Even more informal

Informal
Formal

Rule

Adjudication

553
Null set (556, 557)

555, Due Process

554, 556, 557

I. GENERAL GOVERNMENT STRUCTURE

A. Agencies not explicitly in Const: Necessary and Proper Clause Art. I, S8-18
i. Congr can create laws carrying into execution of foregoing powers, and all
other powers vested by Const.
ii. Pres shall take care all laws faithfully executed; no feasible way one person
could actually it all by themselves
iii. Pres has power to appt Officers (Art II, S2-2); Congr can vest Pres, Courts, or
Heads of Departments w/power to appoint inferior officers
II. GOVERNMENT POWER: FUNCTIONS AND INSTITUTIONS
A. Lawmaking Authority in the Administrative State: Delegation and Deference
i. Reasons Delegation is OK (Pwr from Congr Agency)
a. Changed Circumstances: Agency is Institutionally Comp to deal
w/changes and address quickly
b. Relies on expertise and training of Agencies.
c. Politically feasible: Allows Congr to pass the buck in limited way.
Some arg Pres is more pol accountable.
ii. Intelligible Principle: Always going to be discretion by Congr to Agencies,
has Congr provided an intel princ to guide agency actions? Is degree of
discretion so great as to create delegation of actual Legisl autho; or just discr to
make Congr mandate actionable? Ensures democratically decided guidance,
allows flexibility w/i agency as situations change. (American Trucking; JW
Hampton)
a. American Trucking (1999, p. 581): DC Cir remands to agency to decide
the principle w/more specificity. SCOTUS holds defeats purpose b/c Int.
Princ. is created by Congr. requisite for publ health and suff but not
more than necc is specific enough. Makes publ health paramount, so
cant do cost/ben analysis.
1. Stevens Conc: Just accept that Congr delegating legisl auth to
agencies, so long as are restrained by org stat
b. JW Hampton (1928, p. 603): Under Tarriff Act Pres can change rates
w/circumstances and rec of Tarriff Comm. Court wont look into whether

Commented [BJ1]: Create attack outline with:

1. Attack agency on Constitutional grounds
2. Attack agency on Procedural grounds (APA/Org Stat/DP)
3. Attack agency on substantive grounds
A. Evidentiary Review: Substantial Evidence (APA says
only for formal, but courts interp to apply to all evidence)
(Universal Camera)
B. Arbitrary and Capricious
i. Bounds of law: Is decision consistent w/ or allowed by
org stat (i.e. pwr del by Congr)?
Dovetails w/Proc Rev: attack statement of purpose
(Dole)
ii. Consistent with Evidence.

Congr is punting so long as prov. intel princ to guide the agency. Req
Congr to make dec, gives flex to agencies to enforce.
iii. Non-Delegation Doctrine: When court interp stat, construe narrowly and
reasonably so as to avoid any Const conflict. 1. Keeps creation of laws w/govt
arm answerable to people (Congr); 2. Must have Intel Princ; 3. Intel Princ allows
for proper judicial review.
a. Benzene (1980, p. 596): OSH Act reqs setting stds that most
adequately assure that no employee will suffer material impairment of
health or functional capacity even w/reg exp, and to do whats
necessary and appropriate to ensure safety and health. OSHA interp
safe as risk free. SCOTUS: No intel princ, must interp to mean
cost/ben analysis (relying on expertise and changed circumstances);
keeps w/i bounds of Const.
iv. Field Grimaud (justifying agency decision making power based on changed
circumstances, political passing buck and expertise/knowledge) J.W. Hampton
(as long as intelligible principle exists, delegation is fine) Schechter Poultry
(First time statute is struck down on delegation grounds fine delegating to
president BUT NOT FINE delegating to industry leaders in smoke filled room)
Yakus (last time case struck down for delegation reasonsStandards must be
sufficiently definite and precise)
B. Adjudicative Authority in the Administrative State
i. Reasons Delegation is OK (Pwr from Courts Agency)
a. Efficiency/Speed (e.g. workmans comp Crowell)
b. Expertise (CFTC, Crowell)
ii. Adjunct Theory: ALJs, juries, and magistrate judges all seen as adjuncts Art
III courts; special masters of particular areas of law or indiv making advisory
report to Art III court. (Crowell)
a. Formalist interp: All jud power to Art III courts, except for hist ajdunct
exceptions. NO MORE
b. Functionalist test: See Doctrinal Adjudicative Const Test.
iii. Doctrinal Adjudicative Constitutionality Test (CFTC v Shor 1986, p. 633)
a. Extent to which essential attributes of jud power shifted from Art III
courts to Agency
1. Std of Rev: Can be done de novo WRT law; subst evidence
WRT fact?
2. Breadth of juris: Only over claims arising under org stat
3. Kind of powers: juris/habeas. ALJs cant enforce, only Art III
courts can enforce

