Is the action an interpretation of fact, or of law?

Law Fact

Has the agencys action created a rule that has the force of law?

No, e.g. opinion letters, manuals, guidelines, etc

Skidmore Deference

Is the action reviewable? ( 701) Yes No

Yes

Was the agencys rule created by a formal adjudication? Chevron Deference, dickhead.

Is there a statutory prohibition on review? (Overton)

No Yes

Yes

No

Is the action committed to agency discretion? (rare) Yes meatspin.com

Was the rule developed in the course of informal rulemaking? No Yes

Arbitrary & Capricious Test Flowchart

No

Whats the appropriate standard of review? (706)

Whats the procedural origin of the decision? Informal Rulemaking Formal Adjudication 706 (A): A&C (Chevron Step 2) 706 (B): Contrary to constl right, et al. 706 (C): in excess of staty jurisdiction 706 (D): w/o observance of procedure reqd by law 706 (E): Unsupported by substantial evidence 706 (F): Unwarranted by the facts (de Novo) Universal Camera focus on Frankfurters contribution Questions of law/policy open to full review, but agency should be reluctant to disturb findings of fact Did the official exceed the scope of his authority? Was the authority abused?

No

No Yes

Were all procedural requirements observed?

Yes

Informal Adjudication w/ Inadequate Factfinding Procedures

Yes Try again, agency No

Was there a rational connection between the facts and the choice made?

Did agency 1) Consider only relevant factors? (State Farm) 2) Avoid omitting important matters? 3) Avoid fact conclusions that contravene the evidence on the record? (State Farm) 4) Avoid unreasonable policy decisions? (MA v. EPA)

Enforcing nonadjudicatory agency action w/ issues that have never been raised before the agency

Administrative Adjudication Due Process

(1) Exception to Notice: Emergency Public Health: e.g. North American Cold Storage, where dudes had to seize and destroy a bunch of poisoned food Statutory Exception (or risk to financial system) e.g. FDIC v. Mallen, where FDIC suspended an officer of an insured bank w/o notice because motherfucker had been charged with a felony that involved his integrity (and thus was allowed to be sacked by statute) Felony by someone in a law enforcement position e.g. Gilbert v. Homar, where state college cop charged with a felony was suspended

Is there an action that deprived you directly? Yes No

Does this deprivation go beyond a mere unilateral expectation?

Yes

No

How much process do I give? (1) (2) (3) Eldridge Test: What is the interest to the individual? What is the risk of error in the process and the value of the added process? Whats the government interest in administrative efficiency? Minimum Due Process (Goss) Meaningful notice Opportunity to Rebut (also Memphis Light) Neutral Decisionmaker At least some evidence to support the governments position

(3) Neutral Decision Maker

Things that would make a decisionmaker NOT QUALIFIED: BUT No problem where an agency keeps the fines it imposes, but the decisionmaker is independent and has no interest in the outcome (Marshall v. Jerrico)

(1) (2) (3) (4)

Financial interest in the outcome of the decision: e.g. Tumey v. Ohio asshole mayor BUT Interest in occupational licensing: e.g. No problem where licensing body seeks to Gibson, where a board of private exclude individual members (e.g. ABA) optometrists was trying to dick over (by refusing to license corporate practice BUT (re bias) optometrists Mixture of prosecutorial and deciding Bias: Rule: whether a disinterested powers does not violate due process e.g. observer may conclude that the agency Withrow, where board conducted has prejudged the facts as well as the law investigation, found probable cause, then of a particular case before hearing it e.g. making a speech before the hearing also sat for formal hearing to revoke license (Cinderella II) e.g. Having prior dealings with the Crux of Bias: adjudicated industry (American Whether exoneration would give the Cyanamid) appearance of error or a change in judgment.