ADMINISTRATIVE LAW OUTLINE SPRING 2010

QUESTION 1: WHAT IS THE SOURCE OF LAW FOR EACH ISSUE?

• The Constitution
• The APA
• The Agency’s Statute
• Other Statutes
• Traditional Common Law principles

QUESTION 2: ARE THE CONGRESSIONAL DELEGATIONS TO THE AGENCY CONSTITUTIONAL?

• Non-Delegation Doctrine Issues?
○ Doctrine says: Constitution vests the legislative power to Congress.
Congress may not delegate away the legislative power.
○ Doctrine delegates how much discretionary power Congress may delegate to
an agency, insures social choices are made by Congress, and assures there
is a check on administrative power.
○ Intelligible Principle Test:
 Delegation is permissible when Congress lays down by legislative act
an intelligible principle to which the person or body authorized to fix
such rates is directed to conform. JW Hampton & Co v. US
○ New Deal Conservative era:
 Panama Refining Co v. Ryan, unconstitutional since did not
constrain standards guiding Pres’s decision of whether to invoke
powers in particular case. No intelligible principles.
 Schecter Poultry v. US, court invalidated part of NIRA because it
contained insufficient standards guiding the Pres’s discretion over
whether to approve a particular code of fair competition. Codes also
drafted by private groups. There was no “intelligible principle” to guide
the interpretation of “fair competition.”
 Carter v. Carter Coal Co, statute authorized coal producers to elect
local boards to set minimum prices for coal in their districts. Court
said, “Legislative delegation at its most obnoxious form.” Congress
cannot delegate legislative power to private persons whose interests
may be adverse to the interests of others in the same business.
○ Very lenient standard. No statute has failed intelligible principle test in
recent years. Early cases absolutely prohibited. Congress can legislate with
a broad stroke and allow an agency to fill in the details. Wayman v.
Southard
 Yakus v. United States: authorized administrative agency to fix
prices after consultation with industry representatives
• upheld b/c the agency created a policy outlining guidelines for
the price fixing.
• If the delegation contains safeguards against unfair an
inequitable action, they will be upheld.
○ Recent cases:
 Benzene Case: OSHA ‘s authority to prescribe occupational work and
safety standards regarding Benzene exposure. Construed statute to
require a significant risk in the workplace before the agency was
authorized to promulgate a workplace

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 • (Renquists’ concurrence): normative basis for the doctrine =
Congress makes the basic policy choices and provide more
definite standards for courts to apply to these cases.
 Touby v. US, 1999: upheld delgation of power to AG to put drug on
list of controlled substances. When talking about criminilizaton
delegation, may need to be more specific. Satisfied in Touby.
 Mistretta v US. 1989: upheld Sentencing Reform Act , delgating
authority to promulgate mandatory federal sentencing guidelines to US
Sentencing Commission. Act’s declaration of purposes and goals, and
its specifications of the factors to be considered by the commission,
provided sufficient intelligible principle.
 American Trucking Associations, Inc, v. EPA (1999): overruled by
Whitman!
 Whitman v. American Trucking Association, Inc. 2001: EPA issed
final rules of ambient air quality standards. Groups said they lacked
any determinant criterion for setting the standard. Also, Clean Air Act
(Enabling Act for EPA) lacked determinate criterion. Remanded to EPA
to cure the constitutional defect. RULE: agency cannot cure an
unlawful delegation of legislative power by adopting, in its own
discretion, a limiting construction of the statute.
 Separation of Powers concerns: Scalia’s dissent in Mistretta discusses
agencies acting like min-legislatures.
• Separation of Powers Issues?
○ Legislative veto: Congress was able to reject agency action with a vote by
one house of Congress or by one Committee. Not presented to President for
signature or veto.
○ Immigration and Naturalization Services v. Chadha, 1983: House
vetoed House vetoed AG’s decision to suspend Chadha’s deportation. One
house veto violates bicameralism (must pass both houses) and presentment
clause (must be presented to the President) in Article I of the Constitution.
○ Clinton v. NY, Cancellation provision authorized by the Line Item Veto Act
are not constitutional. Article I, section 7 is silent on this, so it should be
prohibited.
○ Ineligibility Clause: staffing of agency with members of Congress is
unconstitutional.
• Appointment and Removal Issues?
○ Appointments Clause = Article II, Section 2, Clause 2 of Constitution.
 Authorizes appointment of Officers of the United States and Inferior
Officers.
 Officers nominated by Presidnet with Senate concurring.
 Buckley v. Valeo, 1976: 4 of 6 officers of FEC were appointed by
members of Congress, which goes against the Appointments Clause of
the Constitution.
 Congress has no authorit y to appoint. President appoints Officers.
President, heads of department or courts may appoint inferior officers.
○ Removal Powers: Constitution silent
 Congress shall not have power to remove officials other than
impeachment.
 Marbury v. Madison: although the President generally had the power to
remove officers he appoints with advice and consent, Congress can restrict
the President’s authority.

