclusion) iii. SLIDING SCALE OF JUDICIAL DEFERENCE (High to Low) No review (complete deference) Review of jury findings Substantial evidence (little lower than jury findings; uncommon to overrule but not unusual) Clearly erroneous De novo (no deference) iv. **When 556-557 not implicated and organic statute doesnt provide for substantial evidence scope of review Use ARBITRARY & CAPRICIOUS! *** b. Scope of Review of Law i. Cases: Skidmore v. Swift & Co.: SKIDMORE STANDARD: Amount of deference to agency depends on weight of following factors: i. Thoroughness evident in its consideration; ii. Validity of its reasoning; iii. Consistency with earlier and later pronouncements; and

V.

ADMINISTRATIVE LAW iv. All those considerations which give it power to persuade, if lacking power to control. Court will give greater weight to agency interpretations that have been consistent over time suggests that it has given Congress multiple chances to do something and hasnt Chevron, Inc. v. Natural Resources Defense Council: CHEVRON RULE: i. 1) Has Congress spoken directly at issue / unambiguous? (Here were looking at intent) Yes Follow what Congress has said Note: May be permitted to say Cong spoken b/c look at dictionary definition it is PLAIN meaning No Clear delegation? If clear delegation deference Unclear delegation go to step 2 ii. 2) If silent/ambiguous, is agency answer based on permissible (reasonable) construction of statute? Doesnt have to be the only reasonable construction, just has to be a reasonable construction. If yes Deference If no No deference iii. BOTH Formal & Informal RM get Chevron assuming agency acted w/ RM power iv. REMEMBER: Consistency matters under Skidmore, but not Chevron! Scope of Chevron Rule: Should rule apply when i. Interpreting Constitution? No. ii. Interpreting another organic statute? No. Expert on own act, not others. iii. Interpreting APA? No. APA about court oversight, so too much deference defeats purpose of APA. iv. Interpretation of statute language triggering formal adjudication under APA 554? Prob not, but compelling argument may get you some deference. NOTES: i. When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agencys policy, rather

ADMINISTRATIVE LAW than whether it is a reasonable choice within gap left by Congress, the challenge must fail. c. Scope of Review of Exercises of Discretion i. Cases: Overton Park v. Volpe: Issue: Question of Fact or Law? i. Question of FACT Holding: Decision didnt fall into agency discretion exemption from judicial review. i. Arbitrary and Capricious = default standard under APA 706. (Subst. Evid. only if formal rulemaking or formal adjudication.) Review of Discretion Inquiry: i. Did Secretary act w/in scope of his authority (ultra vires)? ii. Was the Secretarys action arbitrary/capricious i.e., was the decision based on consideration of relevant factors and was there a clear error of judgment? iii. Did the Secretary follow procedural requirements? Motor Vehicle Manufacturers Assn v. State Farm Mut.: Standard of Review: Arbitrary and Capricious (APA 706) Basically, was the decision reasonable? i. Did agency consider factors Congress did not want considered? ii. Did agency fail to consider an important aspect of the problem? iii. Did agency present explanation inconsistent with the record? iv. Did the agency give a wholly implausible explanation? Big Picture: i. Agency decisions longer, more explanation ii. More careful about rescinding decisions less likely to stick necks out in rulemaking Court here is looking into substance. Does it make sense for limited authority to look into procedure (which they are good at) vs substance (which the court isnt good at) ii. Which to use? Chevron or MVMA Challenging Use Overton Park/MVMA if Agency making policy choice under broadly worded statute (e.g., Petroleum Refiners, Southwest Cable, MVMA); OR Designated official making clearly identified decision under statute (Overton Park, Webster v. Doe)