b. Origins and importance of right @ issue

1. Public or Private Right?: If govt one of parties, only in Art III
court (sovereign immunity).
2. If private right so integrally related to stat/reg regime, then
OK for ALJ
c. Congrs justification for the stat: Reasonable response to discrete
issue? Proper efficiency and deference to experts?
iv. Cases:
a. Northern Pipeline (1982, p. 640): Exceptional categories can receive
more extensive enforcement and trad Art III powers so long as there is
proper judicial review. All about bankruptcy and sep ALJ courts. Too
complex and time-consuming, dont want Art III courts to have to deal
with.
b. Union Carbide (1985, p. 643): Congress, acting for a valid legisl
purpose [under] Art I, may create seemingly private right so closely
integrated into public reg scheme as to be matter appropriate for agency
resolution w/lim involvement by Art III judiciary. FIFRA (insecticides) req
new cos to pay comp to old cos for cost of environmental eff study; if
disp, dec by arbitrator.
c. Crowell (1932, p. 638): So long as DP is followed w/i agency and Art III
courts retain jud review of qs of law, then delegation is not a problem
b/c more efficient.
d. Atlas Roofing (1977, p. 648): If public right, Congr can del to non-Art III
tribunal w/o jury, b/c those causes of action didnt exist historically and
up to Congr to create.
e. Granfinancieria (1989, p. 646): Congr may only deny trials by jury in
actions at law in cases where public rights are litigated; however,
publ rts can incl priv rts so intertwined w/reg program that become
publ. Otherwise, are priv rts guaranteed jury trial under 7 th Amend
C. Executive and Legislative Control of Government Administration
i. RULE: Each branch must act w/i bounds of Const powers, if govt action alters
legal rights/duties/relations, then is legislation and must go through Art I, Ss 1,7
processes. (Chada)
ii. RULE: Congr can restrict POTUSs ability to remove exec off, i.e. for cause
(Morrison, Free Enterprise Fund)
a. BUT: Congr cannot aggrandize self and retain control over removal
(Myers, Bowsher, Morrison)