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 Myers v. United States: Rejected Marbury view. President’s removal of the
post-master w/o advice and consent of Senate. Although President is vested
w/art II power, “there may be duties so peculiarly and specifically committed
to the discretion of a particular officer as to raise a question whether the
President may overrule or revise the officer’s interpretation the laws be
faithfully executed).
• Removal of Inferior Officers: the authority of Congress to vest the
appointment of inferior officers in the heads of departments carries
with it authority to vest department heads with the power to remove.
• Congress cannot draw itself the power to remove or the right to
participate in the exercise of that power.
 Humphrey’s Executor v. U.S.: Roosevelt removed FTC Commissioner; he
died and estate challenged the removal to get his back salary.
• Ct narrowed Myers holding; reasoning that a postmaster is an
executive officer restricted to the performance of executive functions
and does not have duties related to either the legislative or judicial
powers. FTC was appointed to carry into effect legislative policies and
to perform other specified duties. FTC cannot be characterized as an
arm of the executive.
 Wiener v. US: President couldn’t remove a member of the War Claims
Commission b/c the Commission was an adjudicating body.
 Bowsher v. Synar: Congress can’t play a direct role in controlling officers
performing executive functions; allowing Congress the power to remove
officers charged with the execution of laws is inconsistent with the separation
of powers.
 Morrison v. Olson: the Ethics in Gov’t Act created an independent counsel
to investigate high-ranking gov’t officials for federal criminal violations;
promulgated after the Nixon. Appointed upon request of Congress or an
independent source. Attorney General has authority to remove the counsel
for good cause. Evidence is brought to the AG, who does an initial screen; if
AG finds no grounds to continue investigation, no independent prosecutor is
appointed. NOT subject to review. If AG finds further investigation is needed,
AG applies to a Special Division of the Ct of Appeals who appoints the
independent counsel.
• SCT held the act to withstand Constitutional muster w/r/t the
Appointments Clause, Art III, or Separation of Powers b/c the
Independent Counsel is an “inferior officer” who can be removed by a
“higher executive branch official.”
• How to determine whether an officer is an “inferior officer”?
○ is the officer subject to removal from a higher ranking executive
official?
○ Are the officer’s duties limited?
○ Is the officer’s jurisdiction limited?
○ Is the tenure of office limited?
• Removal restrictions did not violate separation of powers b/c
○ the exercise of the IC’s discretion is not central to the
functioning of the Executive Branch as to require the counsel to
be terminated by the will of the President.
○ Good cause limitation vests ample authority with the AG to
assure the IC is competently performing its function.
○ Any higher executive official or can remove an inferior officer
UNLESS that would vest incongruous appointment authority in
the courts
 To check the Constitutionality of a removal process:
• Determine what type of official is involved.

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 • an Art II Officer can be removed by the President WITHOUT the
advice/consent of senate
• Inferior Officer removable by a higher ranking executive official.
 Ex Parte Siebold: Congress’ decision to vest the appointment power in the
courts would be improper if there was some “incongruity” between the
functions normally performed by the courts and the performance of their duty
to appoint.
• Executive Powers?
○ Types of policing
 Appointment and removal powers
 Legislatively created restrictions
 Constitutional limitations:
• Marbury v. Madison: not all administrative officers are exclusively
under the control of the President.
• Kendall v. US: SCT held that although executive power is vested in
the President, it does not follow that every officer in every branch of a
department is under the exclusive control of the President. Congress
may impose duties upon executive departments/officials.
• Youngstown Steel v. Sawyer: President Truman seized steel mills
during the Korean War without statutory authority, citing Art II power.
SCT held that the seizure was an exercise of lawmaking power not
executive power. Jackson concurrence enunciated three types of
presidential actions:
a) Strongest Exercise of President’s Power: those undertaken
with the authorization of Congress, express or implied;
b) Intermediate: President & Congress have Concurrent Power:
those undertaken with neither the support nor disapproval from
Congress; and
c) Presidential Power is at its Lowest Ebb: those undertaken in
opposition to the express or implied will of Congress.

QUESTION 3: IS THERE A QUESTION REGARDING AGENCY’S POWER TO ACT?

• If so, look to the agency’s Enabling Act

QUESTION 4: WHAT WAS THE POLITICAL BACKGROUND FOR THE AGENCY’S ACTION?
• Public Choice Theory: Agency was captured by a powerful interest group.
○ If so, express skepticism about the Agency’s action.
• Public Interest Theory: Agency seeking to solve a public policy issue.
○ Argue for deference to the Agency’s action.

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QUESTION 5: MAY A FEDERAL COURT REVIEW THIS AGENCY’S ACTION?
• DO THEY HAVE JURISDICTION?
○ Which court can hear the petition for review?
○ Subject to Art III of Constitution, Congress can choose which courts will be
granted jurisdiction and may define the conditions under which that
jurisdiction may be involved.
○ 1ST: Look to Enabling Act in legislation and follow directions in statute.
Should state what court it vests jurisdiction (Appellate, District, Art III).
○ 2nd: If statute does not say, look to 28 USC 1331 for Federal Question
Jurisdiction.
 Califano v. Sanders, if the APA provides no default, the default
jurisdiction is federal question jurisdiction.
 If statute is ambiguous about which court, trend is for appellate review.
• Harrison v. PPG: SCT interpreted a Clean Air statute providing for
direct appellate review of “any other final action” to include informal
agency actions
• Florida Power and Light v. Lorion: absence of a record is not a
basis to deny appellate-type review.
• IS THIS REVIEWABLE?
○ Reviewability Overview:
Pre-1. Statutory Preclusion (701a(1))
1. Categorical Approach
a. Decisions not to seek enforcement
• Presumptively unreviewable (Heckler v. Cheney)
○ Becomes qualified by future cases.
b. Deeming clauses ___ Webster v. Doe
c. How to spend general appropriations--- Lincoln v. Vigil
• Involves reallocation of resources for medical programs for Indian children.
Challenged by tribes. When Congress allocated money to the Bureau, it didn’t
target how the money would be spent. Agency is given lump sum general
appropriations here. Court views unsuitable for judicial review. No law to
apply.
2. “No law to apply” Overton Park.
• No judicial standards which court could refer to examine if decision appropriately made.
• Courts in later decisions move toward identifying broad categories rather than going case by case.
These sweep a little more broadly.
○
○ SECTION 704 APA tells us what can be reviewed:
 Final agency actions for which there are no judicial remedies in the
court, are subject to judicial review. What is final agency action?
• Must be agency action (section 551)
• DEFINITION APA 551: WHOLE OR PART OF A RULE, SANCTION,
RELIEF, DENIAL OF, AND FAILURE TO ACT.
 Who may seek judicial review?
• Person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action with the
meaning of the relevant statute.
 If seeking money damages, will have to go elsewhere.
 Norton v. Southern Utah Wilderness Alliance, 2004: suit was to
require agency to take action (prohibit off-road vehicles in wilderness
area). Court said it was not a required action per statute. Rule: the
APA 5 USC 706 (1) does not provide a right of action either for an
agency’s failure to take general action that is not required to take or

