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Administrative Law Outline

Chapter 2: The Constitutional Right to a Hearing

1. Hearings and Welfare Termination: Due Process and Mass Justice


a. When welfare is discontinued, only a pre-termination evidentiary hearing
provides the recipient with procedural due process. Goldberg v. Kelly
i. Welfare is an entitlement or quasi-property, which falls under the
Due Process Clause. See fn 8 and Reich, The New Property (1964)
ii. The crucial factor in this context is that termination of aid pending
resolution of the controversy over eligibility may deprive an
eligible recipient of the very means by which to live while he waits
iii. The hearing need not take the form of a judicial or quasi-judicial
trial – no record required
1. Decisions must rest solely on the legal rules and evidence
adduced at the hearing
iv. The opportunity to be heard must be tailored to the capacities
and circumstances of those who are to be heard
1. Can confront and cross-examine adverse witnesses
2. Can retain counsel if desired
2. Interests Protected by Due Process: Liberty and Process
a. Liberty and Process as Defined in Roth
i. A non-tenured teacher who is not rehired does not have a
constitutional right to a statement of reasons and a hearing on the
university’s decision. Board of Regents v. Roth
1. Due Process analysis does not apply if there is not a
deprivation of “life, liberty or property”
2. To determine whether due process rights apply, look at the
nature of the interest at stake
a. Liberty – very broad indeed
i. No reputational damage
ii. No stigma or disability that prevent teacher
from getting new job – somewhat less
attractive to new employers is not enough
b. Property
i. Must have a legitimate claim of entitlement
to have a property interest
ii. Created and defined by existing rules or
understandings that stem from an
independent source such as state law
1. Perry v. Sindermann: since implied
contracts are protected by state law,
can serve as basis for entitlement
3. Teacher had no liberty or property interest as statute clearly
proscribed for non-retention

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ii. There may be a constitutional distinction between being deprived
of what you already have and being denied something that you
want but do not yet have; lower courts apply due process to an
agency’s ultimate rejection of an application for an entitlement
b. Refining the Roth Approach to Property and Liberty
i. The Due Process Clause provides that certain substantive rights –
life, liberty and property – cannot be deprived except pursuant to
constitutionally adequate protection. Cleveland Board of
Education v. Loudermill
1. If state law creates a property interest, the process that is
due is determined by federal rather than state law
ii. The procedures that a state comes up with are not determinative.
Bishop v. Wood
iii. “Shall” does not automatically create an entitlement; read against
the backdrop of prosecutorial discretion. Town of Castle Rock v.
Gonzales
iv. A stigma qualifies as a deprivation of liberty only if the state
makes it in connection with some other change of right or status
recognized by state law. Paul v. Davis
1. Stigma plus
a. Siegert v. Gilley: stigmatizing statements not uttered
incident to termination do not meet standard
3. Timing of Trial-Type Hearings
a. Due process does not require that prior to the termination of Social
Security disability payments the recipient be afforded an opportunity for
an evidentiary hearing. Matthew v. Eldridge
i. Three factor analysis
1. Private interest that will be affected
2. Risk of erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards
3. Governmental interests, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail
ii. Something less than an evidentiary hearing is sufficient prior to
adverse administrative action; applying the factor test
1. Other governmental benefits kick in; disability benefits are
not based on financial need
2. Potential value of oral presentation is low because doctors
are authoring the reports; full access allowed to state’s
information
3. Paying for process would reduce money available to
disability recipients
b. Sometimes, inspection or audit may substitute for a pre-deprivation
hearing; emergency cases

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c. Gilbert v. Homar: no prior procedural protection required to suspend,
without pay, a police officer accused of a felony drug offense
4. Elements of a Hearing
a. Common law remedies are fully adequate to afford due process to students
subjected to corporal punishment in schools. Ingraham v. Wright
i. The court applied Mathews analysis, viewed against the
background of history, reason and the past course of decisions
1. No deprivation of substantive rights as long as disciplinary
corporal punishment is within the limits of the common-
law privilege
2. Risk of punishment without cause is low
a. Distinguished Goss v. Lopez in which 10 day
suspensions were held to require informal
conferences
3. Policy choice to allow corporal punishment
b. Judicial remedies provide due process when a prior administrative
proceeding is infeasible.
c. No right to have counsel appointed at public expense at administrative
hearings. Turner v. Rogers
d. Walters v. National Ass’n of Radiation Survivors: statute that limited
attorneys fees to $10 in veteran’s benefit cases upheld
e. Board of Curators, Univ. of Mo. v. Horowitz: trial type process is not the
best way to make all decisions
f. Due process requires no hearing at all if there is a factual issue in dispute.
Conn. Dep’t of Public Safety v. Doe
5. The Distinction Between Rulemaking and Adjudication
a. Particular and General Applicability
i. If the legislature commits to some subordinate body the duty of
determining whether, in what amount, and upon whom a tax shall
be levied, and of making the assessment and apportionment, due
process of law requires that at some state of the proceedings before
the tax becomes irrevocably fixed, the taxpayer shall have an
opportunity to be heard… Londoner v. Denver
1. Gets a trial type hearing
2. Might not be persuasive post-Mathews
ii. There is not opportunity to be heard before a superior board
decides that the local taxing officers have adopted a system of
undervaluation and raises the taxable values of all property a fixed
amount. Bi-Metallic Investment Co. v. State Bd. Of Equalization
1. Adoption of agency rules is not covered by due process –
would be holding the same hearing over and over
iii. United States v. Florida East Coast Ry. Co.: there is a recognized
distinction in administrative law between proceedings for the
purpose of promulgating policy-type rules or standards, on the one
hand, and proceedings designed to adjudicate disputed facts in
particular cases on the other

