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Administrative Law Outline

I. PROCEDURAL DUE PROCESS


A. Overview
i. 5th Amendment (applicable to federal agencies) – provides
that no person shall be deprived of life, liberty, or property,
w/o due process of law
ii. 14th Amendment – similar limitation on state action
iii. Concept  implies that official action must meet min stds of
fairness
1. Gives fed cts tool to oversee agency’s decisionmaking
procedures
iv. Threshold question: whether an adverse decision will deprive
a person of one of the protected interests
1. Life – very infrequent
2. Usually liberty or property interest
v. Next question: what process is “due” under the particular
circumstances (can vary enormously depending on context)
B. Interests Protected by Due Process
i. Traditionally – defined quite narrowly; many gov’t benefits
and grants were considered gratuities or privileges rather
than rights
ii. Goldberg (SC 1970) – Ct abandoned right-privilege
distinction, extended protections of due process to “new
property”
1. Welfare claim could not be defeated by mere assertion
that benefits were gratuities or privileges
2. Welfare program – based on system of statutory
entitlements: all applicants who met conditions
defined by legislature were entitled to receive public
assistance
3. Thus state had to afford due process safeguards (oral
hearing) before terminating benefits
iii. Roth (SC 1972) – Ct developed new method for deciding who
was entitled to due process protection
1. Loss of governmental benefit is a deprivation of
“property” only if individual has a “legit claim of
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entitlement” to benefit rather than merely a “unilateral
expectation” of it
2. No deprivation of property: state law, university rules,
contract  none gave Roth legitimate basis for
claiming that he was entitled to renewal of contract
3. No deprivation of liberty: he could still seek other jobs
iv. Property
1. Usually involve governmental benefits  Roth requires
ct to consider whether π had legit claim of entitlement
to benefit deprived
a. Claim of entitlement – does not arise from
Constitution, must rest on existing rules and
statutes or independent sources like state law
2. Perry – EE’s claim of entitlement can come from
implied contract (informal tenure system)
3. Goss – state grants all children right to attend public
schools, so cannot suspend student w/o at least
limited prior hearing
4. Castle Rock – ct held that statute that appeared to
guarantee strict enforcement of domestic violence
restraining order did not create property interest
a. Ct read statute against nation’s longstanding
tradition of police discretion, and took into acct
feasibility limitations
b. Holding prompted by concern that states would
be less likely to adopt statutes if it exposed
them to tort liability
5. Legislatively created right must be considered in
relation to procedural mechanism Congress designed
for implementation  “bitter w/the sweet” (REJECTED
by Loudermill)
6. Loudermill – substance and procedure are distinct
analyses
a. Once state creates entitlements through
substantive laws/stds, adequacy of procedures

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used to deprive ind of those entitlements
depends on federal constitutional law
b. State procedures cannot foreclose due process
inquiry
7. But: state-created procedures cannot expand federal
due process rights (create property interest), and
breach of such guarantee is not due process violation
8. Difference b/w “deprived” (deprived of something you
already have) and “denied”(something you want but
do not yet have)
a. Constitution requires due process only if person
is “deprived” of life, liberty, and property by the
state (not private company) (American Mfrs)
v. Liberty
1. Roth – “liberty” is broad and encompassing; not
merely freedom from bodily restraint
2. Ct has been reluctant to extend due process
guarantees to all dismissed gov’t EEs  they already
have other protections, i.e. unions, political
beliefs/affiliations
3. Stronger case if ER made charge against EE that might
injure his reputation
a. But only guarantees hearing to clear name, not
actionable unless ER discloses to public (Wood)
b. Stigma+ test: not loss of liberty if injury only;
must be accompanied by some alteration in π’s
legal status (Paul)
i. i.e. loss of employment (Roth)
c. Ct wants to keep reputation to state ct
providence (defam)
4. Prisoners
a. Mandatory prison rules create liberty interest,
but discretionary ones do not
b. Prison regulations do not create liberty interest
unless deprivation imposes atypical and

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significant hardship on the inmate in relation to
ordinary incidents of prison life
C. Other Threshold Issues
i. An injury to a protected interest does not qualify as a
deprivation if it was inflicted through mere negligence
ii. Only person to whom challenged order is directed to is
entitled to due process (no 3rd party claims)
iii. Procedural due process guarantees are directed primarily at
adjudicative action, rarely applicable to agency rulemaking
proceedings (Bi-Metallic)
1. Fxnal similarity b/w rulemaking and legislation – public
has no right to testify/submit evidence to Congress, so
likewise in rulemaking
2. Impossibility of granting hearing to everyone
3. Rulemaking turns on legislative facts – general
propositions that tribunal uses in formulating law or
policy (vs. adjudicative facts – those having to do with
specific parties in dispute)
iv. What about gray area b/w rulemaking and adjudication
1. Bi-metallic loses force as # of persons affected by rule
shrinks
2. When adjudicative and legislative facts merge – due
process protection more likely
D. The Process that is Due
i. Ct looks to 3 factors: (Mathews balancing test)
1. Private interest that will be affected by official action
2. Risk of an erroneous deprivation of such interest
through procedures used and probable value (if any) of
additional or substitute safeguards
3. Govt’s interest, including fxn involved and fiscal and
admin burdens that additional or substitute procedural
requirement would entail
ii. Prior notice and hearing
1. Right to prior notice
a. Due process requires notice reasonably
calculated to apprise interested parties of

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pendency of action and afford them opportunity
to present their objections
b. How much notice depends on circumstances
c. Exceptions:
i. Demonstrated need for immediate action
to protect public from serious harm (NA
Cold Storage)
ii. Serious financial risks to public or gov’t
revenues
2. Right to pre-deprivation hearing
a. Due process requires no hearing at all unless
there is a factual issue in dispute
(dangerousness not issue when statute applies
merely b/c of prior conviction)
3. Ingraham – availability of statutory or CL remedies
provides process that is due (injured student could
bring damage action under state law; prisoner could
bring claim under small claims or tort action)
a. Largely confined to situations in which state has
strong reasons not to grant pre-deprivation
hearing (undermine disciplinary authority, no
way to improve procedure)
4. Right to post-deprivation hearing (Barchi)
a. Due process requires prompt post-suspension
hearing
b. Question of how quickly agency must proceed
w/adjudication following action depends on
careful weighing of competing interests
iii. Trial-type hearings
1. Ct usually will not impose full trial-type procedures
(oral testimony, XE adverse witnesses) when there is
reasonable likelihood that less burdensome oral
proceeds will adequately protect ind’s interest
2. Decision influenced by nature of questions likely to
arise

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a. Goldberg – ct considered oral testimony and XE
b/c written submissions not enough in
evaluating credibility and veracity; educational
level of π’s impt
b. Mathews – oral hearings not necessary when
questions are straightforward or objective
(medical reports by doctors, statistical data)
c. Horowitz – academic judgments unsuited for
courtroom
iv. Right to counsel
1. APA §555(b) – person compelled to appear before an
agency is entitled to be represented by counsel
a. Does not apply to those who appear voluntarily
b. Due process does not guarantee right to legal
representation in every admin proceeding
2. Ct may find constitutional right to legal representation
unnecessary
a. Walters - upheld Congress’ objectives: have
veterans keep entire award, keep VA hearings
informal and nonadversarial
3. Appointments of counsel for those who cannot afford
to retain their own  rare in admin law
v. An impartial decisionmaker
1. Essential to an adjudication that comports with due
process
2. Disqualifying biases:
a. If agency official’s service as an advocate at an
earlier stage of the controversy or overt
comments suggest that he may have prejudged
facts at issue
b. When adj has strong incentives to decide case
on grounds other than merits, cts may find
unacceptable risk of bias
c. Personal or agency financial stake in outcome,
unless cases adjudicated by independent