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 for failing to implement nonbinding statements of priorities in the
agency’s land use plan.
• Review is not available to challenge the general manner in which
an agency regulates.
 Johnson v. Robison, 1974: Action to declare Veterans benefits
statutes unconstitutional. Question in case is whether there was
statutory preclusion of judicial review. Statute that precludes review of
agency action does not preclude a constitutional challenge to the
statute itself. Court is reviewing a decision by Congress, not the
agency.
 Gott v. Walters: expanded Johnson v. Robison; Challenge that
guidelines used by the VA to determine injury claims following
exposure to radiation were not promulgated in accordance with the
rulemaking procedures in the APA. The guidelines were to be 1) allow
for a public comment period; and 2) be published. ISSUE: Whether the
statutory preclusion of judicial review of VA decision applies. HELD:
Issues of law not decided by the administrator are excluded from the
preclusion clause as are issues of law decided by the Administrator
NOT in the course of a determination under veteran’s benefit law, but
in the course of applying independently operative statutes such as the
provisions of the Freedom of Information Act not related to the
procedure for administrative decision-making.
 SCT has construed other statutes NOT precluding judicial
review:
• Traynor v. Turnage: SCT held that the VA preclusion clause did
not preclude judicial review of a veteran’s claim that application
of a VA rule violated the Rehabilitation Act—statute which
prohibited discrimination against the handicapped by all federal
and state agencies. SCT allowed review b/c the statute was one
of general applicability.
○ Did Congress pass a law preventing the court from reviewing the
constitutional question?
 Statutory preclusion is a mess. General rules are:
• Completely precluding judicial review probably not acceptable.
• Preclusion by putting in place procedures that do not allow
meaningful review is not generally acceptable.
• McNary v. Haitian Refugee Center, Inc. 1991: P’s denied
amnesty, claimed the that Immigration Reform and Control Act
deprived them of due process rights under the 5th amendment.
Held: the statutory bar for individual case determination s does
not prevent a court form reviewing collateral constitutional
challenges.
 “Committed to agency discretion by law” = this is an inference
based on way statute is constructed.
• Webster v. Doe, 1988: CIA terminated Doe because he was
homosexual. He claimed statutory and constitutional violations.
Statutory language said “director may terminate employees
when he deems necessary.” (DEEMING CLAUSE) Final
authority given to director of CIA. The decision is not judicially
reviewable under the APA, however nothing in APA suggests that
his constitutional claims are not reviewable.

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 Presumption of review rebuttable:
• APA § 701(a) judicial review applies except to the extent that:
○ statutes preclude judicial review; OR
○ agency action is committed to agency discretion by law
 Overton Park limited these cases to situations
where there is “no law to apply.”
 Allocation of appropriations (funds)
• Lincoln v. Vigil: lump sum appropriation to Bureau of Indian Affairs;
agency chooses not to fund an educational program and shifts the
money to a different program. This action was challenged by
beneficiaries under the APA. The funds were never specifically
appropriated by Congress for the other program.
○ ISSUE: whether the re-allocation was judicially reviewable?
○ RULE: “Rules of agency organization” are exempt from the
notice-and-comment requirements” of APA 553 (b)(A).
○ HELD: The allocation of funds from a lump-sum appropriation is
an administrative decision traditionally regarded as committed
to agency discretion b/c the clear inference from such a grant is
that Congress does not intend to impose legally binding
restrictions on the agency. Lump-sum appropriations reflects a
congressional recognition that an agency must be allowed
“flexibility to shift funds within a particular appropriation
account so that the agency can make necessary adjustments for
unforeseen developments and changing requirements. Agency
is in a better position than the courts to determine its spending
priorities.
 Reviewability of Prosecutorial Discretion (usually decision not to
prosecute)
• Courts usually turn away these cases. They create a separations
of powers problem between the President and the courts (Art II
and Art III)
• Heckler v. Cheney, 1985: Chaney brought an action to compel
the FDA to stop the use of lethal drugs in executions. Rule: A
decision by the FDA to refrain from enforcement proceeding sis
not subject to judicial review. Largely due to the respect for the
greater knowledgeabilty that an agency will be presumed to
have over a court. Another reason is that agency lack of
enforcement generally does not involve coercive intrusion upon
personal liberty, the protection of which is the is the main
concern of the court.
○ Court asked three questions:
 Whether FDA had jurisdiction to undertake the
enforcement actions requested
 Whether if it did have jurisdiction, its refusal to take
those actions was subject to judicial review, and
 Whether if reviewable , its refusal was arbitrary and
capricious or an abuse of discretion.
○ Ultimately, reasons court refused to review:
 Decisions not to enforce often involve a complicated
balancing of factors within the agency’s expertise
 When an agency refuses to act it does not exercise its
coercive power over an individual’s liberty or property

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 rights and thus does not infringe on areas that courts are
called upon to protect
 Decision not to enforce is similar to prosecutor’s decision
not to indict
○ Exception (presumption of unreviewability is rebuttable) when:
 An agency declines to act based solely on its belief that it
lacks jurisdiction, or,
 Where an agency “consciously and expressly” adopts a
policy that is so extreme that it represents an abdication
of its statutory responsibilities.
• Public Citizens Health Research Group v. Chao, 2002: OSHA
formally acknowledged that its standard for acceptable concentration
of hexavalent chromium was inadequate. Later, after studies
confirmed the levels doubled the risk of lung cancer, OSHA still failed
to undertake a rulemaking to modify the standard. RULE: An agency’s
delay in taking a required action creates a right of action under the
APA 5 USC 706(1), where the delay is excessive and has no scientific
justification or a valid justification based on the agency’s competing
priorities.
○ There were many significant reasons for delay in this case,
however court finds that given OSHA’s own admission that he
risk to public health in this case is grave, competing priorities
cannot justify further delay.
○ Ordered mediation and for OSHA to issue new rule.