ADMINISTRATIVE LAW d. Review of Scope of Review i. Cases: National Cable & Telecomm. Assn v. Brand X Internet Services: i. Sub-issue 1: Is the FCC bound by Circuit precedent? i. Holding: If court holds that statute unambiguously closes agency interpretation (thus, no gap fill) then it can displace confliction agency construction. RULE: Congress may give authority to agencies to make rules w/ force of law in at least two ways: i. General rulemaking; OR ii. Authorityto make rules in particular fields e. CHEVRON DECISION TREE

f. Cause of Action, Reviewability, Jurisdiction, Immunity i. APA 701-706 ii. Cases: Johnson v. Robison: Issue: Had Congress prohibited constitutional review? i. No. The point of prohibition of judicial review was two-fold: Prevent large increase in fed docket

ADMINISTRATIVE LAW Allow agency to become expert on subject consistency ii. Court wont make an inference of constitutional review prohibition must have clear and convincing evidence of Congressional intent Bowen v. Michigan Academy of Family Physicians: Presumption of Congressional intent for judicial review of agency action Requires C & C evidence of contrary Legislative Intent to overcome. Webster v. Doe (1988): NO law to apply doctrine

g. Standing A3 Standing

i. Injury in Fact Constitutional Provisions: Art. III. 2: Cases and Controversies, Standing Doctrine Art. III. 3: Faithfully Execute Laws i. Separation of Powers issue if any private citizen is able to ask court to enforce the law (make government follow law) Cases: Lujan v. Defenders of Wildlife: i. Const. Standing Requirements: Art. III. Injury in fact Concrete/Particular Not Abstract/general Actual or imminent Causality Redressability ii. Process Injuries and Redressability standing requirements are slightly weakened in the DP area wont require proof of redressability. Requirement of injury-in-fact remains. Federal Election Commission v. Akins: i. Standing Analysis: Injury met, even though general b/c it impacted a fundamental right Prudential Standing ii. Zone of Interests **Prudential Standing Requirements** APA 702: NEW TEST = ZONE OF INTEREST TEST ADPSO v. Camp (Data Processing): i. Test:

ADMINISTRATIVE LAW Whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Those who might fall within that category of aggrieved persons who, under 702, are entitled to judicial review of agency action. h. Ripeness Derived out of Courts equity power i. Standard Ripeness Analysis: Factors? 1) Fitness for judicial review Nature of the issue: i. is it purely legal? (protects court from deciding cases in the abstract w/o factual context) Finality of agency action (protects agency from interference while it is developing policy) 2) Hardship to the parties of withholding review (protects parties from serious harms caused by illegal agency action) ii. Is pre-enforcement review proper/authorized? APA Review Provisions: 702, 704 i. Arguably establishes presumption of reviewability ii. Requires clear and convincing evidence in order to overcome presumption. iii. Cases: Abbott Laboratories v. Gardner: Ripeness Analysis: Toilet Goods Assn v. Gardner: Ripeness Analysis: APA Review Provisions: i. 702, 704 Arguably establishes presumption of reviewability Requires clear and convincing evidence in order to overcome presumption. i. Finality i. Finality Test ii. Policies in support of finality requirement: Immediate judicial review denies agency chance to correct its own mistakes and apply its expertise Piecemeal review is inefficient and unnecessary thus burdening courts

ADMINISTRATIVE LAW Regulated parties are not harmed, except for litigation costs (which arent enough) iii. Problem with Agency Inaction when is it final? APA 551 (13): Failure to act is a form of action 706: unlawfully withheld or unreasonably delayed iv. Deadlines Matter: Some statutes contain deadlines for judicial review Courts will enforce these deadlines If a party doesnt raise an objection to an agency action w/in the time limit, courts more than likely bar claims. **Statutory deadlines for judicial review can be avoided: Party whose claim would be barred was not on notice of content/effect of agency action. v. Litigating Objections to Agency Procedure: See APA 704 Remember, focus of any proceedings likely will be on the merits! j. Exhaustion i. Cases: Myers v. Bethlehem Shipbuilding Corp. Rule of Judicial Administration legal basis for exhaustion requirement McCarthy v. Madigan: Summary of Exhaustion Law In determining whether exhaustion is required, Court employed a balancing test weighing: i. Need to protect judicial economy and administrative authority; against ii. Individuals interest in immediate judicial review Policies favoring exhaustion: i. Protects agency authority Congress gives agencies primary authority over areas they administer; Agency should have chance to cored their own mistakes experience; Premature review would encourage disregard of agency procedures. ii. Promotes judicial efficiency Agency can correct own errors mooting appeals and/or avoiding piecemeal review; Record can be built before review occurs (c.f., Fortis dissent in Toilet Goods) Three circumstances when individual interests may outweigh policies favoring exhaustion:

ADMINISTRATIVE LAW i. Undue prejudice resulting from potentially long delay in admin action or other irreparable harm even if delay not unreasonably long (i.e., serious medical setback) ii. Doubt about whether agency empowered to grant relief requested (e.g., power to rule statute unconstitutional) iii. Agency is biased or has a rule on issue before it, making exhaustion an exercise in futility Darby v. Cisneros When is party required to exhaust administrative remedies under APA? i. If congress requires exhaustion; or ii. If the agency, by rule: A) requires exhaustion; and B) states that the challenged agency action is inoperative until administrative remedies are exhausted. REVIEW OF JUDICIAL REVIEW a. Review of Fact i. Standards: Both highly deferential to agency Substantial Evidence (formal rulemaking & adjudication) Universal Camera Arbitrary and capricious b. Review of Law i. Skidmore, Chevron, Mead, Brand X Internet ii. Review deferential if agency makes rules with the force of law c. Review of Discretion i. Overton Park, MVMA d. Threshold Issues: If you get a question on exam, watch through each topic. i. Reviewability Johnson, Bowen, Webster ii. Standing Art. III (Lujan) Prudential Zone of Interest (Data Processing, Air Courier Conference, NCUA) iii. Ripeness Abbott Labs, Toilet Goods iv. Finality Socal v. Exhaustion McCarthy, Darby ROLE OF AGENCIES IN THREE-BRANCH GOVERNMENT a. Conforming Agency Practice to Article III i. Bottom Line: What types of cases MUST be assigned to Art. III court?

VI.

VII.

ADMINISTRATIVE LAW Government not a party; AND Purely private right not closely intertwined w/ legit federal statutory scheme Problem in Northern Pipeline and Stern is: Purely private rights claim combined with Court-like (nonadjunct) tribunal

ii. Cases: Crowell v. Benson: Issue is whether facts concerning private rights (individual v individual) can be adjudicated by an Art. I court. Key Elements of Article III Analysis: i. Distinction between questions of law and fact Law: Art. III requires that Art. III courts review legal questions (de novo) (Marbury v. Madison) Fact: Public: Art. III authorizes Art. I tribunals to act only if it involves a public right. Private: Art. III allows Art. I tribunal to adjudicate as adjunct to the court. Congressionally created rights allow for more control/discretion Non-congressionally created rights do not allow for control/discretion Ex: Common-law K rights ii. Distinction between questions of public and private rights: Private = Individual v. Individual Public = Government v. Individual Northen Pipeline Const. Co. v. Marathon Pipe: Bankruptcy courts are Art. I tribunals court-like agency Private-rights case Crowell was narrowed; not overruled. Essential attributes of Art. III Court: i. Broad SMJ; ii. Same range of functions as district courts, not just fact finding; iii. May exercise all judicial powers; iv. Adjunct is subject to more deferential standard of judicial review (i.e., clear and erroneous standard v. Adjunct has power to issue enforceable orders CFTC v. Schor: (Distinguishes Northern Pipeline): Factors for Analysis:

ADMINISTRATIVE LAW i. Extent to which essential attributes of Art. III courts are preserved or it not preserved, handed over to Art. I Spectrum. ii. Origin of the rights to be adjudicated iii. Congressional concerns that motivated deviation from traditional arrangements why did Congress set things up the way they did? Stern v. Marshall: Majority Rationale: (Somewhat follows Brennan dissent in Schor) i. Look at historical precedent (1789 case-type): These types of cases have to be in Art. III courts Exceptions: Territorial Courts Courts-martial Public Rights claims ii. What is a Public Right? Rights that are integrally related to particular federal government action Now treating Schor and Crowell as public right claims iii. Is adjunct of the court now an exception to Art. III courts? Yes only if a private right claim that doesnt fall under other traditional exceptions. b. The Nondelegation Doctrine Article I Legislative Issues i. Cases: A.L.A. Schecter Poultry Corp. v. United States: Test i. Under Schechter, an acceptable delegation is clearly defined Not free to delegate power and have grantee make it up as they go. ii. Const. allows Congress to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Agencies can fill in the blanks, apply rules in certain situations, and interpret. Industrial Union Dept. v. American Petroleum Inst. Rehnquist: Three Functions of Non-delegation Doctrine i. Congress sets policy ii. Agency gets intelligible principle

ADMINISTRATIVE LAW iii. Court gets standard of review Whitman v. American Trucking Assns.: Holding: i. Can EPA do cost-benefit analysis? CHEVRON STEP 1 ANALYSIS NO! Issues: i. Non-Delegation issues? Court has only found a lack of intelligible principle in only two statutes in whole history of doctrine. ii. Court finds intelligible principle Grants wide discretion. c. The Legislative Veto i. Cases: INS v. Chadha: Holding: One-House veto is legislative veto and unconstitutional under Article I. i. Art I.1.1: Establishes Legislative Power ii. Art I.7.2: House Senate President for all bills iii. Art I.7.3: Presentment Clause iv. Art I.8.4: Plenary power over naturalization Rule: Legislative action is not legitimate unless there is bicameral approval and presentment to the President. Is it Legislative? i. Ask whether it alters the rights/duties/status of persons. If yes Legislative. Bottom Line: i. Congress may delegate quasi-legislative power to Executive ii. Congress can control exercise of such power only by further legislative act satisfying bicameralism and presentment iii. Congress may not participate directly in execution iv. Formalism sometimes works d. Executive Power to Appoint i. Cases: Buckley v. Valeo: i. Principal/Superior Officers ii. Inferior Officers iii. Employees e. Executive Power to Remove i. Removal Power: Implied - No req. for Senate Confirmation No provision in Constitution concerning President's authority to remove

ADMINISTRATIVE LAW General Rule: President has implied power to remove any executive officer unless that removal power is limited by Congressional statute. Congress may limit removal power provided that independence from President is desirable; Congress may not reserve the removal power for itself. Congress may limit removal: If it is an office where independence from President is desirable; OR If the law does not prohibit removal, but, rather, limits removal to instances where good cause is shown

ii. Cases: Myers v. United States: Rule: President has both power to appoint but also power to remove executive officers. Majority Analysis: "Power of removal is incident to power of appointment" In order to faithfully execute laws necessitates the exclusive power of removal for the executive. Humphreys Executor v. United States: Rule: President does not possess unlimited removal power, so Congressional limitation on removal power are proper for those officers who need a degree of independence from the President. Majority Analysis: Congressional intent to create a body of experts who would gain experience by length of service; one independent of executive authority, except in its selection, and free to exercise its judgment w/o leave or hindrance of any other official or department. iii. President does not have exclusive authority to appoint executive officers Morrison v. Olson: Rule: Since the Ind. Counsel is an inferior officer, a law giving judges authority to appoint an Ind. Counsel does not violate Constitution. Majority Analysis: i. Inferior officer for following reasons: Subj to removal by higher Exec Branch official Empowered by the Act to perform only certain, limited duties Office is limited in jurisdiction Office is limited in tenure ii. Court adopts a Chadha reading of Myers TEST: Violation of Separation of Powers i. Does statute