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officers who have no stake in outcome, or funds
federal and not from own pocket
3. Due process does not require strict separation of fxns
b/w prosecuting and decisionmaking officials
a. Mere exposure to evidence presented in
nonadversary investigative procedures is
insufficient to overcome impartiality
vi. Findings and conclusions
1. APA §557(c)(A) – in formal adjudication governed by
APA, agency’s decision must include statement of
findings and conclusions and the reasons or basis
therefore, on all the material issues of fact, law, or
discretion presented on the record
2. APA §553(c) – in informal rulemaking, agency
required to incorporate into rules adopted a concise
general statement of their basis and purpose; impt to:
a. Fairness of process
b. Quality of decision
c. Discipline – consider evidence and reasoning
carefully
d. Easier for review, either by higher admin or
reviewing ct
3. Written statement not always necessary – i.e. when
prescribed due process hearing is extremely informal

II. ADJUDICATION
A. Overview
i. Formal adjudications – evidentiary hearings; trial-type
hearings; typically involve proceedings conducted by
independent ALJ
1. APA §§554, 556, 557 – establish minimum
procedures
2. APA §554(a) – APA’s procedural requirements apply
only when required by statute (outside APA itself) to
be determined on the record after opportunity for an
agency hearing

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a. Wong Yang Sung – APA adjudication procedures
come into play when evidentiary hearing is
required by Constitution rather than by statute
ii. When legislation is unclear as to whether it calls for APA
adjudication
1. Johnson – rejected presumption that any statute that
prescribes a “hearing” prior to issuance of an
adjudicative order triggers APA formal adjudication
procedures (Seacoast)
a. At odds w/usual policy of deferring to agency’s
interpretations of their own enabling legislation
iii. Informal adjudications – conducted outside APA framework
1. Must always comply with requirements of procedural
due process
2. May be governed by special statutory procedures or
agency’s own regulations, but procedures are
essentially discretionary and not subject to ct review
3. Generally conducted by presiding officers or admin
judges (NOT ALJ)
iv. Overview of APA procedural models
Adjudication Rulemaking
§553 [notice and
Informal --
comment]
Triggered by Triggered by
§554(a): §553(c):

§554 [notice to
parties, separation
of fxns]
§556 [trial-type
Formal
§556 [trial-type hearing w/ALJ,
hearing w/ALJ, exclusive record]
exclusive record]
§557 [formal
§557 [formal findings, ban ex
findings, ban ex parte contacts]
parte contacts]

B. Institutional Decision
i. Admin decisionmaking process = institutional decision
(product of bureaucracy rather than single person/group)

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1. Expertise needed to decide case may be spread
among several divisions w/in agency  fairness
concerns
a. Morgan II – although statute gave private party
right to “full hearing” required personal decision
by agency head, he/she not required to be
physically present at taking of testimony
b. Ct should usually not probe beneath record to
uncover flaws in process by which agency
reached its decision
c. Hard to show that admin failed to give sufficient
personal attention to decision
2. Sub-delegation problem – generally resolved by
recognizing broad power in top admin to assign
responsibilities to subordinates, and statutes now
contain broad grants of authority to subdelegate

ii. Presiding officer


1. ALJ’s have several protections (after APA passed in
1946)
a. Appointed through professional merit selection
system
b. May not be assigned to perform duties
inconsistent w/their judicial fxns
c. Tenured EEs, removed or disciplined only for
good cause
2. Formal trial-type hearing – ALJs have 2 fxns:
a. Conduct hearing
i. APA §556(b) – req ALJ preside at taking
of evidence unless 1+ agency heads
personally conduct hearing
b. Render initial or recommended decision – APA
§557(b)
i. Initial decision – becomes final agency
action unless reviewed by appeal
board/head

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ii. Recommended decision – must be
considered and acted upon by agency
leadership before takes effect
c. APA makes clear that agency heads are not
required to defer to ALJ’s factfinding – APA
§557(b)
iii. Ex parte contacts – communications from an interested party
to a decisionmaking official that takes place outside hearing
and off the record
1. APA §556(e) – transcript of testimony and exhibits,
together with all papers and requests filed in
proceeding, constitutes exclusive record for decision 
for fairness reasons
2. Why it is a problem  bulk of agency decisions are
made through informal action or public proceedings
(notice-and-comment rulemaking) where ex parte
contacts are permissible and desirable
3. APA §557(d)(1) – prohibits any interested person
outside the agency from making/knowingly causing
any ex parte comm relevant to merits of the
proceeding to any decisionmaking official
a. When contact does occur – must be placed on
public record (i.e. oral comm – summarizing
memo must be filed)
b. Outside party who made/caused contact can be
required to show why his claim should not be
dismissed
c. Ultimately, decision to impose sanctions is
matter of judicial discretion (PATCO)
4. Ex parte contacts can lead to constraints on political
oversight of agency decisionmaking (Pillsbury)
a. Congressional pressure had so interfered
w/agency’s process of decision that respondent
did not get fair hearing
5. Scope limited – does not apply in early stages of admin
investigation and to informal adjudications

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iv. Separation of fxns
1. Agency staff are often assigned to act as advocates in
trial-type hearings, both supporting complaint and
against respondent  problem of whether they may
consult w/decisionmakers outside the record of the
proceeding
a. Fairness issues, but valid policy reasons for
communications (technical expertise is usually
found at staff levels of agency)
2. APA §554(d) – defines a limited class of agency staff
who are specifically prohibited from consulting
w/decisionmakers
a. Any EE who is engaged in performance of
investigative or prosecuting fxns may not:
i. Participate in decision, or
ii. Advise decisionmakers in that case or any
factually related case
b. Prosecuting staff can only provide input as
witness or counsel in public proceeding
c. Separation of fxns requirements do not apply to
initial licensing or rate cases  proceedings do
not have accusatory or adversary nature
d. Agency heads are exempted from separation of
fxns requirement, although sometimes Congress
enacts statutes that require strict separation of
prosecuting and deciding fxns in specific
agencies (i.e. NLRB)
3. APA §556(e) – transcript, exhibits, and other formal
filings constitute the exclusive record for decision
a. Decisionmakers are not free to obtain
additional, non-record evidence from non-
prosecuting agency EEs
4. Withrow – Ct rejected idea that combo of judging and
investigating fxns is a denial of due process

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a. Due process claim fails unless protesting party
can demonstrate some particular bias beyond
mere combo
C. Bias and Prejudgment
i. Due process + APA §556(b)  requires impartiality of
decisionmaker
ii. Actions taken and statements made during course of non-
adjudicative duties may create appearance that particular
case has been prejudged
1. But: most agencies have statutory mandates and
implement important social policies  “built-in bias”
iii. Law has demonstrated awareness that agency decisionmaker
should be “open minded” but not “empty minded”
1. An admin who has taken public positions on
controversial matters of law or policy  generally not
disqualified from deciding cases that raise those issues
(Morgan IV)
2. Rule of necessity – an adjudicator should not be
disqualified if case could not be heard otherwise
(Cement Institute)
iv. Cts have taken stricter position in cases where regulatory
commissioner has used speech/interview to discuss facts that
are at issue in pending case
1. Test: whether disinterested observer would conclude
that admin has in some measure prejudged facts of
the case
2. Cinderella II – ct ordered disqualification b/c
chairman’s speeches mentioned companies by name
and suggested that he already considered them
lawbreakers
3. Factual press release (i.e. describing filing of
complaint)  okay
v. Circumstantial evidence – adjudicator who is personally
familiar w/evidence b/c of previous capacity as investigator
or advocate  disqualified