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iv. Some authorities distinguish Londoner and Bi-Metallic by focusing
on the nature of the facts in issue; adjudicative vs. legislative facts,
respectively
b. Regulations Applicable to a Single Entity
i. A public hearing on a regulation satisfies procedural due process
even if only a single party is affected by the regulation. Anaconda
Co. v. Ruckelshaus
1. No right to a trial type adjudicatory hearing

Chapters 3 & 4: Administrative Adjudication

1. Statutory Adjudication Rights


a. Federal APA: agencies are required to use APA specified rules for
evidentiary or trial type hearing only if an external source requires an
evidentiary hearing – formal adjudication
i. Otherwise, agencies are free to choose their own dispute resolution
procedures – informal adjudication
b. § 554(a): gateway provision
i. External source must provide explicitly that the APA applies or
must use the code words “on the record” or their equivalent
ii. See Other Outline for more APA provisions
c. Chevron deference applies to an agency’s determination that a public
hearing, rather than a formal APA adjudicative hearing, is required by an
enabling statute. Dominion Energy Brayton Point, LLC v. Johnson
i. EPA was not construing the APA, but rather, the CWA
2. Limiting Issues to Which Hearing Rights Apply
a. The Secretary of Health and Human Services may rely on published
medical-vocational guidelines to determine a claimant’s right to Social
Security disability benefits. Heckler v. Campbell
i. Guidelines were not arbitrary or capricious
ii. Even when an agency’s enabling statute expressly requires it to
hold a hearing, the agency may rely on its rulemaking
authority to determine issues that do not require case-by-case
consideration
1. This displaces an individual’s statutory right to an
evidentiary hearing on that issue
iii. The regulations afforded claimants ample opportunity both to
present evidence are relating to their own physical abilities and to
offer evidence that the guidelines do not apply to them
iv. General factual issues that apply in many cases may be as fairly
resolved through rulemaking as by introducing testimony of
experts at each hearing
b. American Hospital Ass’n v. NLRB: even if a statutory scheme requires
individualized determinations, the decisionmaker has the authority to rely
on rulemaking to resolve certain issues of general applicability unless
Congress clearly expresses an intent to withhold that authority

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c. Adjudication-trumping rules are valid even without an explicit provision
allowing people to apply for a waiver of the rules. FCC v. WNCN
Listerners Guild; Yetman v. Garvey
d. Administrative summary judgment is permitted. Weinberger v. Hynson,
Westcott & Dunning, Inc.
3. The Conflict Between Institutional and Judicial Decisions
a. Institutional Decisions and Personal Responsibility
i. A statute that requires an agency to conduct a hearing does not
permit one official to examine the evidence and another official,
who has no considered the evidence, to make the agency’s findings
and order. Morgan I
1. The weight ascribed by the law to the findings rests upon
the assumption that the officer who makes the findings
has addressed himself to the evidence and upon that
evidence has conscientiously reached the conclusions
which he deems to justify – does not mean the Secretary
has to do everything
ii. Morgan II: the Secretary reading the summary presented by
appellants’ briefs and he conferring with his subordinates who had
sifted and analyzed the evidence was sufficient to comply with
Morgan I
iii. If a hearing examiner prepares a proposed decision, the parties
probably have a right to see and object to it in the absence of a
statutory requirement. Ballard v. Comm’r
iv. Inquiring into the mental processes of decisionmakers must be
avoided absent a strong showing of bad faith or improper behavior
b. Ex Parte Contacts
i. Questionable ex parte contacts do not require an agency decision to
be vacated if no threats or promises were made, they had no effect
on the ultimate decision and no party benefitted from the improper
conduct. Professional Air Traffic Controllers Org. (PATCO) v.
Federal Labor Relations Authority
1. If hearings are formal adjudications within the meaning of
the APA, § 557(d) governs ex parte communications –
prohibits ex parte communications “relevant to the merits
of the proceeding” between an “interested person” and an
agency decisionmaker
a. Applies only to interested persons; Congress did not
intend limited application
b. Requests for status reports are permitted, even when
directed at agency decisionmakers; agency integrity
comes first in doubtful cases
c. Relevant to the merits should be construed broadly
2. Common sense guidelines; disclosure of ex parte
communications prevents the appearance of impropriety
and are an instrument of fair decisionmaking