b. AND: Congr can ONLY restrict POTUSs power of removal or of exec off
completely accountable to POTUS. (Free Enterprise Fund)
iii. Cases
a. INS v. Chada (1983, p. 652): Actors w/i each branch must act within
bounds of Const powers. If something alters legal rights, duties, or
relations (i.e. has real-world impact), then is legisl and Congr must go
through Art I, Ss 1, 7. By retaining right of either house to veto AGs
deportation exception choices, Congr was self-delegating; undermines bicam and therefore unconst. INVALIDATES ALL CONGR VETOES
1. Powell concurrence: No need to invalidate all Congr vetoes, just
this one b/c is really a judicial review role (as opp to Majs interp
as Legisl role)
2. Whites dissent: Legisl veto is essential mod pol tool, NOT legisl
power, is wholly auth by spec stat made through legisl power
b. Bowsher v. Synar (1986, p. 668): Following Chada, abt sep of powers.
Formalist opinion: Const only allows Congr to remove exec off through
impeachment and conviction, therefore any attempt to expand removal
powers is undue influence
a. Step 1: Can interp as either Exec or Legisl?
b. Step 2: Does action @ issue violate sep of pwrs under both
functions?
c. Myers (1926, p. 733): Exec Off must be accountable to POTUS, POTUS
needs power of removal to ensure faithful execution of laws (control
subords). Any limitation by Congr to approve removal is unconst.
v. Humphreys Executor (1935, p. 736): **The case that makes
independent agencies possible** Congr limits POTUSs power of removal
for FTC only for ineff, neglect, or malfeasance, i.e. for cause not at
will. Roosevelt says firing only for pol disagreement. SCOTUS: Myers only
applies to purely Exec off, FTC is quasi-judicial (triers of fact when
violations) and quasi-legisl (Congr del some legisl auth to ID antitrust
cases).
1. Not sustainable, see Scalia in Whitman: lawmaking v legisl.
Agency lawmaking and adjudication are part of executive
function
d. Morrison (1988, p. 738): Act created indep counsel to investigate
POTUS. AG invest, if bad appoint 3-person panel from DC Cir appt IC
(inferior off can be appt by courts under Art II, S 2, Cl 2). AG can only
remove for good cause. Test (ish):

1. Is Congr aggrandizing its own power? (e.g. Bowsher and

Myers)
2. Does legisl subst impede POTUSs ability to execute? (e.g.
Humphreys and Morrison) How core to POTUSs functions is
restr? (e.g. SECSTATE, SECDEF, AG, etc.)
3. In Morrison for cause is OK b/c need indep invest; worry is
creating insulated agencies free from complete control by
politics
e. Free Enterprise Fund (2010, p. 721): Stat creates PCAOB to reg
accounting ind. SEC appts PCAOB. Issue is two-layered insulation, b/c SEC
only removable for cause, and PCAOB only removable for cause => no
accountability/control by POTUS b/c cant interp for cause him/herself.
III. GOVERNMENT PROCESSES: ADMINISTRATIVE MECHANISMS
A. General Questions/Concepts
i. How do agencies actually do stuff?
ii. What constraints will be put on agencies to replace those traditionally on 3
branches?
a. Statutory constraints on agencies: APA and Org statutes
b. Other Const constraints on agencies: Indiv rights and Due Process
B. Fundamental Procedural Categories
i. Private v. Public Rights; Adjudication v. Legislation: Londoner and Bi-Metallic
a. General v Particular; Making law v Applying law; Prospective v
Retrospective
b. Londoner (1908, p. 35): Adj/Hearings (Priv Rts): good at resolving
discrete issues, cabined/delineated to part prob; fact-specific + focused,
not good in pol process DP RIGHTS. Est that 5th/14th Amend re DP for
adjudications.
c. Bi-Metallic (1915, p. 39): Legisl (Publ Rts): Broad policy choices
affecting large # all the same NO DP RIGHTS. Est dist b/t Adj and Legisl
DP rights.
ii. Intro to APA
a. Rulemakings Basic Requirements
1. S 553(b): General Notice (publ in Fed Register)
2. S 553(c): Poss opp to Hearing (written submission too)
3. S 553(c): Statement of Basis and Purpose

Commented [BJ2]: Pull up top into larger general

discussion of all the provisions, whether theyre still
relevant, etc.