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vi. Financial or personal stake in decision (however small) 
disqualification based on due process, statutes, executive
orders, and agency regulations prohibiting conflicts of
interest
D. Findings, Conclusions, and Reasons
i. APA §557(c) – requires that parties be given an opportunity
to submit proposed findings and conclusions, or exceptions
to the proposed decision before agency renders
recommended/initial/final decision
1. All decisions  “shall include findings and conclusions,
and the reasons or basis thereof, on all material issues
of act, law, or discretion presented on the record”
ii. Reasons:
1. Agency’s reasoning ensures admin accountability to
decisions
2. Interested persons have better guidance to agency’s
current policy
3. Discipline; meaningful judicial review
E. Legislative Rulemaking (limiting issues to which hearing rights
apply)
i. When agencies issue legislative rules ( = procedural rules),
private parties no longer have right to be heard at agency
level on the issues addressed in the rule (unless rule is
revoked or invalidated by ct)
1. Even where statute calls for individualized
determinations, an agency may use rulemaking to
resolve some of the relevant issues (Storer, Texaco)
UNLESS Congress clearly expresses an intent to
withhold that authority
ii. Campbell – Ct concluded that although the statute states that
disability determination is to be made on basis of evidence
adduced at hearing, this provision does not bar Secretary
from relying on rulemaking to resolve certain classes of
issues (reference guidelines)
1. Endorsed rulemaking only w/respect to issues that do
not require case-by-case consideration

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iii. Bowen, Sullivan – legislative rules must be read within
substantive statutes so as to not preclude benefits to
claimants who have a statutory right to receive them

III. RULEMAKING
A. Overview
i. Advantages of rulemaking:
1. Can be more efficient than case-by-case adjudication
b/c can resolve multiplicity of issues in single
proceeding
2. Single clear rule can produce rapid and uniform
compliance among the affected firms or individuals
3. Can provide regulated persons with more precise
notice of sanctioned conduct and promotes equality of
treatment among similarly situated persons
4. Can put all affected parties on notice and give them
opportunity to be heard before passing regulations
ii. However, promulgating rule can be more costly to agency in
time, effort, and good will
iii. Major impetus – regulatory statues enacted during 1970s
often contained express grants of rulemaking authority
iv. Cts also encouraged use of rulemaking – agency’s power to
make rules should be interpreted liberally in light of
numerous benefits of administrative rulemaking (Nat’l
Petroleum Refiners)
B. Types of Admin Rules
i. APA §551(4) – A rule is “the whole or a part of an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy” or to establish rule of practice
1. “particular applicability”  means that they apply to
general class of persons or situations
2. “future effect”  usually concern future stds of
conduct
a. APA language – is definition, not an enabling
provision, so does not bar retroactive rules

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b. Georgetown – Ct held that statute will not be
construed to authorize an agency to issue
retroactive legislative rules unless that power is
conveyed in express terms
3. Generally:
a. Agency action that is addressed to named
parties  adj
b. Agency action that is addressed to category of
persons or situations  rule, UNLESS it is
apparent that the rule will affect only a few
identifiable persons, where due process may
require agency to afford procedural safeguards
resembling those available in adjudication (VT
Yankee)
4. APA §551(6) – any other agency action is an
adjudicative “order”
ii. Binding and nonbinding rules
1. Legislative rule – has force and effect of law, and is
always rooted in a grant of quasi-legislative power by
Congress
a. Binding on private parties and gov’t, unless rule
is overturned by a ct
2. APA §553(b)(A) – generally requires issuance of rules
be proceeded by a public procedure, usually a notice-
and-comment process
a. Exemptions: interpretive rules, general
statements of policy (guidance docs), and rules
of agency org, procedure, and practice  NOT
legislative rules
3. General statement of policy (guidance docs) – states
how agency intends to use its lawmaking power in
future, but does not attempt to bind anyone
immediately
a. Exempt from public procedure b/c do not in
themselves alter anyone’s rights

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b. Cts will ask whether document is being used in a
manner that makes it binding as a practical
matter
4. Interpretive rule – not intended to alter legal rights,
but to state the agency’s view of what existing law
already requires
a. Cts often examine the substance of an agency’s
interpretation in relation to the provision that it
purports to interpret (which may be statute or
prior legislative rule)
b. If statement expresses a position that does not
seem to follow directly from the language or
purposes of the provision, a ct is more likely to
infer that agency is trying to establish a new
legal obligation (Hoctor)
i. Makes compliance w/APA procedure
essential
c. A pronouncement that effectively amends a
legislative rule must itself be legislative
C. Rulemaking Procedures
i. Exempted rulemaking  APA §553 (authorize agencies to
issue final rules w/o any public participation)
1. Interpretive rules (see above)
2. Policy statements (see above)
3. Subject matter exceptions  §553(a) completely
exempts from public notice and opportunity to
comment on all rulemaking proceedings relating to:
a. Military or foreign affairs fxn
b. Agency management or personnel
c. Public property, loans, grants benefits, contracts
4. Procedural rules exemption  §553(b)(A)
a. Reflects congressional judgment that such rules,
b/c they do not directly guide public conduct, do
not merit the admin burdens of public input
proceedings
b. They can be legislative in character

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5. When notice and public procedure are impracticable,
unnecessary, or contrary to the public interest 
§553(b)(3)(B)
a. “Impracticable and contrary to public interest” –
apply when rule is urgent, or a delay in its
issuance would frustrate the rule’s purpose
i. Jifry – upheld FAA’s summary adoption of
post-9/11 rule authorizing immediate
revocation of alien pilot’s flight privileges
if TSA determines that pilot is security
threat
b. “Unnecessary” – applies when subject matter is
so routine or trivial that value of public
participation is negligible
c. To invoke, agency must:
i. Make a “good cause” finding, and
ii. Incorporate in final rule a brief statement
of its reasons for avoiding public
participation
6. Interim final rules – agency provides an opportunity for
post-promulgation comment after issuance of rules as
impracticable or contrary to public interest under the
“good cause” exception
7. Direct final rulemaking – agency adopts rule w/o prior
notice and comment but announces that it will
withdraw the rule if anyone files an adverse comment
w/in a short stated period thereafter
ii. Informal/notice-and-comment rulemaking  APA §553
1. In absence of directives to the contrary in an agency’s
enabling legislation, APA’s informal rulemaking
procedures will apply whenever agency issues
substantive rules
2. Consists of only 3 procedural requirements:
a. (1) Agency must give prior notice – publication
of an item in Federal Register

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i. Notice must contain: either terms or
substance of proposed rule or description
of subjects and issues involved; reference
to legal authority; and info about
opportunities for public participation
(553(b))
b. (2) Agency must give interested persons an
opportunity to participate through submission of
written comments containing data, views, or
arguments (553(c))
c. (3) After agency has considered public
comments, it must issue w/its final rules a
concise general statement of basis and purpose
iii. Formal rulemaking  APA §553(c)
1. Exception to general principle that admin rulemaking
requires at most notice-and-comment process
2. When rules are required by statute to be made on
record after opportunity for agency hearing, agency
must follow §556 and 557 (afford most of the
procedures required in formal adjudication)
a. Must conduct trial-type hearing and provide
interested persons w/opportunity to testify and
XE adverse witnesses before issuing a rule
3. FL East Coast – when statute is ambiguous w/respect
to whether Congress intended agency to use formal or
informal rulemaking (“may, after hearing”), SC held
that in order to trigger formal rulemaking reqs, a clear
expression of congressional intent was necessary
a. Otherwise, presumption of informal rulemaking
4. Even when statute does require formal rulemaking,
APA permits some departures from formal adj
procedures:
a. Strict separation of fxns requirement of §554(d)
does not apply  decisionmakers are free to
consult w/staff experts throughout the agency