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3. Two remedies: disclosure or show cause
4. Agency proceedings that have been blemished by ex parte
communication are voidable – question of irrevocable taint
ii. Portland Audubon Soc’y v. Endangered Species Comm.: the
President is an interested person in the adjudication context
c. The Role of Political Oversight
i. When such a Congressional investigation focuses directly and
substantially upon the mental decisional processes of a
Commissioner in a case which is pending before it, Congress is not
longer intervening in the agency’s legislative function, but rather,
in its judicial function. Pillsbury Co. v. FTC
1. This is not permitted because it sacrifices the appearance of
impartiality and raises concerns about the right of private
citizens to a fair trial
ii. D.C. Federation of Civic Ass’ns v. Volpe: Pillsbury rule is limited,
more or less, to decisions reached in evidentiary hearings
iii. DCP Farms v. Yeutter: allowed ex parte contact before the hearing
began
d. Separation of Functions
i. Staff members who engaged in adversary conduct on the agency’s
behalf cannot serve as an administrative decisionmaker or furnish
off-the-record advice to the decisionmakers in that same case.
Department of Alcoholic Beverage Control v. Alcoholic Beverage
Control Appeals Board (Quintanar)
1. Construing the California APA, communications are
permitted regarding uncontroversial procedural matters and
an agency decisionmaker may receive advice from
nonadversarial agency personnel
ii. Staff members who did not play adversary roles in a particular case
are permitted to furnish off-the-record advice to agency heads in
that same case. Consumer Advocate Division v. Tennessee
Regulatory Authority
iii. Withrow v. Larkin: an agency head with combined investigatory
and adjudicative functions does not violate due process
e. Bias
i. The test for disqualification due to bias is whether a disinterested
observer may conclude that the agency has in some measure
adjudged the facts as well as the law of a particular case in
advance of hearing it. Cinderella Career and Finishing Schools,
Inc. v. Federal Trade Commission
1. Individual commissioners cannot prejudice cases or make
speeches which give the appearance that a case has been
prejudiced in the name of alerting the public of suspected
violations of the law
2. Difference between “reason to believe” and giving the
appearance the case is prejudged

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ii. Personal interest or animus from an extrajudicial source
disqualifies an adjudicator
iii. Does professional bias disqualify an adjudicator?
1. Yes – Gibson v. Berryhill – as-applied challenge
2. No – Friedman v. Rogers – facial challenge
4. Findings and Reasons
a. If a statute requires reasoned decisions, court may and should require
agencies to explain their decisions. Ship Creek Hydraulic Syndicate v.
State
i. Decisional document sufficient if it include determinative reason
for final action; detailed finds are not required
1. Improve decision making
2. Facilitate individualized consideration
3. Makes it easier to raise legitimate objections
ii. APA § 557(c): requirement to state facts and reasons for decision
b. AT&T Wireless PCS, Inc. v. City Council of Virginia Beach: minutes of
meeting in which a decision is made suffice provided they give a reason
for the action
c. Post hoc rationalizations do not cure failures to make findings or state
reasons
5. Protection of Reliance Issues
a. Notice of Applicable Legal Standards
i. FCC v. Fox Television Stations, Inc. (Fox II)
1. A fundamental principle in our legal system is that laws
which regulate persons or entitles must give fair notice of
conduct that is forbidden or required
2. Void for vagueness doctrine
a. Regulated parties should know what is required of
them so they may act accordingly
b. Precision and guidance are necessary so that those
enforcing the law do not act in an arbitrary or
discriminatory way
ii. Generally retroactivity is the norm in agency adjudications no less
than in judicial adjudications – except in the case of a manifest
injustice. Retail, Wholesale & Dep’t Store Union v. NLRB
1. Factor approach deemphasized recently; courts balance
concerns about reliance and unfair surprise instead
b. Equitable Estoppel
i. States can be estopped by the actions of its agents. Foote’s Dixie
Dandy, Inc. v. McHenry
1. Estoppel will protect citizens only to the extent that he
relied upon actions or statements by an agent
2. Essential elements
a. The party to be estopped must know the facts

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b. He must intend that his conduct shall be acted on or
must so act that the party asserting the estoppel had
a right to believe it is so intended
c. The latter must be ignorant of the true facts
d. He must rely on the former’s conduct to his injury
ii. The Supreme Court has never accepted an estoppel claim
1. Office of Personnel Management v. Richmond: the Court
does not say never but says you cannot expect perfect
performance from the government
iii. Heckler v. Community Health Services: estoppel requires
reasonable reliance

Chapter 5: Rulemaking Procedures

1. Definition of “Rule”
a. The implementation or prescription of law or policy for the future
b. Federal APA § 551(4)
c. Retroactive effect of a rule changing hospital reimbursement rates is
invalid. Bowen v. Georgetown University Hospital
i. A statutory grant of legislative rulemaking authority will not, as a
general matter, be understood to encompass the power to
promulgate retroactive rules unless that power is conveyed by
Congress in express terms
ii. Scalia: by the plain terms of the statute, rules have legal
consequences only for the future
iii. Landgraf v. USI Film Products: deciding whether a statute
operates retroactively is not a mechanical task but judges have
good instincts
2. Initiation of Rulemaking
a. Giving Notice
i. Chocolate milk manufacturers did not receive adequate notice that
an alteration to the WIC program would include chocolate milk.
Chocolate Manufacturers Ass’n v. Block
1. Test: Notice is adequate if the changes in the original plan
“are in character with the original scheme,” and the final
rule is a “logical outgrowth” of the notice and comments
already given
a. If the final rule materially alters the issues involved
in the rulemaking or “substantially departs from the
terms or substance of the proposed rule,” the notice
is inadequate
2. No suggestion during the process that flavored milk would
be further regulated
ii. Long Island Care at Home, Ltd. v. Coke: logical outgrowth test
endorsed but not applied in a demanding way