b. Formal Adj Basic Requirements

1. S 556(b): Impartial ALJ not involved in creation or enforcement
of policy @ taking of evidence and @ hearing
2. S 556(b): Notice
3. S 556(d): Burden of proof w/govt
4. S 556(d): Right to oral hearing
5. S 556(d): Cross-exam only for full/true discovery of facts
6. S 556(e): Decision based solely on the record
7. S 557(c)(3)(a): Statement of findings and conclusions, must
explain reasoning for findings/conclusion (Reasoned Elaboration)
C. Formal Adjudication
i. When is on-the-record hearing required?
a. RULE: Formal adj can be very flexible, courts can only hold agencies to
what is in the APA. (Citizens Awareness Network, Vermont Yankee)
b. RULE: If Congr doesnt say on the record, agency has discretion to
decide if formal adj or informal adjapplying Chevron deference
(Citizens Awareness Network, Dominion Energy)
c. RULE: Cant req disc/cross-exam, but agency must explain why denied
(Citizens Awareness Network, Seacoast)
1. SUB-RULE: When making decisions, agencies must provide full
explanation of reasoning to allow for proper judicial reviewcant
just affirm ALJ opinion. (Armstrong)
d. RULE: Initial licensing hearings are exception under APA, dont req onthe-record hearings. (Seacoast, Citizens Awareness Network)
e. RULE: Competitors dont have standing under APA to attend hearings,
so up to agency to decide if will allow. (Envirocare)
f. Cases:
1. Citizens Awareness Network (2004, p. 262): NRC changed
procedure for getting licenses for nuclear plants to be more
informal, w/o mand disc or cross-exam. CAN sues b/c worried that
wont have ability to properly challenge nuclear plants
information if not required to disclose everything. Court holds
cannot force agency to do more than in APA. APA doesnt req
discovery; APA only req cross-ex when necessary to disc full facts.
Courts maintain jud review of agencys granting/denying of crossex.

2. Seacoast (1978, p. 270): Nucl plant wants to discharge

superheated water into Gulf, applied for permit. Initially granted,
then denied after publ hearing. Apply to EPA Adm, who reverses
and grants. Court holds that if lang of stat is ambig, then assume
Congr meant on-the-record hearing (OVERRULED). Written doc
not publ hearing; remanded to decide if denial of cross-ex was
appropriate.
3. Dominion Energy (2006, p. 272): Nucl plant applies for same
license as in Seacoast. EPA denies app and evid hearing on admin
review. Court holds that when org stat must say on-the-record,
no longer presume like in Seacoast. If lang ambig, then courts
defer to agency b/c Chevron.
4. Armstrong (1993, p. 283): CFTC affirmed decision of ALJ as
substantially correct and didnt issue own opinion. Court says to
ensure intelligent jud review agencies must provide full
explanation for decisions. (Reasoned Elaboration)
5. United Church of Christ (1966, p. 301): FCC doesnt allow any
viewers into hearing about renewed licensing for racist TV
channel. SCOTUS: standing is practical and functional matter
ensuring only those w/genuine and legit interest participate
all viewers satisfy req. Cant req all viewers go in, but remand to
FCC to det how to allow some groups in.
6. Envirocare (1999, p. 297): Nucl waste cleaning co is first to get
license, 3 new cos given licenses later on under less restrictive (i.e.
costly) procedures. Envirocare sues b/c werent allowed to
participate in hearings for other cos. SCOTUS: competitors dont
have standing under APA, so is up to agency to decide if theyll
allow them in.
ii. Ex Parte Communications
a. Rule: All communications between the agency adjudicator (and staff)
and any interested party regarding the contents of a case must be either
on the record, or placed onto the record after the fact. Ensures all parties
have a chance to comment, that is an impartial adjudicator, and that
agency decision is solely on information on the record.
b. Cases:
1. Professional Air Traffic Controllers Org (PATCO) (1982, p. 342):
Reagan Admin trying to bust unions, FLRA fires all PATCO
members (provision of act WRT strikes). DC Cir set to rev on
merits, then info on ex parte comms revealed: w/ AFL-CIO leader,
FLRA GC, and SECTRANS. All were int parties, discussing matters

related to case, and not disclosed on the record (req of S 554).