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b. Agency may substitute written submissions for
oral direct testimony  §556(d)
c. Agency may forego ALJ’s initial or recommended
decision  §557(b)
d. However, §557(d) ban on ex parte contacts
w/outsiders DOES apply

iv. Hybrid Rulemaking - judicially imposed participation rights


1. Problems with:
a. Informal RM – simple and efficient, but gives
interested persons few rights to know/contest
basis of proposed rule
b. Formal RM – abundant opportunities to
participate and challenge proposal, but at cost
of near paralysis of agency
2. Solution  hybrid RM – intermediate procedural
models that permit effective public participation in RM
while avoiding excesses of trial procedure (essentially
based on judicial CL)
3. Hybrid RM requirements generally fell into 2 broad
categories:
a. Disclosure of data on which proposed rule
rested
i. Nova Scotia – ct found APA violation in
FDA’s failure to make a key scientific
study available to potential commenters
 failure to disclose basic data relied on
is akin to rejecting comments altogether
b. Remand w/instructions that agency allow XE on
particular issues, even though proceeding was
generally governed by APA’s informal
rulemaking provisions
i. Mobil Oil – ct held that FPC had to provide
evidentiary hearings on some contested
issues (in setting rates to be charged by
pipelines transporting certain kinds of H-C
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products) b/c statute provided that cts
should review rules using substantial
evidence test (std of review of formal
proceedings)
4. VT Yankee – halted development of hybrid RM
a. Ct said that, except in extremely rare
circumstances, cts may not force agencies to
utilize RM procedures beyond those prescribed
in APA or other statutory/const provisions
b. Not province of judiciary to alter legislative
judgment (APA)
c. Hybrid RM reqs would impose costs on agencies,
and if cts were free to devise procedural reqs on
ad hoc basis, judicial review would be
unpredictable and agencies would gravitate
towards using more adjudicative procedures
5. Chocolate Mfrs. – W/in APA boundaries, cts have held
that agency violated its notice obligations under
§553(b) b/c it promulgated final rule that was not a
logical outgrowth of the proposed rule on which it
solicited comments
6. Cts also engage in rigorous review of substance of
agency RM activities
a. “Hard look” review (State Farm) – demands that
agency build record in support of rule and
respond to significant comments made by
participants in RM proceeding
b. But: agency has wide latitude to determine best
way to assemble that record
v. Ex parte contacts - Balance struck on side of admin flexibility
1. Sangamon – ex parte contact restricted in proceeding
that was fxnally similar to comparative licensing
adjudication among conflicting private claims to
valuable privilege
2. HBO – FCC rule set aside on ex parte contact grounds
b/c ct found that it would be intolerable/unfair if there

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were one RM record for insiders and another for
general public
a. Ct also reasoned that nonrecord
communications would undermine effectiveness
of judicial review b/c reviewing judges would not
have access to all materials considered by the
agency
3. Sierra Club – general policymaking of agencies
depends on openness, accessibility, and amenability of
officials to needs and ideas of public
a. Ct discounted risk that agency might be
influenced by undisclosed info b/c underlying
EPA statute required rule to be justified on basis
of publicly available admin record
b. Statute required agency to put any written
communication having central relevance to rule
on public record so other participants have
opportunity to respond  ct stated that oral
communication should be treated the same way
vi. Separation of fxns
1. Cts lenient in permitting agency heads to consult
freely w/their staff
2. United Steelworkers – APA did not bar staff advocate
from advising decisionmaker in setting final rule, and
VT Yankee militated against judicial effort to impose
additional procedural reqs in RM
a. No evidence that agency had relied on
undisclosed facts or legal argument supplied by
consultants
vii. Administrative bias
1. In RM, test for disqualification:
a. NOT whether decisionmaker appears to have
prejudged any fact issue (test in adjudication)
b. Should be whether clear and convincing
evidence shows that decisionmaker has an
“unalterably closed mind” on pending matters

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2. Nat’l Advertisers – ct concluded that FTC chairman
should not be disqualified from participating in RM
proceeding, even though his statements and written
letters indicated that he strongly favored some
regulatory action
a. Agency heads are encouraged to speak their
mind on issues involved in pending RM
proceedings so as to engage in direct candid
dialogue w/affected interest groups
D. Executive oversight (see infra section)
i. Managerial activity of executive branch has increased
ii. Formal oversight fxn – Office of Info and Reg Affairs (OIRA)
1. Engages in systematic scrutiny of proposed
“significant” rules to determine whether cost-justified
and consistent w/admin policy
iii. Sierra Club – ct defended White House participation in RM
1. Key executive policymakers cannot be isolated from
President, even in meetings not disclosed on record
2. But: disclosure of presidential contacts might be
essential if discussion brought impt new factual info to
agency’s attention
E. Required Rulemaking
i. Chenery (II) principle – choice b/w proceeding by general rule
or individual ad hoc litigation is one that lies primarily in
informed discretion of agency
ii. Agency may have several reasons to proceed through
adjudication:
1. May feel need to consider policy first in concrete fact
situation
2. May sense issues are too complex or not ripe enough
for across-the-board treatment
3. May not have thought new policy was needed until
final stage of adjudication where cost and delay of
proceeding becomes apparent
iii. Wymon-Gordon – Ct held that agency may develop new
policies through adjudication, so long as each person to

22
whom those policies are later applied is given individual right
to be heard on question of whether Board should modify or
abandon its case-law “rule”
iv. Bell Aerospace – although company argued that significant
policy change had to be made in rulemaking rather than ind
adj, Ct held that Board’s preference for adjudication
deserved “great weight” (reaffirming Chenery)
1. Result may have been different if company had relied
to its detriment on prior Board policy, but different
result would probably not be a demand for RM
2. Unfair retroactivity – usually held void as abuse of
discretion
v. Ruiz – BIA had developed internal policy of denying
assistance to claimants who lived outside of reservations, but
never communicated policy to public
1. Ct held that policy was reasonable response to
limitations of funding, but BIA had to issue valid
legislative rule to ensure that apps for statutory
benefits will be handled in consistent and rational
fashion and avoid reality/appearance of arbitrary
denial of benefits
F. Rulemaking Petitions
i. APA §553(e) – authorize members of the public to petition
an agency for issuance, amendment, or repeal of a rule
1. Purposes of examining the status quo; bringing
agency’s attention to situations requiring prompt
action; supplying public input when agency has
adopted rule w/o advanced notice and comment
ii. Denial of rulemaking petition
1. §553(e) – does not require statement
2. §555(e) – requires brief statement of grounds for
denial of any application/petition files w/agency
iii. Mass. v. EPA – Ct overturned EPA’s decision not to engage in
rulemaking, stating that EPA must ground its reasons for
action/inaction on statute

23
1. Ordinary, agency refusal to initiate enforcement
proceedings is not subject to judicial review (Chaney)
a. But: does not apply to agency denials of RM
petitions; review is extremely limited and highly
deferential
2. Decision was arbitrary and capricious b/c EPA offered
no reasoned explanation for its refusal to decide on
specific issues
G. Waivers of Rules
i. Generally, opinions endorse waivers as necessary to correct
rigidity of rules b/c they take into acct considerations of
hardship, equity, and more effective implementation of
overall policy
1. However, less visible so triggers concerns about
agency acctability
ii. WAIT Radio – Commission erred by not giving adequate
reasons for denying and refusing to hold a hearing on
appellant’s request for waiver

IV. POLITICAL CONTROLS


A. Nondelegation
i. Nondelegation doctrine – Constitution limits Congress’s
ability to confer power on agencies
1. Based on separation of powers and Art. I, §1
2. Modern version – to be permissible, delegation must
contain an intelligible principle to which agency must
conform (Hampton)
ii. Historically, SC only twice held statutes unconstitutional
under nondelegation doctrine for being overly broad
1. Panama Refining (1935) – SC invalidated statute on
“hot oil” b/c it gave President no guidance as to
circumstances under which he should impose the
prohibition
2. Schechter Poultry (1935) – SC invalidated statute that
empowered Pres to adopt “codes of fair competition”
for any industry during the Great Depression due to