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iii. Notice must necessarily come from agency; some commentators
disagree
b. Disclosing Supporting Data
i. When the basis for a proposed rule is a scientific determination, the
scientific material which is believed to support the rule should be
exposed to the view of interested parties for their comment. United
States v. Nova Scotia Food Products Corp.
1. There are no sound reasons for secrecy or reluctance to
expose to public view (with an exception for trade secrets
or national security) the ingredients of the deliberative
process
2. When the pertinent research material is readily available
and the agency has no special expertise on the precise
parameters involved, there is no reason to conceal the
scientific data relied upon from the interested parties
ii. Known as the Portland Cement Doctrine
1. Might not be as broad as it appears and is questionable
from a legal perspective
iii. Courts disagree on how to treat subsequent additions to the record
3. Public Participation
a. Informal Rulemaking
i. So called paper hearing
ii. Dominant form of rulemaking today
b. Formal Rulemaking
i. United States v. Florida East Coast Railway Co.
1. When a statute authorizes rulemaking of general
applicability, it does not require an agency to go beyond the
informal procedures of 553 unless the statute explicitly
provides that the rule be made after a hearing on the record,
or uses language very similar to that
ii. §§ 556-57
iii. Corn Products Co. v. FDA – the Peanut Butter Incident
c. Hybrid Rulemaking
i. The APA established the maximum procedural requirements
which Congress was willing to have the courts impose upon
agencies in conducting rule making procedures. Vermont Yankee
Nuclear Power Corp. v. NRDC
1. Absent constitutional constraints or extremely compelling
circumstances the administrative agencies should be free to
fashion their own rules of procedure and to pursue methods
of inquiry capable of permitting them to discharge their
multitudinous duties
2. Otherwise
a. Judicial review would be unpredictable
b. Would compel agencies to employ full panoply of
procedural devices every time

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c. Fails to acknowledge that informal rulemaking can
take into account information off the record
3. Levin: you cannot impose procedure beyond a statute but
you can take some liberties and read statutes “creatively”
ii. Pension Benefit Guaranty Corp. (PBGC) v. LTV, Corp.: the Court
is aware that arbitrary and capricious review has the potential to be
abused to subvert Vermont Yankee
1. Court also applied Vermont Yankee in the context of
informal adjudication
4. Procedural Fairness in Rulemaking
a. Role of Agency Heads
i. An agency has must understand the contents of written summaries
or transcripts, but need not read all or even any, given that he or
she understand their contents so they can make an informed
decision
b. Ex Parte Contacts
i. Home Box Office, Inc. v. FCC
1. Communications which are received prior to issuance of a
formal notice of rulemaking do not, in general, have to be
put in a public file
2. Once notice of proposed rulemaking has been issued,
however, any agency official or employee who is or may
reasonably be expected to be involved in the decisional
process of the rulemaking proceeding should refuse to
discuss matter relating to the disposition of a rulemaking
proceeding with any interested private party, or an attorney
or agent for any such party, prior to the agency’s decision
a. If ex parte communications occur, summaries
should be added to the record
ii. Sierra Club v. Costle
1. EPA has the authority to decide what conversations are of
central relevance and therefore must be placed in the
docket
2. In the absence of any further Congressional requirements,
the Court held it was not unlawful EPA not to document a
meeting involving the President and agency officials during
the post comment period, since EPA made no effort to base
the rule on any “information or data” arising from that
meeting
3. D.C. Federation test: before an administrative rulemaking
may be overturned simply on the grounds of Congressional
pressure:
a. The content of pressure upon the Secretary is
designed to form him to decide upon factors not
made relevant by Congress in the applicable statute

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b. The secretary’s determination must be affected by
those extraneous considerations
i. Test failed; Congress should vigorously
represent the interests of their constitutes
c. Bias and Prejudgment
i. Cinderella does not apply in the rulemaking context. An agency
member may be disqualified from rulemaking only when there is a
clear and convincing showing that he has an unalterably closed
mind on matters critical to the disposition of the rule making.
Association of National Advertisers, Inc. v. FTC
1. Statements amounted only to observations of legislative
facts
5. Issuance and Publication
a. See Other Outline
6. Regulatory Analysis
a. Executive Order 12,866: Cost-benefit analysis in certain cases
b. The court heavily criticized the cost-benefit analysis undertaken by EPA
in issuing a rule under TSCA on discounting, time frame and other
substantive bases. Corrosion Proof Fittings v. EPA
i. Cotton Dust case: if a statute directs an agency to issue a rule that
even the agency itself would not deem cost-justified, the agency
must follow the statute
ii. Entergy Corp. v. Riverkeeper, Inc.: the determination of whether a
statute permits cost-benefit analysis must be worked out on a case
by case basis
iii. Business Roundtable v. SEC (D.C. Cir. 2011) – requires rigorous
CBA; criticized for going too far

Chapter 6: Policymaking Alternatives

1. Rulemaking Exemptions
a. Good Cause Exemptions
i. The good cause exemptions for notice-and-comment procedure
must be “narrowly construed and reluctantly countenanced”
1. APA § 553(b)(B) – exempt from notice and comment when
it would be “necessary, impracticable, or contrary to the
public interest”
a. Usual procedure was unnecessary when making a
technical correction by reinstating a rule that was
mistakenly dropped during re-codification. United
States v. Sutton
ii. The court found that a rule streamlining revocation of a pilot
license based on information obtained by the TSA fit within the
good cause exception. Jifry v. Federal Aviation Administration
1. Good cause is found in emergencies or where delay could
result in serious harm (the court found the latter applicable)