BUT: none of the meetings affected decision, so while bad, wont
vacate agency decision (no harm no foul).
2. Pillsbury (1966, p. 362): FTC files anti-trust suit against Pillsbury,
interp org stat contrary to how members of Congr want so hold
Congr hearings. Chairman of FTC disqualifies self from dec in
agency adj b/c forced to discuss case w/int party (Congr) off the
record. Really about ensuring theres a neutral, unbiased arb, b/c
in hearings forced to take side and defend agencys position.
Court vacates FTC dec b/c other comm members should have
recused; new comm members OK to dec b/c enough time passed.
3. Portland Audubon (1993, p. 702): White House staffers
pressuring POTUS-appointed environmental comm to allow
business practices harmful to environment. Court holds that WH
staff or even POTUS cant cont agencies off the record b/c theyre
interested partieshave pol agenda. OK to restr b/c quasi-jud
role, and b/c POTUS can still pressure w/brief on record, press
conf, etc.
D. Informal Rulemaking: Notice-and-Comment Rule-making (APA Section 553)
i. Rule (Notice): Court will look at the final rule, draft rules, and the comments
received, and decide if an informed party reasonably could have foreseen the
final rule from the original draft and the comments. (NRDC v. EPA)
ii. Rule (Opportunity to Comment): An agency must share any data upon which
it bases its decision in the rule-making, because an inability to comment on the
data is equivalent to not having an opportunity to be heard. (NovaScotia) The
statement of basis and purpose (concise and general statement) must indicate
1) the major issues of policy raised in proceedings; and 2) explain why the
agency decided to respond to these issues as it did. (Independent Tanker Owners
v. Dole, NovaScotia) The statement of basis and purpose has to connect the rule
to the statutory purpose (Inedpendent Tankers) and the comments on the
record (NovaScotia).
a. Must know what the agency is thinking
b. Must know what data agency relied on
c. Must actually listen to and address the major/significant comments
provided
iii. Rule (ex parte comm): Must docket any ex parte communications after the
NRPM has been issued if you relied on it for your decision. (HBO v. FCC)
OVERRULED BY VT YANKEE.
a. Sub-Rule: HOWEVER, the APA doesnt separate the functions of the
agency in rulemaking, so as long as the organic statute doesnt do so,

then communications within the agency regarding a rulemaking are not

considered ex parte. (United Steel Workers)
b. Sub-Rule: ALSO, communications by POTUS or staff are also not
considered ex parte, b/c intra-executive branch and agency is politically
accountable to POTUS. Same for Congress, b/c politically accountable to
Congress. (Sierra Club v. Costle)
iv. Rule: Court cannot impose more procedures on an agency than identified in
APA or organic statute. (Vermont Yankee)
v. Cases:
a. NRDC v. EPA
b. NovaScotia
c. Independent Tanker Owners v. Dole (1987 p. 161)
d. Sangamon Valley TV Corp (1959, p. 242)
e. HBO v. FCC (1977 p. 243)
f. United Steel Workers (1980 p. 255):
g. Sierra Club v. Costle (1981, p. 707):
h. Vermont Yankee (1978, p. 120):
E. The Other Quadrants (Informal Adjudication and Formal Rulemaking) & Outside the
Quadrants (Yet-More-Informal Rulemaking)
i. Informal Adjudication
a. Rule: The limit on court-imposed procedures to those required by APA
or organic statute from Vermont Yankee extend to informal adjudication.
(PBGC v. LTV)
b. Rule: APA Section 555(b)s requirement for a response and explanation
within a reasonable time to any matter presented to it extends to a letter
requesting specific agency action. (Friends of the Bow)
c. Rule: Under APA Section 555(e), when a written application, petition,
or other request [is] made in connection with any proceedings is denied,
an explanation of the agencys decision is required. (Roelofs)
ii. Formal Rulemaking
a. Rule: An agency is only required to have formal rulemaking if the
organic statute says on the record after opportunity for a hearing.
(Florida East Coast Ry)
iii. Yet-More-Informal Rulemaking
a. Exceptions to APA Section 553 (p. 1410)