24
lack of clear policy directive in legislation and
procedural deficiencies (no requirement for trial-type
hearings, notice/right to participate, opportunity for
judicial review)
iii. Modern nondelegation controversies
1. Benzene case – statute directed Secretary of Labor to
issue rules requiring ERs to protect their EEs “to the
extent feasible” from harm due to toxic substances
a. 4 justices believed that Secretary did not make
all of findings required by statute
b. Rehnquist – would have held that statute
contained an unconstitutional delegation
c. Resolving fundamental, politically divisive policy
issues is essence of legislative authority
2. American Trucking – CAA directed agency to set air
quality stds at level that is “requisite to protect public
health w/adequate margin of safety”
a. SC dismissed idea that an agency’s own stds
can cure an unconstitutional delegation
b. Determining meaning of “requisite” was w/in
scope of agency’s discretion
iv. Explanations for continued leniency of broad delegations
1. Cts believe that broad delegations are desirability b/c
they make max use of flexibility of admin process as
means of giving incumbent admin latitude to
implement President’s electoral mandate
2. Cts may believe that they cannot devise workable test
with which to implement nondelegation doctrine
3. Cts use alternate methods to prevent broad grants of
power from becoming instrument of admin oppression
B. Legislative Controls (Congress)
i. Formal action
1. Legislation – Congress can always revoke or narrow
authority it has granted through subsequent legislation
2. Statutory directive – requires agencies to change their
traditional ways of making decisions, either by using

25
different procedures or by taking acct of new values
and interests
a. i.e. considering environmental impact; economic
effect of regulations on small businesses
3. Legislative veto – directed agencies to transmit final
admin rules to Congress for review before they
became effective
a. Vote of 2 chambers, or sometimes 1 (or even
committee) would be enough to kill rule
b. Chadha – SC held that “1-house veto” violated
Art I, §7 of Constitution (no legislation can be
valid unless passed by both houses and signed
by President)
i. Veto presumed to be exercise of
legislative power, so Art I requirements
applied, and veto’s legislative purpose
and effect were clear b/c it was intended
to have force of law and affect C’s legal
rights
ii. Cons: formalistic, not evident that Art I
applicable to congressional device
intended to constrain executive branch’s
use of delegated authority
iii. Pros: Ct motivated by fxnal concerns,
abbreviated procedure and neg charac of
vote seemed to encourage Congress to
override well-considered agency decisions
thoughtlessly or based on lobbyists’
influence (rather than deliberation)
c. 1996 – Congressional Review Act  broad
scheme for legislative review of agency rules
i. Requires agencies to submit all newly
issued rules to Congress before they can
take effect, and Congress has option of
using expedited procedures to adopt joint
resolution to disapprove rule

26
4. Agency funding – 2 required stages for congressional
approval:
a. (1) There must be legislative authorization for
appropriations (usually contained in basic
delegation of power to agency, may have time
limit)
i. Substantive policy oversight
b. (2) Controls imposed on annual appropriations
process (more common)
i. Agencies submit yearly budget requests,
which are reviewed by President through
OMB and transmitted to appropriations
committees of H&S
ii. Allocation of funds voted on by both
houses  fiscal oversight
iii. Robertson – legislature’s power to
intercept active litigation by changing the
underlying law is broad
iv. But once ct case becomes final, Congress
cannot enact statute that would
retroactively change law applicable to it
(Plaut)
5. Separation of powers principles – regardless of
whether a board fxns as legislative or executive,
Congress must use full enactment process of Art I §7
to take legally effective action (Metro Wash)
ii. Informal action
1. Congress has broad authority to investigate
implementation of statutory programs and to expose
corrupt or ineffective admin
2. Congressional demands for info can come into conflict
w/executive branch’s interest in the confidentiality of
its internal deliberations
a. Executive privilege – gives agencies limited
right to withhold info, but ill-defined

27
3. Legislative oversight – political in nature and often
operates through pressure or bargaining  may come
into conflict w/ legal or constitutional requirements for
agency decisionmaking
a. Pillsbury – congressional oversight committee’s
prolonged and hostile questioning of FTC
chairman regarding legal interpretation in an
order during a pending adjudication was an
intrusion into agency’s decisionmaking and had
deprived respondent of fair adjudication
b. DC Federation – Secretary’s consideration of
committee pressure was grounds for reversal
b/c Congress had directed him to consider
project “on the merits”
c. Sierra Club – rules upheld b/c no hard evidence
that Senator had brought irrelevant
considerations into deliberations and b/c
rulemaking is by its nature a political process
iii. Congressional control over personnel
1. In light of Buckley (infra), Congress cannot make
appointments to agencies itself, but can set
qualifications for various offices
a. i.e. statutory provision requiring that
multimember commission be politically
balanced
2. Congress has no power (except impeachment) to
remove agencies officials under separation of powers
argument (Bowsher)
a. In practice, agency need min degree of
legislative support
C. Executive Controls (President)
i. Appointment of officers: Appointment Clause (AC) – fairly
specific guidance
1. President generally appoints all “Officers of US”
w/advice and consent of Senate

28
a. Appointees usually share Pres’ policy
preferences
b. Buckley – SC explained that constitutional term
“Officers” includes all appointees exercising
significant authority pursuant to laws of US,
such as rulemaking, adjudication, or
enforcement fxns
i. FEC (wielding all these powers) – covered
by AC
ii. Different result if agency had merely
been assigned powers of investigative
and informative nature (i.e. 9/11
Commission)
2. Limitation on Pres: “Congress may by law vest the
appointment of such inferior Officers … in the
President alone, in the Cts of Law, or in the Heads of
Depts”
a. Morrison – upheld statute authorizing fed ct of
appeals to appoint indep counsel to investigate
allegations of criminal wrongdoing by high
officials of Executive branch
i. IC – inferior officer b/c removable by AG
(under strictly limited conditions), duties
were limited to handling single case (&
terminate at end of case)
b. Edmond – “inferior officer”: official whose work
is directed and supervised at some level by a
presidential appointee
c. Freytag – head of “dept” applies only to
executive divisions like cabinet-level depts
3. Appointment of mere “EEs” who do not exercise
significant authority under federal law need not
comply w/AC
ii. Removal of officers

29
1. Constitution does not address circumstances under
which agency personnel may be removed from office
(except impeachment cls)
a. However: substantial case law under separation
of powers
b. Difference b/w indep agencies and executive
agencies – heads of indep agencies do not serve
at pleasure of and are not under full control of
Pres
2. Myers – Congress cannot limit President’s removal
power over any US officer that he had appointed (w/o
violating Art II)
3. Humphrey’s Executor – Statutory removal-for-cause
provision was constitutionally proper limit on
President’s removal power
a. Distinguished Myers as case involving “purely
executive” officer – did not apply to officers of
FTC acting in part quasi-legislatively and in part
quasi-judicially
b. Desire to shield quasi-jud officers from arbitrary
removal
c. Analysis abandoned for Morrison
4. Morrison – Ct recognized that duties of indep counsel
were executive in nature, but upheld provision
allowing them to be removed only for “good cause”
a. Proper inquiry: whether removal restrictions
impede President’s ability to perform his
constitutional duty
b. Here: none b/c limited nature of responsibilities
and congressionally perceived need for her to
fxn indep
iii. Other executive oversight
1. Since 1971, White House has attempted to exert direct
supervision and control over major rulemaking
proceedings through EO’s (formal directive from Pres
to fed agencies or officials)

30
a. Reagan – EO 12,291: instructed agencies, “to
extent permitted by law”, to take regulatory
action only if potential benefits to society
outweigh potential costs to society
i. Prepare “regulatory impact analysis”
(assessment of costs and benefits), and
OIRA would review analysis
ii. Agency could not issue rule w/o OIRA’s
clearance
iii. Applied only to executive agencies
b. Reagan – EO 12,498: regulatory planning
process
c. Clinton – EO 12,866 (replacement): modified
cost-benefit analysis and provided that
President/VP would step in if OIRA and agency
were unable to come to resolution
i. Reg planning process extended to ind
agencies
d. Sierra Club – b/c of President’s electoral base,
participation in process can be seen as
legitimizing a rule
e. Cons: takes power away from agency that has
greatest expertise in relevant subject area
f. Pros: efficient, more politically accountable
2. President’s power to control litigation affecting
agencies through Dept of Justice b/c most agencies
must obtain representation
a. Dept’s refusal to advocate/defend an agency
policy many mean that agency’s decision has no
practical effect