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iii. Can also allow a rule to become effective immediately
1. United States v. Gavrilovic: DEA could not make a drug
schedule 1 effective immediately just to shut down a drug
maker
b. Exempted Subject Matter
i. Found in federal and state APAs
c. Procedural Rules
i. Rules of agency organization, procedure or practice are exempted
from usual notice and comment procedures by federal APA §
553(b)(A)
ii. The court held that a Department policy that limited FOIA
documents to those dated before the date of the request was
procedural and thereby exempt. Public Citizen v. Department of
State
1. The test is “whether the agency action encodes a
substantive value judgment”
a. A judgment about procedural efficiency cannot
convert a procedural rule into a substantive one
d. Guidance Documents
i. Legislative Rules and Guidance Documents
1. Legislative rule: has the force of law, that is, it is binding
and enforceable in the same way as other species of
effective law
2. Guidance documents: not binding on agencies or citizens
ii. Policy Statements
1. The court found that the FDA had issued a guidance
document that did not require notice and comment.
Professionals and Patients for Customized Care v. Shalala
a. A general policy statement does not establish a
binding norm
b. When the agency applies the policy in a particular
situation, it must be prepared to support the policy
just as if the policy statement had never been issued
c. Analysis
i. Start with agency’s characterization – given
some, but not overwhelming, deference
ii. The key inquiry is the extent to which the
challenged policy leaves the agency free to
exercise its discretion to follow or not
follow that general policy in an individual
case, or on the other hand, whether the
policy so fills out the statutory scheme that
upon application one need only determine
whether a given case is within the rule’s
criteria

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2. Concerns about abuse have led some authorities to define
binding effect in expansive terms
3. A policy statement is likely binding if its wording indicates
that the agency is not open to reexamining its position
4. McLouth Steel Products Corp. v. Thomas: notice was held
binding because, among other things, EPA refused to
entertain questions regarding use of the model
iii. Interpretive Rules
1. Did the agency intend to clarify the law or make
substantive changes in the law?
2. Hoctor v. USDA: requiring a fence to be 8 feet high is
legislative because it is “arbitrary” i.e. discretionary
3. National Family Planning: it is a maxim of administrative
law that: if a second rule repudiates or is irreconcilable with
a prior legislative rule, the second rule must be an
amendment of the first; and, of course, an amendment to a
legislative rule must itself be legislative
4. Mortgage Bankers: a purported interpretive rule is invalid
if it is inconsistent with a prior interpretation of a
legislative rule
2. Petitions
a. APA § 553(e) authorized members of the public to petition an agency for
the issuance, amendment or repeal of a rule
b. Massachusetts v. EPA
i. Judicial review of an agency’s refuse to commence a rulemaking
proceeding is available but extremely limited
ii. The use of the word judgment in the statute is not a roving license
to ignore the statutory text; it is but a direction to exercise
discretion within defined statutory limits
iii. That EPA would prefer not to regulate greenhouse gases because
of some residual uncertainty is irrelevant
1. EPA must give reasons for action or inaction in the statute
c. NRDC v. SEC: an agency’s special expertise is the reason for deferential
review of refusal to commence rulemaking
d. In re International Chemical Workers Union: factors to determine
whether an agency’s delay was unreasonable
i. The court should ascertain the length of time that has elapsed since
the agency came under a legal duty to act
ii. The reasonableness of the delay must be judged in the context of
the statute which authorizes the agency’s action
iii. The court must examine the consequences of the agency’s delay
iv. The court should give due consideration in the balance to any plea
of administrative error, administrative convenience, practical
difficulty in carrying out a legislative mandate or need to prioritize
in the face of limited resources

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3. Waivers
a. The court found that the FCC erred by not giving adequate reasons for
denying and refusing to hold a hearing on appellant’s request for waiver of
certain rules. WAIT Radio v. FCC
i. That an agency make promulgate rules does not relieve it of an
obligation to seek out the “public interest” in particular,
individualized cases
ii. Allegations, stated with clarity and accompanied by supporting
data, are not subject to perfunctory treatment, but must be given a
“hard look”
iii. There is a line between tolerably terse and intolerably mute
iv. The agency may not act out of unbridled discretion or whim in
granting waivers any more than in any other aspect of its
regulatory function
1. Waivers are not a stepchild but an important part of the
family
b. Waiver do not have to be available for every significant rule
c. Standard of review = abuse of discretion

Chapter 7: Political Control of Agencies

1. Nondelegation
a. The nondelegation doctrine maintains that Congress’ power to delegate its
legislative authority is limited
i. The court has been unwilling to invalidate a statute on the basis of
unlawful delegation
1. Schechter and Panama are the two exceptions
b. A plurality overturned the benzene standard, holding that OSHA must
find, before promulgating a standard, that it is necessary and appropriate
to remedy a significant risk of material health impairment. Industrial
Union Department, AFL-CIO v. American Petroleum Institute
i. To hold otherwise, the statute would make such a “sweeping
delegation of legislative power” that it might be unconstitutional
ii. Rehnquist concurrence: provision standing alone would violate
nondelegation doctrine
1. Doctrine servers three purposes
a. Ensures important choices of social policy are made
by Congress
b. Ensures Congress provides an intelligent principle
to guide delegation
c. Allows courts to test against ascertainable standards
2. Congress simply avoided making the hard choice
c. The court narrowed a statute that seems constitutionally doubtful.
Whitman v. American Trucking Ass’ns, Inc.