(A) Interpretive Rules, policy statements, internal housekeeping

rules/procedure
1. Interpretive rules: Spells out a duty fairly encompassed
within the regulation, and must be consistent with
purpose and meaning of regulation. Cannot impose new
rights/duties. Does not carry the force/effect of law,
because the law already exists and this is just interpreting
pre-existing rules. Only useful for an on-point rule that
hasnt previously been interpreted. (Air Transportation
Association v. FAA)
2. Policy statements: 1. Does it have mandatory language
(must, shall, etc.)? 2. Does agencys practice under policy
treat as binding? (General Electric v. EPA)
3. Internal Housekeeping: uncontroversial and intuitive
(B) Good Cause exceptions: impracticable, unnecessary, or
contrary to the public interest.
1. Rule: Will be interpreted very narrowly. Public
interest only if risks outweigh delay. Unnecessary only
refers to minor rules. (Utility Solid Waste)
F. The Choice of Policymaking Mode
i. Rule: Choice of policymaking mode is left, practically, to the discretion of the
agencies. Courts will not interfere. (Chenery I+II, Bell Aerospace)
a. Chenery I: Public Utility Holding Company Act of 1937, trying to
address companies that were too big (trust-busting). SEC policy was to
allow companies to reorganize voluntarily, first. Chenery does, but then
start buying up stock in the new companies, and SEC says cant do that
b/c defeats purpose. Based legal argument on CL (unfair b/c defeats
purpose and insider trading), but fails on CL argument.
b. Chenery II: Company goes right on subverting, so SEC comes back with
reinterpretation of organic statute. Gives agency power to do whats fair
and equitable after companies suggest the voluntary reorg. Congress
made SEC arbiter of fair and equitable in context, therefore if we say so
its law. Court upholds. Differences b/t doing this as adjudication vice
rule:
1. only input from 1 party, not many
2. retroactive v prospective: now Cheneries are told something
that wasnt illegal when it was done is illegal now.
3. Everyone still knows, and courts will defer to agency to choose
which mode.

c. Bell Aerospace: Courts must defer to agencies when choosing

policymaking mode; however, might be a case where court could be
required to tell agency to do a different one, but this not it.
G. Constitutional Due Process as a Constraint on Adjudicative Procedure
i. Rule: To decide when Due Process is required:
1. There must be a deprivation of life, liberty, or property. (Roth, Perry v.
Sinderman) Usually established by state law (except where federal law
creates right, e.g. Goldberg and Matthews for entitlements as new
property), but Constitution establishes Due Process procedures.
(Loudermill)
2. If deprivation, then to decide if pre- or post-termination hearing
required, do a three-part balancing test. If for private interest, then
before; if for government, then after. (Matthews v. Eldridge, Goldberg v.
Kelly)
1. How is the private interest effected? How much harm if error?
2. Likelihood of erroneous deprivation and value of substituted or
added procedure?
3. Government interest: money and time
ii. Rule: Due Process doesnt require full trial, but does need some combination
of the following. The more the above test leans towards the private interest, the
more robust hearing is required; the more it leans towards the government
interest, the less robust hearing is required.
a. Notice: to respond on the merits
b. Oral Presentation of witnesses and arguments
c. Cross examination: need to challenge credibility and evidence
d. Right to have an attorney present
e. Decision with reasoning based on law and the record
f. Impartial/unbiased adjudicator to ensure fairness. Can be from agency
but cant be part of earlier determination with respect to claimants
rights. (Goldberg v. Kelly)
IV. JUDICIAL REVIEW AS A CHECK ON AGENCY POWER
A. Review of Factual Determinations
i. Rule: Substantial evidence review requires a look at the whole record to
ensure none of other sides evidence completely undermines or discredits the
evidence supporting the agencys side. (Universal Camera) Review of Agency