V. SCOPE OF JUDICIAL REVIEW


A. Judicial Review v. Political Oversight
i. Political oversight controls – generally influence entire
programs or policies
ii. Judicial review

31
1. Operates to provide relief for individual what is
harmed by particular agency decision
2. Attempts to foster reasoned decisionmaking by
requiring agencies to produce supporting facts,
rational explanations
3. Assure agency is acting in accord w/will of political
branches
4. Provides independent check on validity of admin
decisions
iii. Trend is to make judicial review more widely and easily
available
iv. Many fxnal limitations in judicial review:
1. Designed only to maintain minimum stds (not to
ensure perfection)
2. Judicial reversal may have little impact on admin policy
v. Generally regarded as most significant safeguard available to
curb excesses in admin action
B. Law, Fact, and Discretion
i. Admin decisions: agency interprets the law  finds facts
about situation it will address  uses discretion in applying
law to factual situation
ii. APA §706 – scope of review provision
1. 2 clauses deal exclusively w/questions of law:
a. §706(2)(B) – whether Constitution has been
violated
b. §706(2)(C) – whether agency exceeded
statutory authority
2. 2 clauses deal exclusively w/fact issues:
a. §706(2)(E) – “substantial evidence” test, often
applied in proceedings where there has been
formal, trial-type hearing
b. §706(2)(F) – de novo fact review (rare)
3. §706(2)(A) – “arbitrary and capricious” test,
depending on context, can involve legal, factual, or
discretionary issues

32
4. §706(2)(D) – permits ct to reverse an agency b/c of
procedural error
iii. General rule – reviewing ct owes less deference to an
agency’s legal conclusions than to agency’s factual or
discretionary determinations
iv. Ct’s review of merits of an agency action
1. Step 1: ensures, through relatively vigorous
examination of agency’s legal conclusions, agency did
not exceed outer bounds of delegation
a. Whether agency acted w/in authority,
considered proper factors in reaching decision,
complied w/all req procedures
2. Step 2: ensures, through more deferential examination
of agency’s factual and discretionary determinations,
that delegated power was exercised in rational fashion
C. Legal Issues: In General
i. In admin law, there is strong tradition of deferring to legal
views of agencies
ii. Arguments for judicial deference:
1. Agencies tend to be familiar/sophisticated about
statutes they administer
2. Agency need flexibility to make programs fxn
effectively despite unforeseen problems
3. Agency has ties to incumbent admin and thus is
politically accountable for its decisions (unlike cts)
4. Deference promotes uniformity in the law
iii. Arguments against judicial deference:
1. Agencies cannot be trusted as final arbiters of own
power
2. Ct’s indep is a necessary check
3. Cts are at least as competent as agencies in matters of
legal interpretation
iv. Chevron – agency should have latitude to exercise its
delegated authority, subject to only limited oversight by cts
1. Test that reviewing ct should conduct when reviewing
an agency’s construction of a statute that it
administers:
33
a. (1) Whether Congress has directly addressed
the precise question at issue
i. If so  ct must give effect to
unambiguously expressed intent of
Congress
b. (2) If statute is silent or ambiguous w/respect to
specific issue  whether agency’s answer was
permissible, or a reasonable interpretation
i. Reviewing ct should presume that
Congress has delegated to agency the
task of filling in the gap in some
reasonable way
ii. Could be case that drafters actually
decided to make delegation, or left an
ambiguity though inadvertence or
inability to reach agreement
v. Framing issues that Congress has “directly addressed”
1. Step 1 under Chevron test: ct must identify precise
question that Congress may have directly addressed
2. One issue – whether agency applied legally
permissible factors
3. Ambiguity is usually matter of degree – legislation that
is acknowledged as vague can still contain enough
specificity to convince ct that statutory term cannot
mean what agency claims it means (INS v. Cardoza-
Fonseca)
4. Challenger is entitled to free choice of statutory
theories against which agency action will be
measured, but has burden of showing that statute
clearly supports such theory
vi. Resolving questions using “traditional tools”
1. Step 2 under Chevron test: ct must decide whether
statute contains a clear answer to question
2. Language of statute (clear = ct finds challenger’s
theory convincing)

34
a. MCI – “modify” connotes moderate change, not
wholesale dismantling of rate regulation
program for select group
b. Textual considerations do not always overcome
deference policy of Chevron
3. Congressional intent – overall structure of statute,
related provisions, legislative history, underlying
purposes of statute
a. FDA v. Brown & William Tobacco – finding that
FDA had jurisdiction over tobacco products
would require agency to ban them, which
agency did not seek; also, FDA had told
Congress that it lacked jurisdiction
4. Cannons of construction
a. Constitutional avoidance – statutes should be
construed to avoid constitutional problems 
frequently deployed to overcome Chevron
deference
b. Retroactivity
c. Lenity – ambiguous criminal laws are construed
to favor ∆
i. At odds w/Chevron – ambiguous admin
statutes should generally be construed to
favor gov’t
vii. Unreasonable interpretations
1. Even where applicable statute does not clearly
foreclose an administrative interpretation, review ct
need not uphold agency’s view unless it is
“reasonable”
2. In practice, seems equivalent/overlaps w/”reasoned
decisionmaking” inquiry cts conduct when they decide
whether an agency action is arbitrary and capricious
(abuse of discretion below)
a. This phase – particularly deferential b/c relates
to agency’s exercise of discretion
D. Legal Issues: Exceptional Cases (where cts do not use Chevron test)

35
i. Lack of discretionary authority
1. Skidmore – agency administrator’s interpretive
guidelines issued under act were entitled to respect
from judiciary
a. Due to knowledge and experience that shaped
them and need for uniform stds governing
public and private sectors
2. Weight depends on:
a. Thoroughness evident in its consideration
b. Validity of its reasoning
c. Consistency w/earlier and later pronouncements
d. All those factors which give it power to
persuade, if lacking power to control
3. Ct have adhered to Skidmore in other situations where
a regulatory scheme does not authorize agency to
adopt interpretations that have force of law
a. Chevron does not apply b/c not discretionary
authority
ii. Insufficient format
1. In recent cases, ct has extended use of Skidmore std
of review in more controversial direction 
applicability of Chevron depends in part on factors
such as “format” or type of pronouncement in which
an interpretation has been articulated
2. Christensen – opinion letters and other interpretations
contained in policy statements, agency manuals, and
enforcement guidelines (all lack force of law) – do not
warrant Chevron-style deference
a. At most – entitled to respect under Skidmore
3. Mead – Chevron deference depends on whether
circumstances indicate that Congress would expect
agency to be able to speak w/force of law (i.e.
relatively formal admin procedure)
4. Summary

36
a. Formal adjudication and notice-and-comment
rulemaking will normally entitle an agency to
Chevron deference
b. Interpretive rules, policy statements, opinion
letters normally will not
c. Informal adjudication – unsettled, depends on
circumstances
5. “Format” – ct’s refusal to accord Chevron deference to
agency interpretation that is advanced for 1st time in
litigation brief (Bowen v. Georgetown Univ. Hosp.)
iii. Issues that are inappropriate for administrative resolution
1. Some types of issues fall outside scope of Chevron b/c
cts assume that Congress would not have left them to
judgment of agency
a. Interpretive questions arising under APA, FIA,
other generic admin law statutes  address
agency action in general, so no single agency’s
reading can be controlling
2. Chevron does not apply to matters that by their nature
must be resolved by cts
a. Individual’s criminal liability
b. Powers of federal cts
iv. Nonstatutory issues  Chevron principles not directly
applicable when ct construes legal norm other than statute –
i.e., constitutional questions, a regulation that merely quotes
statutory language
E. Substantial Evidence Review  factual inquiries
i. APA contains 3 stds of review that potentially can govern
reviewing ct’s inquiry on whether to sustain agency’s factual
findings
1. Substantial evidence test (§706(2)(E)) – triggered if
agency decision was made after a trial type, on-the-
record hearing (formal adjudication, rulemaking on a
record)
2. Arbitrary and capricious test (§706(2)(A)) – most
other proceedings