• IS THERE STANDING TO SECURE JUDICIAL REVIEW?

○ Answers the question, whether the claim may be asserted by the particular
party before the court. Three different sources of standing limitations:
○ Constitutional standing (Article III limits courts to Cases and
Controversies):
 Injury in fact (must be imminent) and sufficient to bring claim to court.
 Fairly traceable and caused by the challenged government conduct.
 Redressability (it can be remedied by a favorable judgment).
 Sierra Club v. Morton, 1972: held an abstract interest in
environmental protection, was not sufficient injury for standing
purposes. Only a person who had used and planned to continue to use
the parkland in its undeveloped state would have a sufficient injury to
bring suit to prevent development.
 Injury:
• Common law injuries, aesthetic injuries, economic injuries, and
deprivation of rights are sufficient for standing.
• Right to truthful information is statutorily created right and
deprivation may result in injury.
• Members of Congress may have standing to sue over
interference with their powers.
• Moore v. House of Representatives, 1984.
 Fairly traceable to conduct
• US v. Students Challenging Regulatory Agency
Procedures: Law students challenged setting of railroad rates
against the ICC. HELD: Students had standing b/c they alleged
that the specific and allegedly illegal action of the ICC directly
harmed them in their use of natural resources of the Washington
Metropolitan area. Students had standing even though a large

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 group of people could claim injury [all who breathe air] b/c CT
will not deny standing simply b/c many people suffer the same
injury. To do so would mean that the most injurious and
widespread government actions could be questioned by nobody
 Redressability: will they get relief from the court?
• Northeastern Florida General Contractors v. Jacksonville:
SCT held that assn of contractors had standing to challenge a
local ordinance granting preferntial treatment to minority owned
businesses in awarding city contracts. CT held that the
contractors had standing b/c “in the context of a challenge to a
set-aside program, the “injury in fact” is the inability to compete
on an equal footing in the bidding process.”
• Linda R.S. v. Richard D.: SCT held that the mother of an
illegitimate child lacked standing to contest the
constitutionality of a state statute providing for public
prosecution of fathers who fail to support their children. State
courts had construed the statute as applying only to fathers of
legitimate children. Because the only effect of enforcing the
statute was jail time, the Ct held “the prospect that prosecution
will result in the payment of support can, at best, be termed only
speculative.”
• Simon v. Eastern Kentucky Welfare Rights Organization:
IRS interpretation of “charitable” made it easier for certain
nonprofit hospitals to obtain tax exempt status. Association of
nonprofits representing the poor sued b/c they were denied care
at nonprofit hospitals b/c of inability to pay.
○ ISSUE: whether the association had standing to sue the
IRS?
○ HELD: P’s allegation that b/c of IRS action, hospitals were
denying indigent people health services too vague a
connection to confer standing. Did not establish a
connection between hospital’s denial of care to the IRS tax
exemption. Injury must be fairly traceable to the
challenged action of the defendant and not the result of
the independent action of a third party not before the
court.
• Lujan v. Defenders of Wildlife, 1992: held that since remedy
would require the cooperation of federal agencies who were not
parties to the case, the injury was not redressable because a
court cannot issue a judgment against a non-party.
○ Prudential standing (limitations to confine courts to their proper
role in govt)
 Arguably within the zone of interest: APA 702 Legal Right Test (Assoc.
of Data Proc Services)
 Generalized Grievances (is harm indistinguishable from harm suffered
by a group?) Lujan
 Zone of Interest or Legal Right Test:
• APA 702 says “a person suffering a legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to
judicial review thereof.”

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 •
Limits APA standing to those whose interests were important to
Congress in formulating the regulatory scheme.
• Association of Data Processing Service Organizations,
Inc. v. Camp, 1970: P challenged ruling of Comptroller of the
Currency (D) that national banks could perform data processing
services for customers and other banks. Comptroller attacked
Associations standing to prosecute the suit. HELD: TO HAVE
STANDING MUST SHOW 2 THINGS: 1) A CONSTITUTIONLLY
SUFFICIENT INJURY AND 2) THAT THE INTEREST SOUGHT TO BE
PROTECTED BY THE COMPLAINANT IS ARGUABLEY WITHIN THE
ZONE OF INTEREST TO BE PROTECTED OR REGULATED BY THE
STATUTE.
 Generalized Grievances:
• Most often taxpayer cases. Should be addressed by political
branches, not courts.
• May not litigate the rights of a third party.
• Lujan v. Defenders of Wildlife, 1992: Sec of Interior interpreted
section 7 of Endangered Species Act to apply only to domestic
actions, two members of Defenders of Wildlife who had studied
species abroad claimed they would be injured by the rule. RULE:
person may not challenge and administrative regulation unless
he can demonstrate actual or imminent injury and redressability.
Injury would relate to their experience when traveling overseas.
Injury not imminent, and is conjectural.
• ARE THERE TIMING ISSUES?
○ IS RIPENESS AN ISSUE?
 Comes from “Case and Controversies”: if case brought to soon, there
is not yet an injury. Ex. Bringing case before regulation has been
enforced.
 APA 704 grants right to judicial review of “final agency action” for
which there is no other adequate remedy in court.
 Agency action ripe when adjudicatory process in the agency has
completely ended and agency has issued its order.
• Ohio Forestry Ass’n v. Sierra Club: Facts: Forest service
resource mgm’t plan adopted for nat’l forest. Issue: Whether
dispute was “ripe” for judicial review when dispute centered on a
mgm’t plan adopted by an A ? Rule: No, unripe for judicial
review. Rationale: Additional steps had to be taken before the A
could implement the plan (and cut down trees, in this case).
Also, petitioners would have opportunity to challenge the validity
of actions ultimately taken.
•
 May be ripe upon promulgation (before enforcement) if issues are FIT
for judicial review and party seeking review would suffer substantial
HARDSHIP if review were delayed until after enforcement.
• Abbott Laboratories v. Gardner, 1967: Amendments to the
FDCA req’d drug manufacturers to print labels & advertising with
the “established name” of the drug along with the “proprietary
name”. Parties sued claiming that the extra req exceeded the
authority granted to the FDA in the legislative stat. ISSUE:
Whether dispute between the parties was “ripe” for judicial