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i. Congress does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions – it does not, one
might say, hide elephant in mouseholes
d. Thygesen v. Callahan (Ill.)
i. A legislative delegation is valid if it sufficiently identifies:
1. The persons and activities potentially subject to regulations
2. The harm sought to be prevented
3. The general means intended to be available to the
administrator to prevent the identified harm
2. Legislative Controls
a. The Legislative Veto
i. The court held that the legislative veto was unconstitutional.
Immigration and Naturalization Service v. Chadha
1. Violated requirements that President approve laws and
bicameral nature of Congress
2. Congress must abide by its delegation of authority until that
delegation is legislatively altered or revoked
ii. Court apparently wanted Chadha to apply in both adjudication and
rulemaking situations
iii. Metropolitan Washington Airports Authority: a board composed of
members of Congress exercising legislative authority is
unconstitutional
b. Other Legislative Controls
i. Oversight committees
ii. Investigations and hearings
iii. Funding measures
3. Executive Controls
a. Appointment Power (Federal)
i. Provisions that vest in a commission (composed of 6 voting
members appointed by the Senate (2), House (2) and President (2))
primary responsibility for conducting civil litigation for
vindicating public rights are unconstitutional. Buckley v. Valeo
1. Such functions may be discharged only be persons who are
officers of the United States within the language of Art. II,
Sec, 2, cl. 2.
2. No more may Congress vest in itself, or its officers, the
authority to appoint officers of the United States when the
Appointments Clause by clear implication prohibits it from
doing so
3. President appoints principal officers; inferior officers
may be appointed by the President, courts or heads of
departments
ii. Principal officers: does not appear in the Constitution but signifies
officers higher than inferior officer
1. Morrison v. Olson: independent counsel is an inferior
officer

15
2. Edmond v. United States: whether one is an inferior officer
depends on whether he has a superior
3. United States v. Libby: Morrison could still be good law
b. Removal Power and the Independent Agency
i. The commissioner of the FTC could not be removed without
following the statutory provisions (good cause). Humphrey’s
Executor v. United States
1. Illimitable power of removal is not possessed by the
President in respect to officers who are tasked with the
enforcement of no policy except the policy of the law
2. Fostered the development of “independent agencies”
ii. Wiener v. United States: agency created to adjudicate the law is
independent
iii. Morrison v. Olson
1. Whether the Constitution allows Congress to impose a
good cause type restriction on the President’s power to
remove an official cannot be made to turn on whether or
not that official is classified as purely executive
2. The real question is whether the removal restriction are
of such a nature that they impede the President’s ability
to perform his constitutional duty, and the functions of
the officials in question must be analyzed in this light
3. No reason special counsel must be terminable at will as a
matter of constitutional law
4. Good cause limitation is essential to the necessary
independence of the office
5. Does not pose a danger of congressional usurpation of
Executive Branch functions
iv. Bowsher v. Synar: Congress may not retain for itself the power to
remove officials engaged in administrative functions
v. Free Enterprise Fund v. PCAOB: dual for cause limitations
contravenes the Constitution’s separation of powers
c. Executive Oversight
i. See Other Outline
ii. Youngstown: zone of twilight in which the President and Congress
may have concurrent authority, or in which the distribution is
uncertain; resolve conflicts in favor on Congress

Chapter 9: The Scope of Judicial Review

1. Issues of Basic Fact


a. Universal Camera Corp. v. NLRB
i. Substantial evidence = enough to justify, if the trial were to a jury,
a refusal to direct a verdict when the conclusion sought to be
drawn from it is one of fact for the jury

16
ii. The substantiality of evidence must take into account whatever in
the record fairly detracts from its weight
iii. An examiner’s record is part of the record  subject to substantial
evidence review
b. Elliot v. Commodity Futures Trading Comm’n: dissent suggests who the
agency decisionmakers are could influence weight
c. Under Universal Camera, if agency heads reverse an ALJ’s credibility
findings, this disagreement is treated by courts reviewing the agency
heads’ decision under the substantial evidence test as a minus factor
d. Dickinson v. Zurko: the difference between the clearly erroneous and
substantial evidence tests is subtle
2. Issues of Law
a. Preliminary Issues
i. Connecticut State Medical Society v. Connecticut Board of
Examiners in Podiatry
1. Ordinarily, the court gives great deference to the
construction of a statute by the agency charged with its
enforcement
2. Ordinarily, the construction and interpretation of a statute is
a question of law for the courts where the administrative
decision is not entitled to any special deference,
particularly where, as here, the statute has not previously
been subjected to judicial scrutiny or time-tested agency
interpretations
a. The court found that it was not the intention of the
legislature to empower the board to define the scope
of podiatry practice
b. Issues of Law – the Chevron Doctrine
i. Chevron U.S.A. Inc. v. NRDC
1. When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two
questions:
a. Whether Congress has directly spoken to the precise
question at issue. If the intent on Congress is clear,
that is the end of the matter; must give effect to the
unambiguously expressed intent of Congress
b. If the statute is silent or ambiguous with respect to
the specific issue, the question for the court is
whether the agency’s answer is based on a
permissible construction of the statute.
i. Need not be the only permissible answer or
the one the court would have reached if
asked
2. The agency’s filling of the gaps in statutes is given
controlling weight unless they are arbitrary, capricious or
manifestly contrary to the statute

17
3. The court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the administrator of an agency
4. An initial agency interpretation is not instantly carved in
stone
5. It is appropriate for agencies to make policy choices –
resolving competing interests
ii. Applying Step 1
1. MCI Telecomms. Corp. v. AT&T: failed step 1 because
modify means to change moderately
iii. Applying Step 2: overlaps with the arbitrary and capricious test of
the APA to a considerable degree
iv. Brand X: a court’s prior judicial construction of a statute trumps an
agency construction otherwise entitled to Chevron deference only
if the prior court decision holds that its construction follows from
the unambiguous terms of the statute and thus leaves no room for
agency discretion
c. Statutory Interpretation and Chevron
i. Congress has clearly precluded the FDA from asserting jurisdiction
to regulate tobacco products. Such authority is inconsistent with
the intent that Congress has expressed in the FDCA’s overall
regulatory scheme and in the tobacco-specific legislation that is
has enacted subsequent to the FDCA. FDA v. Brown & Williams
Tobacco Corp.
1. Chevron requires examination in context and the meaning
one statute may be affected by other Acts; also use
common sense
2. In extraordinary cases, there may be reason to hesitate
before concluding that Congress has intended such an
implicit delegation
ii. Canons
1. Constitutional avoidance
2. Retroactivity
3. Lenity
iii. Jurisdictional questions are no different and are analyzed under the
Chevron framework. City of Arlington v. FCC
d. Exceptional Cases (“Step Zero”)
i. Step Zero = whether or not a court should apply Chevron to a
given agency interpretation
ii. Skidmore v. Swift & Co.
1. Less formally developed pronouncements “constitute a
body of experience and informed judgment to which courts
and litigants may properly resort for guidance” (such as
policy statements or interpretive rules)
2. The weight given to these pronouncements in a particular
case will depend upon the thoroughness evident in its