37
3. De novo test (§706(2)(F))
ii. Substantial evidence test – ct assess reasonable of agency’s
factfinding (not about finding right/true facts)
1. Such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion
2. Make sure agency has done careful, workmanlike job
of collecting and evaluating available data, or that
agency has taken a “hard look” at impt factual issues
3. Ct must consider whole record (Universal Camera)
a. Not only look at evidence that supports
agency’s decision, must consider all relevant
evid for/against agency’s findings
4. Test applies to agency’s decision, not the ALJ’s
(Universal Camera)
a. ALJ’s decision is part of record, and if contrary to
agency’s decision, reviewing ct must consider it
in evaluating evidentiary support for final
agency decision
b. Weight accorded to ALJ’s findings depends on
kind of issue
i. i.e. eyewitness testimony should be given
considerable weight b/c ALJ observed
witnesses, but expert testimony or policy
considerations deserve little deference
5. Agency can lighten evidentiary burden by interpreting
governing statutes leniently (i.e. via rulemaking)
F. Abuse of Discretion Review  discretionary inquiries
i. Ct must consider whether action was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance w/law”
 APA §706(2)(A)
1. Abuse of discretion = arbitrariness = rational basis
review
2. Nonfactual review
ii. Inquiry into whether decision was based on consideration of
relevant factors and whether there has been clear error of
judgment (Overton Park)

38
iii. Modern practice – review has shifted towards scrutiny of
quality of an agency’s reasoning
1. Ct typically asks whether exercise of discretion rests
on an analysis that is at least plausible in light of
record, parties’ contentions, constraints of statute
2. Usually deferential
iv. Specific situations where reviewing ct can hold agency
abused its discretion
1. Discretionary decision may be unlawful if inconsistent
w/agency’s own rules
2. Departure from agency precedents embodied in prior
adjudicative decisions can constitute abuse of
discretion if reasons for failure to follow precedent are
not adequately explained – usually remand for fuller
statement of reasons
3. Breaching certain principles of judge-made law –
equitable estoppel, res judicata, collateral estoppel
4. Ct will sometimes hold particular remedy too severe if
agency has not explained satisfactorily why not choose
less drastic sanction
G. Findings and Reasons
i. When agencies take action w/o explanation or w/insufficient
explanation – ct typically remand
1. Basic req is that agency reveal enough of its reasoning
to permit meaningful judicial review
ii. Chenery principle – reviewing ct may not affirm on basis
other than agency’s own rationale  only agency has
authority to make discretionary determinations that Congress
has delegated to it
1. Cts may not accept appellate counsel’s post hoc
rationalizations for agency action
2. If ct finds that agency’s announced rationale for an
action is impermissible, it may not uphold action on
ground that agency was actually following different
permissible rationale w/o saying so

39
3. If agency takes an action that it mistakenly believes to
be legally required, ct must remand even if agency
would have had discretion to take the action b/c
agency might have chosen differently if agency know
that it was permitted
4. Ct cannot specify what alternative rule agency should
adopt
H. Review on the Admin Record
i. In cases w/o formal, trial-type proceedings, including most
rulemaking cases – substantial evidence test normally does
not apply
ii. Ct can turn to either:
1. APA §706(2)(A) – arbitrariness std
a. Scope: informal action must be reviewed for
abuse of discretion on basis of full admin record
before Secretary at time he made his decision
(Overton Park)
2. APA §706(2)(F) – de novo w/o any deference
a. Scope: available only in 2 virtually nonexistent
circumstance
b. Usually occurs when statutory or constitutional
guarantees outside of APA requires it
iii. Review would take place on admin record – extended to
informal rulemaking cases (after Overton Park)
1. Pass under arbitrariness std if record contains
evidence that could lead reasonable person to accept
factual premises of regulation, or agency did not
misuse is discretion
I. Review of Rules
i. Problems in rulemaking context:
1. Many central issues concern policy judgment and
legislative facts
2. Issues can be highly technical
3. Record is fundamentally diff from adjudication record

40
ii. Hard look review – method for cts to prevent abuses of power
in rulemaking process but does not permit them to make
legislative/political judgments
1. Ct would examine whether agency had engaged in
reasoned decisionmaking (State Farm - SC gave
explicit approval)
a. Explaining position cogently and thoroughly
b. Responded to significant criticisms
iii. Judicial remedies – “remand w/o vacation”: allowed a
remanded rule to remain in effect while the agency is curing
the error that caused the rule to be sent back
1. Practical advantages, but a number of objections
J. Agency Inaction and Delay
i. APA’s definition of “agency action” includes “failure to act” 
APA §551(13)
1. However – ct are usually more deferential when asked
to review admin inaction
2. Reflects understanding of practical pt that agency has
limited resources and must set priorities
3. Chaney – Ct held that agency’s refusal to initiate an
enforcement proceeding presumptively unreviewable
ii. APA specifically addresses jud review of inaction in APA
§706(1) – reviewing ct shall “compel agency action
unlawfully withheld/unreasonably delayed”
1. May only be used to require an agency to make a
discrete or particularized action (SUWA)
2. May not be used to compel an action unless that
action is legally required (SUWA)
iii. After proceeding has been launched, participants may ask
cts to intervene if agency does not render decision w/in
reasonable period of time
1. Rule of reason – ct balances hardships to the agency
and to the complaining party

VI. OBTAINING JUDICIAL REVIEW


A. Jurisdiction: Routes to Review

41
i. Preliminary task – determine proper ct in which to seek relief
ii. Statutory review
1. Congress creates special statutory review proceedings
relevant to the subject matter
2. Modern trend – allow petitioner to proceed directly to
ct of appeals
a. Promotes judicial economy  actions (formal
and informal) are generally reviewed on an
admin record, so factfinding capabilities of trial
ct are not needed
iii. Non-statutory review
1. Congress has failed to create a special statutory
procedure for judicial review, or procedure that does
exist cannot furnish adequate relief
2. Party will look to general grants of original jurisdiction
that apply to federal cts
a. Usually parties proceed under general federal
question jurisdiction statute – 24 USC 1331
3. APA cannot supply jurisdictional basis for non-statutory
review, but merely tells reviewing ct what to do after
obtaining jurisdiction
B. Unreviewable Administrative Actions
i. Judicial review serves impt social fxns:
1. Provides redress for persons who have been harmed
by arbitrary or illegal gov’t action
2. Serves to keep agencies faithful to policy objectives
and procedural safeguards established by legislature
ii. APA empowers cts to review nearly all agency actions
1. 2 exceptions – APA §701(a): judicial review not
available to the extent that
a. (1) statutes preclude judicial review; or
i. Primarily concerned with formal
expressions of legislative intent
b. (2) agency action is committed to agency
discretion by law

42
i. Deals primarily with fxnal reasons why
review would be difficult or harmful
c. “to the extent”  reminder that an action can
be partially rather than totally unreviewable
i. Partial unreviewability is more common
iii. Statutory preclusion of review
1. Congress controls jurisdiction of federal cts, so it can
preclude judicial review by statute
a. Counter to strong modern trend toward making
judicial review freely available
2. Presumption of reviewability – congressional intent to
preclude review must be demonstrated by “clear and
convincing evidence”
3. Johnson v. Robison – SC held that R escaped statutory
preclusion b/c he was not seeking review f an admin
decision under the statute but rather was challenging
the constitutionality of the statute itself
a. Preclusion deigned to serve 2 policy goals:
preventing burdens on cts and the agency, and
assuring national uniformity in the application of
VA stds and policies
4. Erika v. Michigan Academy
a. Erika – Ct construed provision of Medicare Act as
impliedly forbidding federal cts from reviewing
amts of reimbur that program paid to health
care providers under Part B
i. Ct pointed to indications in legislative
history that Congress wanted to keep
these minor matters out of federal ct
b. Michigan Academy – Ct construed same
provision more permissively and allowed suit to
proceed where group of family physicians
sought to contest regulations governing their
Part B reimbursements
i. Ct did not believe that Act should be
construed to bar statutory and