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 review when contested prior to enforcement action(s)? RULE: Yes,
“ripe”.
○ Rationale: 2 part inquiry: fitness of the issues for judicial
review AND hardship to the parties of withholding court
consideration.
○ “Fitness of the issues”: Here, appropriate b/c all parties
agree issue = purely legal issue. Also, this is “final agency
action” w/in the meaning of 5 U.S.C. § 704.
○ “Hardship to the parties”: Either way, the parties incur
cost (changing all labels, ads, etc. OR pay severe gov
penalties).
○ IS EXHAUSTION OF ADMIN REMEDIES AN ISSUE?
 704’s finality requirement
 Bennett v. Spear: Biological Opinion by agency is final because 1) iti
s the “consummation of the A’s decision-making process and 2) the
action is one from which legal consequences will flow (imposes legal
consequences on party or determines legal rights).
 Myers v. Bethlehem Steel
• Pre-APA case, 1938. NLRB charged co in engaging in unfair labor
practices. Company went immediately to court and sought to
enjoin admin proceedings because co’s operation were not in
interstate commerce and therefore not in NLRB’s jurisdiction.
• Said have to do this after admin process has been wound-up.
• Allows agency to apply its own expertise and create a record for
later judicial review.
 McCarthy v. Madison
• Involves prisoner seeking damages from prison authorities on
grounds subjected to cruel and unusual punishment. There were
procedures he could have followed, but it did not authorize
compensation to the prisoner. So court held he was not
required to invoke the grievance procedure before
coming to court.
• Reason for requiring litigant to first present his claim through
admin process in order to respect agency authority and to
effectively manage judicial resources.
• Notes circumstances when exhaustion might not be
appropriate
○ If it would prejudice availability of judicial remedies
(unreasonable delay, irreparable harm during admin
running its course, preclude a defense to criminal liability)
○ Kind of relief party is seeking review is unavailable at the
administrative level (McCarthy).
○ Futility Objection: p. 320. Shown agency is not genuinely
open to re-determining its view. Very hard to show.
○ Agency reaches a final decision in terms of court’s view,
but could be appealed to a higher level.
 Darby v. Cisneros, 1993: exhaustion is required only of those remedies
expressly reqired to be exhausted by sttaute or when agency rule
requires appeal before review and when the administrative action is
made inoperative pending that review. If 704 is met, no further
exhaustion is needed.
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 ○ IS MOOTNESS AN ISSUE?
 moot if there is no longer a live controversy between the parties.

QUESTION 6: WHAT IS THE STANDARD FOR JUDICIAL REVIEW?

of review. First must ask ourselves a few questions:

estion of Fact?
events and inferences which presuppose applicable standards of law. (O’Leary v. Brown Pacific Mason)
d statutory interpretations
tion?
say?
cted? (More people = Rule-making)
individual basis? (More individual in nature = adjudication)
down, more likely Rule-Making.
ting facts presented, more likely adjudication.

e hearing on the record?

nce on the recod standard
ricious standard
e “on the record” language? (Dominion Energy)
nce (706(2)(e))
ricious ((706(2)(a))

or “hearing” exist in statute, that in itself ambiguous, so use Chevron.

terpretation of the statute “reasonable”?)

706 applies to the case and which standard of review to use?

plies only to formal adjudication and formal rule-making (subject to section 556 and 557 of APA.
when, under traditional admin law principles, a party is entitled to trial de novo in reviewing court. Applies when
ature and agency fact-finding procedures are inadequate, or
ency are raised in a proceeding to enforce non-adjudicatory agency action (Citizens to Preserve Overton Park
applies to all agency action. Action should be set aside if it is arbitrary, capricious, an abuse of discretion, or oth
review govern over A&C if they apply.
rd on Review?
ad before it when it made its decision.
st evidence supporting agency’s decision.