18
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade
iii. Christensen v. Harris County
1. Interpretations … which lack the power of law do not
warrant Chevron-style deference
2. Instead, they are entitled with respect but only to the extent
that the interpretations have the power to persuade
3. Auer deference (an agency’s interpretation of its own
regulation is entitled to deference) is warranted only when
the language of the regulation is ambiguous
iv. United States v. Mead Corp.
1. Administrative implementation of a particular statutory
provision qualifies for Chevron deference when it appears
that Congress delegated authority to the agency generally to
make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the
exercise of that authority
a. Relatively formal procedure implicates force of law
but want is not determinative
2. Chevron did not eliminate Skidmore – the court generally
owes deference but the extent depends on contextual
factors
v. Different conception of Skidmore in Christensen versus Mead
e. Interpretation of Regulations
i. Christopher v. SmithKline Beecham Corp.
1. Auer deference does not apply when:
a. The agency’s interpretation is plainly erroneous or
inconsistent with the regulation
b. Reason to suspect the regulation does not reflect the
agency’s fair and considered judgment
i. Post hoc rationalizations
ii. Conflicts
2. Giving Auer deference in this case would result in unfair
surprise; the agency got Skidmore instead
ii. Decker v. Nw. Envtl. Def. Ctr.: Auer is under attack; separation of
powers concern
3. Issues of Discretion
a. Basic Concepts
i. Arbitrary and capricious = abuse of discretion
1. Used in reviewing the discretionary element of all kinds of
formal and informal agency actions, including both
adjudicative and rulemaking proceedings
ii. Citizens to Preserve Overton Park, Inc. v. Volpe
1. Substantial evidence applies only to formal rulemaking or
formal adjudication

19
2. Application of abuse of discretion test – substantial,
seeking inquiry
a. Whether the secretary acted within the scope of his
authority
b. Whether the decision was based on a consideration
of the relevant factors and whether there has been a
clear error of judgment
iii. Butz v. Glover Livestock Comm’n Co.: the fashioning of an
appropriate and reasonable remedy is for the secretary, not the
court
b. Hard Look Review
i. Rescission of a rule is judged by the arbitrary and capricious
standard. Motor Vehicle Manufacturers Ass’n v. State Farm
Mutual Automobile Ins. Co.
1. An agency changing its course by rescinding a rule is
obligated to supply a reasoned analysis for the change
beyond that which may be required when an agency does
not act in the first instance
2. Not arbitrary and capricious = rational, based on
consideration of the relevant factors and within the
scope of the authority delegated to the agency by the
statute
3. The court will uphold a decision of less than ideal clarity if
the agency’s path may be reasonably discerned
4. A rule can be rescinded based on uncertainly about its
effectiveness, but merely mentioning substantial
uncertainty is not sufficient
ii. Fox I: An agency need not demonstrate that the new policy is
better than the old; only that it is permissible under the statute,
there are good reasons for it and the agency believes it to be better
4. Fact Review in Informal Proceedings
a. Arbitrary and capricious serves a second function as a standard of review
of fact findings in proceedings to which the substantial evidence test does
not apply
b. Data Processing: arbitrary and capricious and substantial evidence both
call for reasonableness review and require the agency to must a sufficient
factual basis in the record for the result reached; difference arises in
statutes that call for specific tests
c. Baltimore Gas & Elec. Co. v. NRDC: when examining scientific
determinations the court must be at its most deferential
d. Hard look (or soft glance) has to be measured against the legal
requirements to which the agency is held (by the enabling statute and
subsequent case law)

20
Chapters 10 & 11: The Availability of Judicial Review

1. Judicial Jurisdiction
a. The APA does not itself provide for federal jurisdiction, but it provides the
ground rules for judicial review once jurisdiction is otherwise established.
Califano v. Sanders
b. §§ 701-06
2. Reviewability
a. Statutory Preclusion
i. Agency action is presumed to be reviewable but this presumption
can be rebutted
ii. Bowen v. Michigan Academy of Family Physicians
1. Strong presumption that Congress intends judicial
review of administrative action; failure to provide for
review in the statute is not evidence of intent to withhold
review
2. The fact that some acts are reviewable does not support an
implicit preclusion of others
iii. Levin’s hierarchy of relative importance of judicial review
iv. Yakus v. United States: upheld a statute that prevented a criminal
defendant from challenging the validity of the statute in his
prosecution; limited to wartime?
1. Probably. Adamo Wrecking Co. v. United States: narrow
interpretation to allow presumption of reviewability to
function without frontally challenging the statute
b. Actions “Committed to Agency Discretion”
i. APA: two kinds of agency discretion
1. That which is reviewable under § 706(2)(A) – arbitrary,
capricious…
2. That which is not reviewable at all
ii. Heckler v. Chaney
1. § 701(a)(2) – review is not to be had if the statute is
drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
discretion
2. Refusal to take enforcement action: presumption of judicial
review is not available
a. Agency knows best – complicated question
b. Does not coerce anyone by not taking enforcement
action
c. Can be rebutted where the substantive statute has
provided guidelines for the agency to follow in
exercising its enforcement powers
iii. Levin has criticized the no law to apply test
iv. “Shall” does not necessarily rebut the presumption. Sierra Club v.
Jackson