43
constitutional challenges to the method
by which reimbursement amts would be
determined
5. Major unresolved question: whether and how far the
Constitution requires litigants be permitted to
challenge agency actions in ct
a. Mendoza-Lopez – due process requires some
judicial review
b. Webster v. Doe – construed statute to allow
review of constitutional of CIA decision b/c of
the “serious constitutional question” that would
otherwise arise
iv. Committed to agency discretion
1. Ct are designed to make and review reasoned
decisions; agencies perform similar functions in
rulemaking and adjudication, but also make other
kinds of decisions:
a. Political judgments, bargained decisions  cts
may not be competent to review
b. Compelling need for speed, flexibility, secrecy
2. When ct finds that there is some compelling practical
justification avoiding review  may conclude that
action is wholly or partly committed to agency’s
unreviewable discretion
3. Citizens to Preserve Overton Park – exemption comes
into play when there is “no law to apply” to the
agency’s decision
4. Chaney – OP test means that review is not to be had if
statute is drawn so that a ct would have no meaningful
std against which to judge agency’s exercise of
discretion
a. Good illustration of Ct’s flexibility in applying the
unreviewability doctrine
b. Agency’s refusal to initiate an enforcement
proceeding is presumptively unreviewable 
absence of statutory stds and practical

44
difficulties (cts have little competence to
evaluate rationality of discretionary choices)
5. Ct has never used this test as sole basis for holding
unreviewability
6. Auer – agency’s refusal to institute rulemaking
proceeding is subject to judicial review
C. Standing
i. Const, Art. III §2 – limits fed judicial power to cases &
controversies
ii. APA §702 – person adversely affected or aggrieved by
agency action w/in meaning of relevant statute could obtain
judicial review
iii. Data Processing – Ct reduced law of standing to 2 questions:
1. (1) Whether the litigation involved a “case or
controversy” = whether π alleges that challenged
action has cause him injury in fact, economic or
otherwise
2. (2) Whether π’s interest was arguably w/in zone of
interests to be protected/regulated by statute or const
guarantee in question
iv. Constitutional standing
1. Sierra Club – threats to aesthetic, recreational, and
environmental interests could constitute sufficient
injury in fact
a. Mere “interest in a problem” or abstract injury
not enough - org must demonstrate that gov’t
was causing specific injury to it or its members
b. Usually associations have standing to sue on
behalf of its members when its members would
otherwise have standing to sue on their own
(Washington State Apple)
2. Standing inquiry: injury, traceability, and redressability
a. Cts must decide standing issue first; may not
assume standing and proceed to merits (b/c
easier to resolve)

45
b. Injury – must provide specific factual support for
an asserted injury in fact
i. Can’t be “in vicinity” or “minute and
indeterminate”
ii. Defenders – no definite plans, so did not
establish that they faced actual or
imminent injury; generalized interest
insufficient
iii. But: Congress can indirectly broaden
standing when it creates new legal rights
(Akins)
c. Traceability (cause/will cause) and redressability
i. Defenders – even if Secretary had to
consult with other agencies, they may
decline to comply
ii. Utah – standing to challenge census
calculation b/c otherwise gov’t would
accept new figures
iii. Usually equivalent, but sometimes
diverge  If ∆ has discontinued
challenged conduct, even if that conduct
admittedly harmed π in past, a ct decree
would not necessarily make her better off
in future
v. Zone of interests
1. Clarke –test “not meant to be especially demanding”
and prevents standing only when “π’s interests are so
marginally related to or inconsistent w/the purposes
implicit in statute that it cannot reasonably be
assumed that Congress intended to permit suit”
2. Air Courier – statute establishing postal monopoly was
to ensure postal services would be provided for
citizens, not to secure employment for postal workers
(so union did not have standing)

46
3. Litigant can satisfy test by relying on purpose of
specific provision underlying suit – may not be same as
primary purpose of overall regulatory scheme
4. Zone test is a prudential, nonconstitutional limitation
on standing  Congress can modify or dispense with it
D. Timing of Judicial Review
i. Finality  Concerned w/ensuring agency has reached
definitive, rather than preliminary/tentative, disposition of
particular case or issue
1. APA §704 – final agency action is subject to judicial
review
2. 2 conditions:
a. (1) agency action must mark consummation of
agency’s decisionmaking process and not be of
merely tentative or interlocutory character
b. (2) action must be one where rights/obligations
have been determined, or from which legal
consequences will flow
3. Agency’s decision to inquire further into a matter is
not, standing alone, a final agency action (SOCAL)
4. Generally bars review of actions taken by subordinate
officials whose decisions will not directly affect public
(Franklin)  nonfinal b/c President was free to approve
or disapprove
5. If pronouncement is informal statement (advice letter),
ct said that such letter, if sighed by agency head,
should be presumed final, although agency head could
overcome this presumption by filing affidavit stating
that matter was still unresolved (Cleaning Council)
ii. Exhaustion  If review is sought while agency proceeding is
still under way, ct will usually dismiss action b/c of π’s failure
to exhaust admin remedies
1. Several purposes:
a. Designed to prevent regulated parties from
delaying or obstructing agency’s ability to
conduct orderly proceeding

47
b. Gives ct benefit of agency’s factfinding capacity
and expertise in analyzing factual assertions
c. Gives agency time to correct it own mistakes
2. Exhaustion goes further than finality – i.e. when party
goes to ct to induce government action and he has not
pursued admin remedies for relief w/o ct participation
3. If explicitly mandated by Congress  required;
reviewing ct has no power to recognized any
exceptions
4. If Congress silent  in ct’s discretion to recognize
exceptions:
a. Immediate judicial review is usually permitted
when litigant establishes that agency is clearly
exceeding its jurisdiction
b. Not required to exhaust admin remedies that
are inadequate (McCarthy)
i. Where agency lacks authority to grant
relief π seeks
ii. Resort to admin channels might cause
undue delay
c. Statute (i.e. §1983) that relieves a litigant from
exhaustion requirements (Patsy)
d. APA §704 – agency action that is “otherwise
final” is “final” for judicial review purposes
regardless of whether challenger has sought
reconsideration or appealed to superior agency
authority  if party has taken every available
step at agency level except for reconsideration
or internal appeal, exhaustion and finality cease
to be barriers UNLESS agency adopts
regulations requiring internal appeal
e. Ct may also be reluctant to penalize failure to
exhaust if criminal sanctions are at issue
(McKart)

48
f. Party not required to exhaust remedies in on-
the-face challenges to constitutionality of
statutes
i. Unless case presents both constitutional
and non-constitutional issues, or attack is
based on facts
5. Expense and disruption of defending oneself against
admin charge – generally not exception
6. Also, cts usually insist on issue exhaustion – not
obliged to address issues that challenger did not first
present to admin decisionmaker
iii. Ripeness  Typically comes into play when party challenges
agency rule or statement at relatively early stage of
regulatory process, prior to actually seeking to enforce its
policy against given individual
1. Several purposes:
a. Implications of policy often become clearer as
implemented b/c scope may be ambiguous and
consequences difficult to predict
b. Anticipated collision may not occur – review
unnecessary
2. Abbott Labs - Ct must evaluate both:
a. Fitness of issues for judicial decision, and
i. Parties agreed that dispute turned on
congressional intent and no factual
development was needed, so issue was
appropriate for judicial resolution
b. Hardship to parties of withholding ct
consideration
i. Burdensome on companies
3. Toilet Goods – ct held unripe b/c further development
of facts in context of specific enforcement proceeding
might aid review, and withholding review would not
injure companies

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