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QUESTION OF FACT: RULE MAKING
○ FORMAL Rule-Making (SOR = Substantial Evidence on the record as a
whole)
○ Procedures require taking of E through adversarial proceedings involving
testimony/X-exam, and initial or recommended decision by an A official,
followed by an opportunity to appeal the decision to the A head on the basis
of the record. (APA §556, §557).
○ DOES A’s action comport with SUBSTANTIAL E RULE (§706 (2)(e))
 “A court shall hold unlawful and set aside A action unsupported by
substantial E in a case subject to §556 or §557.”
 “Substantial E” = more than “a mere scintilla”…otherwise defined as:
“such relevant E as a reasonable mind might accept as adequate to
support a conclusion.”
 Court performing “substantial E” review must look at the WHOLE
record, not only the E supporting the A decision. (Universal Camera).
 When A’s determination based on credibility of Witness’s, the A’s
decision is entitle to great deference. (Universal Camera).
 IS THE A DECISION SUPPORTED BY SUBSTANTIAL E ON THE RECORD AS
A WHOLE? (Universal Camera).
• If “yes”, Agency fact-finding upheld.
• When A reverses finding of the ALJ, that reversal must be taken
into account in deciding whether the A decision is supported by
“substantial E.” (Universal Camera).
 TIP: [REMEMBER, what counts as “evidence” here? ONLY the
evidence in the record, no extemporaneous or extraneous
docs,etc.]
○ INFORMAL Rule-making
○ Requires notice in Federal Register, opportunity for interested
persons to comment on proposed A action, issuance of a
concise/general statement of the A’s action’s basis and purposes.
(§553).
 “Notice”: give notice to public and must contain § 553(b)
 “Comment”: § 553(c) requires agencies to provide opportunity for
written comment (not necessarily oral hearing)
 “Publication”: § 553(d) substantive final rule must be published at least
30 days BEFORE it becomes effective. Often contains “preamble.”
 TIP: However, the Notice & Comment process has become
somewhat burdensome, leading one court to opine that the
process has led to “ossification of the legal process.”
○ Substantial E Rule §706(2)(a)
 Courts shall hold unlawful and set aside A action that is “arbitrary,
capricious, OR an abuse of discretion.”
 IS THE A ACTION “ARBITRARY & CAPRICIOUS”?? (§553)
• Is the conclusion based on a consideration of the relevant factors
(including the alternatives to the A’s proposal) AND without clear
error of judgment and applying the correct legal standard ?
(Overland Park).
○ YES: A fact-finding upheld.
○ NO:
 Relevant factors = remand
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  Clear error of J=reversed
• When applying test, certain factors must be considered
(State Farm):
○ Did A rely on factors which Congress did not intend for it to
consider ?
○ Did A entirely fail to consider an important aspect of the
problem?
○ Did A offer an explanation for its decision that runs counter
to the E?
○ Was action so implausible that it could not be ascribed to a
difference in view or the product of A expertise?
• A must also proscribe paper hearing requirement (Nova
Scotia Foods):
○ A must disclose the E and analytical documentation relied
on in proposing a rules to allow for informed and effective
comment
○ A must explain grounds for its decision(s).
 LOOK TO SEE IF LOWER CT REMANDED TO STATE Agency FOR
FAILURE TO FOLLOW PROCEDURES NOT INCLUDED IN APA OR
IN ENABLING STATUTE…this prohibited by Vermont Yankee.
 Vermont Yankee: This the case where A R-making IS arbitrary
and capricious; however exempted from §553 ???
• Substantive legislative rule which grants rights, imposes
obligations, or produces other significant effects on private
interests are not exempted.
• Interpretive rules are exempted from notice and comment R-
making
 TIP: **Make argument its really a LEGISLATIVE rule under guise
of one of the “exceptions”; therefore, its invalid**.
 Test: AHA v. Bowen, Has the “interpretative R created rights of
obligations?”
• If “yes”, then is a legal rule. However, this test appears to be
somewhat nebulous.
• A better inquiry is “Is the newly promulgated “interpretative R” a
necessary ingredient in enforcement ?” or does it simply “clarify
existing legislative R”? American Mining Congress v. U.S.
Dept. of Labor
• these are R’s that merely clarify and explain existing law and
regulations
○ Hoctor v. USDA (big cat, 8ft. fence) Imposition of
requirement was arbitrary; therefore, when A’s base rules
on arbitrariness, they are legislating and thus require
notice and comment.
○ Use Legal Effect Test to differentiate b/t “interpretative
rule” and “legislative rules”. Legislative rules directly alter
the legal rights of the public…contracts with
interpretations and policy statements that merely describe
the MANNER in which the A intends to act in the future.
SEE LINCOLN v. VIGIL…allocation of funds = policy
b/c from lump sum appropriation.
 To determine the interpretive role (American Mining), ask:
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 •In absence of rule, does any legislative basis for enforcement
exist?
• Did the A publish the R in the Fed. Reg.?
• Did the A explicitly invoke its legislative rule?
• If any to ANY OF THESE = YES, then Rule is “legislative.”
 Statements of policy are exempted from notice and comment
rulemaking because allows A to announce its tentative intention for the
future without those comments becoming binding in nature.
• To determine “If policy statement”, (American Bus), ask:
• Is there a present effect? (statement of policy may not have
present effect)
○ NO: Does the Rule leave the A free to exercise discretion?
○ If yes: The statement is a statement of policy.
 RULES OF AGENCY ORGANIZATION (procedure or practice) are
exempted from “notice and comment” requirement.
• These rules that ensure the A retains latitude in organizing its
internal operations.
• To determine if a rule is “procedural” (ATA v. DOT), ask:
○ Does A action encode a substantive value judgment or put
a stamp of approval/disapproval on a given action?
○ If NO: Rule = procedural.
○ *****IF AGENCY ACTION DOES NOT FALL INTO AN EXCEPTION, AND is
ARBITRARY AND CAPRICIOUS, THE RULE MUST BE SET ASIDE****
○ QUESTION OF FACT: ADJUDICATION
○ FORMAL Adjudication (§§554, 556, 557) (SOR = “Substantial E on the
record as a whole”)
 Requires the submission and consideration of facts, arguments, offers
of settlement, or proposals of adjustment when time, nature of
proceeding, and public interest permit, and to the extent the parties
are unable to determine a controversy by consent, hearing, and
decision. §554
 Under Formal adjudication, parties are entitles to a reasonable
opportunity to submit for consideration proposed findings and
conclusions, exceptions to the decisions, and supporting reasons for
decision. §551(c).
 A party is entitled to present his case or defense by oral or
documentary E, to submit rebuttal E, and to conduct X-exam. §556(d).
 IS THE CONCLUSIONS SUPPORTED BY SUBSTANTIAL EVIDENCE
ON THE RECORD AS A WHOLE? (Universal Camera)
• YES (upheld), NO (overturned/remanded or reversed)
• When A reverses finding of ALJ, reversal must be taken into
account in deciding whether the A decision is supported by
Substantial Evidence (Universal Camera).
 TIP: [REMEMBER TO PERFORM EX-PARTE ANALYSIS SINCE “FORMAL”].
○ INFORMAL Adjudication: (NOT governed by APA…so lacks the procedural
accoutrements of formal. DUE PROCESS supplements!!!)
 Requires notice in the Fed. Reg., opportunity for interested persons to
comment on the proposed rules by written submission, issuance of a
concise and general statement of the rule’s basis and purpose. (§ 553).
 IS AGENCY DECISION “ARBITRARY AND CAPRICIOUS”? §553