21
c. Inaction and Delay
i. Norton v. Southern Utah Wilderness Alliance
1. The reviewing court shall compel agency action unlawfully
withheld or unreasonably delayed
2. Failure to act = failure to take agency action i.e. one of the
agency actions defined in § 551(13) or their equivalents
a. Limited to a discrete action
b. Only legally required actions can be compelled
3. A claim under § 706(1) can proceed only where a plaintiff
asserts that an agency failed to take a discrete action that
it is required to take
a. General deficiencies in compliance lack the
specificity requisite for agency action
b. A court cannot enforce a general plan
ii. Rule of reason governs delay. TRAC v. FCC
3. Standing
a. Constitutional Standing
i. Federal courts must resolve Article III standing before reaching
other issues, even if they could readily dismiss on the merits to
avoid the difficult standing analysis. Steel Co.
ii. Respondents failed the injury and redressability elements of
standing. Lujan v. Defenders of Wildlife
1. Constitutional minimums of standing – burden of proof on
the plaintiff
a. Injury in fact – an invasion of a legally protected
interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or
hypothetical
i. The party seeking review himself must be
injured
ii. Clapper: “certainly impending”
b. Causal connection between the injury and the
conduct complained of
c. The injury will be redressed by a favorable
decision
i. “Better odds” not enough – National
Wrestling Coaches Ass’n
2. Procedural rights are special – but a general grievance
about government does not state an Article III case or
controversy
iii. Hunt: associational standing is satisfied if
1. One or more of its members could sue in their own right
2. The interests the association seeks to protect are germane to
the organization’s purpose
3. The participation of individual members is not required

22
iv. Sierra Club v. Morton: a historic commitment to conservation is
not enough
1. Some states permit public action
b. Zone of Interests
i. Association of Data Processing Service Orgs. (ADPSO) v. Camp
1. The question of standing is related only to whether the
dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as
capable of judicial resolution
2. Whether the interest sough 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
a. Interest may reflect aesthetic, conservational and
recreational, as well as economic, values
ii. Clarke: the zone of interests test is not especially demanding –
must be marginally related to or inconsistent with the purposes
implicit in the statute to fail
iii. Air Courier case: only case that ever flunked test
4. Timing
a. Finality
i. The complaint before administrative adjudication concludes is not
final agency action. FTC v. Standard Oil Co. of California (Socal)
1. Not a definitive ruling or regulation
2. No legal force or comparable effect [to a publication of
regulations] upon the plaintiff’s business activities
3. Responding to charges against you does not render the
charges final agency action
a. The expense and annoyance of litigation is part of
the social burden of living under government
4. The courts below confused exhaustion of remedies for
finality
ii. Bennett v. Spear: Two conditions for final:
1. First, the action must mark the consummation of the
agency’s decisionmaking process
2. Second, the action must be one by which rights or
obligations have been determined or from which legal
consequences will flow
iii. DDT cases – immediate reviewability due to imminent health
hazard by which the public would suffer irreparable injury
b. Exhaustion of Remedies
i. Portela-Gonzalez v. Secretary of the Navy
1. No one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy
has been exhausted
a. Softer edges than it appears

23
2. Three broad sets of circumstances in which the interests
of individuals weigh heavily against requiring
administrative exhaustion – McCarthy
a. Unreasonable or indefinite delay threatens to unduly
prejudice the subsequent brining of a judicial action
b. If a substantial doubt exists about whether the
agency is empowered to grant meaningful redress
c. There are clear, objectively verifiable indicia of
administrative taint
3. Futility exception cannot be a self-serving pronouncement;
pessimism does not equate to futility
ii. Applied even if question of law or jurisdiction; some states
disagree
iii. Darby v. Cisneros: APA § 704 relaxes the finality and exhaustion
of remedies requirement
iv. On the face challenge to constitutionality of statute or regulation
should not require exhaustion of administrative remedies
v. Issue exhaustion: a party must raise the very issue before every
level of the agency that it intends to raise on judicial review
1. May not apply in rulemaking
vi. Patsy v. Florida Board of Regents: exhaustion of state remedies is
not required before bring a 1983 action
c. Ripeness
i. Abbott Laboratories v. Gardner
1. The court is reluctant to apply extraordinary remedies
unless they arise in contexts ripe for judicial review
2. Ripeness inquiry – balancing test
a. The fitness of the issues for judicial determination
b. The hardship to the parties of withholding court
consideration
3. The court found:
a. Appropriate for judicial determination: purely legal
issue, no further administrative action contemplated
b. Final agency action  hardship on petitioners
i. Sensitive industry
ii. Toilet Goods Ass’n v. Gardner
1. The court found the final regulation unripe because it was
unknown how the agency would enforce it
iii. North Am. Aviation Project v. National Transp. Safety Bd.:
exception to rule that Abbott Labs balance is normal struck in favor
of immediate reviewability of legislative rules and similar
pronouncements that have legal force

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