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 • Is the conclusion based on a consideration of the relevant factors
(including the alternatives to the agency’s proposal) & without
clear error of judgment & applying the correct legal standard ?
(Overton Park)
• Review is a narrow one; however, inquire must be “searching
and careful.” “Searching and careful” defined by SCOTUS in
Motor Vehicle Manufacturers v. State Farm. Defined as: Ct
can’t substitute its judgment for the A’s, A must examine the
relevant data, AND articulate a satisfactory explanation for
action including a “rationale connection b/t the facts found and
the choices made.”
• Function of the Court is to assure the A has given reasoned
consideration…a “hard look” is required. Greater Boston
Television Corp. v. FCC
○ YES (A fact-finding upheld)
○ NO
 Relevant factors (remanded)
 Clear error of judgment (Reversal)
○ WAS Agency ACTION VIOLATIVE OF DUE PROCESS? Property Interest
v. Private Interest?
 PROPERTY
• person clearly must have more than an abstract need to desire
the interest, must have more than a unilateral expectation. Must
have a legitimate claim of entitlement. (Roth).
○ TEST: If an external source, such as state law, creates
claim of entitlement to a gov benefit, property interest
exists.
 Claim of entitlement exists when law, custom, or
practice establishes that claims to the gov benefit
are evaluated under a definite set of criteria.
 Also defined by a functional definition where
property entails protection: “grievous loss test”
(Goldberg v. Kelly).
 PRIVATE INTEREST
• not merely freedom from restraint, but also right of the individual
to contract to engage in any of the common occupations of life.
• CAN include damage to reputation through defamation as long
as there is an alternation of the personal legal status (Paul v.
Davis).
• Due Process is essential “where a person’s good name,
reputation, honor, or integrity is at stake because of what the
government is doing to him.” WI v. Constantineau
• TIP: ESPECIALLY if facts involve STATE A action (b/c not
bound by APA) and/or Fed. A adjudication but not clear
whether formal adjud req’d.
○ Due Process clauses of the Vth and XIVth Amendments
prohibit federal and state governments from depriving an
individual of “life, liberty, or property without due process
of law.” (required only when a “relatively small number of
persons was concerned, who were exceptionally affected,

16
 in each case upon individual grounds.” Londoner v.
Denver. :
• 3-part balancing test for Private Interest (Matthews)
○ Strength of the private interest that will be affected by the
A action. (Stronger the interest is in being free from
deprivation, the more procedure required)
○ Risk of erroneous deprivation if additional procedure is not
afforded (and whether risk of erroneous deprivation will be
reduced)(Greater the risk of erroneous deprivation, the
stronger the claim is for additional procedures)
○ Public/gov interest in proceeding with no more process
than already offered, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural safeguard would create. (This
factor always favors gov minimizing process…used
to balance #1 and #2 supra).
• **Contrast Goldberg v. Kelly with Board of Regents v.
Roth**
○ In Goldberg v. Kelly, the claimant was denied AFDC
benefits and the state adopted procedures which allowed
for notice and hearing after a suit was brought challenging
the denial of benefits. Here, the claimant challenged the
denial on the grounds that there was no opportunity for a
personal appearance or presentation of E. SCOTUS held
that pre-termination hearing was required b/c termination
of aid pending resolution may deprive the claimant of the
very means to survive while the action is pending. After
performing the “balancing test” of Matthews, the Court
found that even though the gov had a legitimate interest to
prevent increase in fiscal and administrative burdens, they
were not outweighed by the claimant’s interest in this
case.
○ Dissimilarly, in Board of Regents v. Roth, the Court
found the claimant had no violation of due process. In
ROTH, the claimant was denied renewal of a teaching
contract with a state educational institution. The claimant
challenged the state’s action using the theory that he had
a constitutional right to a statement of reasons for non-
renewal and a subsequent right to a hearing on the
university’s decision. The Court examined the nature of
the claimant’s interest and found no personal interest
could be challenged. Upon examining the claimant’s
property interest, the Court stated that none existed here
because the claimant must “have a legitimate claim”
to the interest…must be more than an “abstract
need” or desire for something. SCOTUS found that the
claimant’s interest was not one of the “protected interests”
thus, no due process violation existed.
• TIP: Inquiry is whether the STATUTE establishes entitlement NOT
whether the party factually met the stat. requirements

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• **Exception to D.P. test: actions taken by gov.for
emergent purposes**
• ***Can D.P. be satisfied by post-deprivation remedies?
○ Person is denied a benefit or suffering a deprivation may
go to court to challenge the legality of the A’s action.
Then, if after a hearing and a determination of the facts,
the court finds that the A’s action was unlawful, it may
employ injunctive relief to cease the A’s action.
○ D.P. will be satisfied by post-deprivation remedies when:
○ Quick action is necessary
○ Pre-deprivation process is impractical
○ Post-deprivations remedies have been approved most
strongly when random and unauthorized tortuous conduct
by a gov. official deprives the victim of property or liberty.
• Did EX-PARTE COMMUNICATION TAINT THE A ACTION??
○ Is the A action “formal” or “informal”?
 § 554 (d) prohibits for most “formal”
 §§ 556,557 prohibit in “formal”
 If “formal”, ask: (PATCO)
• Was person an “interested person”?
○ any person who’s interest in A
proceeding is greater than the general
public
○ If YES, were the communications
relevant to the proceedings ?
• Relevant to the MERITS
○ If YES, did the communications taint the
proceedings? FACTORS:
 Gravity of ex-parte
communications
 Whether contacts may have
influenced the final decision
 Whether the party making
improper contacts benefited from
the final decision
 Whether the contents of the
communications were unknown to
the opposing party
 Whether vacation and remand
would serve as useful in this
instance
○ **If “informal”, ex-parte communications not banned;
however, may be challenged as violative of basic fairness.
○ Informal contact ok “…UNTIL notice of proposed
rulemaking issued…and may not take place b/t any agency
official or employee who is or MAY BE reasonably expected
to be involved in rulemaking process.” HBO v. FCC
 Overton Park req’s paper hearing for informal
rulemaking…thus ex-parte communications
inconsistent w/ that decision.

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  Anytime informal rulemaking involves conflicting
claims to a privilege of value, ex-parte
communications are banned. (ACT v. FCC).
 BUT, if A receives ex-parte communications before
notice of proposed rulemaking, no worries. In fact,
A’s have an interest in communications from entities
with which it interacts.
 Was the ex-parte communication by a government
official?
• A’s are often contacted by Exec. Branch
officials and members of Congress concerning
pending rulemakings and other actions
○ ONLY applies to rulemaking, not adjudication….§
554(d).

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QUESTION OF LAW (was the agency interpretation “reasonable”?)
○ A reviewing court shall decide all relevant questions of law, interpret statutory
provisions. §706. However, courts have long said that some questions of law are
not within the purview of the court and should be settled by agencies. In this
instance, courts defer to the agency’s judgment, overturning the A only if its legal
determination is determined to be unreasonable.
○ A question of law may arise under one or more of the parts of § 706:
○ Person may argue that the A’s rule or order is unconstitutional.
○ Personal may argue that an A’s rule or order is beyond the agency’s
statutory authority.
○ Person may argue that an agency’s interpretation of law within the rule or
order is incorrect.
○ Person might argue that an agency did not follow all the procedures required
by law (while the agency would respond that those procedures are not
required by law).
○ Most questions involve meaning of a statute.**
○ Statutory Interpretation
○ Sources to examine:
 Look to statutory language (textual)
 Legislative history
 Canons of construction
 Policy
○ Why Regulate something?
 Promote eco efficiency? Redistribute recources? Promote/reflect
democracy?
 When CL system attacked, statutory regime usually replaces it (ex.,
“New Deal”).
 Could be other motives for regulation (ex., environmental law
regulations may benefit producers in certain situations).
 Eco analyses:
• Market Failures
○ req’s regulatory action justified by normalization of the
market
○ Reg. “monopolistic” power (price & profit justifications)
○ Reg. allows for adequate info for consumers (Consumers
evaluating competing products justification)
○ “Collective action problems” (Individually rational behavior
• Less Secure Eco Grounds
• Redistribution
• Disadvantage/”caste”
○ DETERMINATION OF “REASONABLENESS” (Mead/Chevron)
○ 1st Must determine the Congressional grant of authority to the A
under Mead.
 Did Congress grant interpretative authority to A? (includes rulemaking,
adjudication, and other indication that the A was to fill the ambiguity
rather than a court)
• YES, (go to Mead step #2)
• NO (apply Skidmore deference examination and no
Chevron analysis)

20
 ○ Rules, interpretations and opinions of the Administrator are
NOT controlling, but SHOULD be used as guidance by the
Ct.
○ Deference for these opinions/interpretations based on
factors:
 Thoroughness evident in the A determination
 Validity of its reasoning
 Its consistency with earlier and later pronouncement
 All other factors giving A the power to persuade
○ Mead Step 2: Was the A interpretation claiming deference promulgated in
the exercise of that authority?
 Was there an actual adjudication or rulemaking procedure? Something
more than policy letters, enforcement guidelines, agency manual, etc.
• YES: Go to Chevron Step #1
• NO: Skidmore deference (see immediately in red)
○ Chevron Step 1: Has Congress spoken to the precise question at issue?
(i.e., is the congressional intent clear? Is it ambiguous?)
 TIP: Have to determine whether the statutory language being
interpreted is ambiguous, or whether the meaning of the provision is
clear using traditional tools of statutory construction.
• Textualist Argument
○ Fact of statute is clear/unambiguous (Scalia approach MCI
v. AT&T)
• Functional Argument
○ Use legislative History and other tools of statutory
construction. Courts should not rely on words alone
(Cardoza-Fonseca)
 If YES: Court and Agency must give effect to the
unambiguous intent of Congress.
 NO: Go to Chevron step #2
○ Chevron Step 2: Is the agency’s interpretation reasonable or permissible?
 TIP: [AZ Grocery principle: Agency must follow its own rules, can’t
depart from rule w/out R making procedure].
 If Congress left gap for the agency to fill, there is an express
delegation of authority to the agency. Thus, when challenge to an
agency’s construction of a statute REALLY concerns the wisdom of the
A’s policy, rather than the “reasonableness” of its choice within the
congressionally-created gap, the challenge must fail. In addition, if the
A’s interpretation is “reasonable”, it is binding on the Court, regardless
of the fact the Court may feel another interpretation would be superior
to that of the agency.
 Courts should not overturn an A’s determination based on policy alone.
When the question is truly one of policy and cannot be answered by
traditional methods of statutory construction, courts are then required
to give deference to the A’s opinion. However, A can ONLY prevail on
basis articulated by the A…not some new ad hoc rationalization in Ct.
 A’s have some advantages when compared with traditional
jurisprudence of the courts in interpreting a statutory scheme due to
the fact that political accountability and technical specialization are
relevant to interpretation. Also, this deference fosters judicial

21
 economy due to the fact that it reduces the disparity of federal law by
limiting the number of conflicts between judicial circuits.
 SCOTUS HAS NEVER INVALIDATED AN AGENCY DECISION HERE
UNDER STEP #2.
 EXAMINED UNDER “ARBITRARY & CAPRICIOUS” STANDARD OF
REVIEW
• If “YES”, Ct. upholds the A’s interpretation
• If “NO”, Agency action is unlawful.
 Quick review of Arb and Capr review:
• Does agency consider relevant factors?
• Did they make a clear error in judgment
• Did the agency’s interpretation change the policy?
• Is there a public interest? Reliance on parties against importance
of applying the policy.

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