Heads decision, not ALJ, b/c agency head is to whom Congress delegated
authority (courts will review agency heads decision if disagrees with ALJ).
(Penasquintos)
ii. Rule: Limit to deference to the agency is when they are manipulating the facts
in an adjudication to rewrite the rules/standard. (Allentown Mack)
iii. Rule: If there is no substantial evidence to back up an agencys decision in a
rulemaking or other action, then it is arbitrary and capricious, so the Universal
Camera standard applies to all agency action. (ADAPSO) Courts will manipulate
arb+capr and subst evid standards to achieve their goal.
B. Beyond the Facts
i. Early Deference Modalities
a. Rule (Hearst/Packard Deference): Is it pure question of law (courts) or
application of law to facts? (Hearst) Chevron
1. Specificity: Applying to all people or entities everywhere?-->
Law (Packard)
2. Broadness: Applying to specific people or entities?
Application (Hearst)
3. How much did Congress intend to defer to agency?
4. How much experience does agency have?
b. Rule (Skidmore Deference): For non-binding/unofficial agency actions,
courts will make a case-by-case determination and use agencys ruling in
their decision if it is persuasive (power to persuade). Factors to
consider: thoroughness of agencys determination, validity of its reasons,
consistency with its previous determinations. Agency expertise, and
whether second-guess because not well-reasoned. Mead
c. Rule (Review of Policy): Arbitrary and Capricious review applies for
substantive review of policy decisions. When organic statute/APA doesnt
require agencys decision to be based on a record, court will review in
one of two ways: 1. Agency can pull together record on its own and
explain its reasons for the determination; 2. Or court will examine the
decision-makers to establish a record and reasoning. (Overton Park)
StateFarm
ii. Modern Modalities
a. Rule: To determine what kind of deference is given:
1. Has Congress delegated authority to the agency for rulemaking
or adjudication?

2. Has agency exercised the delegated authority through notice

and comment rulemaking or an adjudication? I.e. does decision
have binding force of law a la statute or Art III decision?
aa. If yes: Chevron/StateFarm
bb. If no: Mead/StateFarm
b. Rule (State Farm Hard Look): Arbitrary and Capricious when the
explanation for a rule is substantially lacking (not totally missing),
inadequate or need another/more grounds for it. Encompasses both
mediation b/t Congr/Agency and Agency/Facts; also check on Agencys
reasoned decision-making. Factors:
1. Does it rely on factors not intended by Congress (Dole)
2. Failure to consider important aspect of the problem
(NovaScotia, StateFarm)
3. Explanation counter to the evidence
4. So implausible that its not expertise or experience (Overton
Park)
aa. Implausibility of applying Congressional intent to
problem as explained by agency
bb. Rescission was all politics => arb and capr
5. Failed in reasoned decision-making (StateFarm, Overton Park)
c. Rule (Chevron Deference):
1. Step 1 (pure matter of law): Has Congress directly spoken to the
issue? Look at the language of the statute, and using traditional
tools of statutory interpretation is it clear or ambiguous?
aa. If clear, then thats the solution, and test agencys
decision against that. (Packard)
2. Step 2 (application of law to fact): If ambiguous, then is implicit
delegation to agency, so question is if the agencys interpretation
is reasonable. If its reasonable, then defer to agency. (Hearst)
A. Statutory interpretation
B. Policy interpretation. Essentially StateFarm arbitrary
and capricious review
3. Chevron (1984, p. 599): Carter + Reagan Admin interp source
as each emissions stack or each unit (factory), respectively. When
ambig and more than 1 interp, is policy choice; courts cant make,
must defer to Agency.

4. American Trucking: DC Cir said was unconst del of power b/c

unreasonable interp. SCOTUS reverses b/c agencys interp was
reasonableeven if not what DC Cir wanted.
5. Pre-Chevron question was whether amt of power del to Exec by
Congr was Const (side-stepped Bicamerialism?); Post-Chevron
quest is whether Exec has interp stat reasonably (pwr b/t Exec
and Court).
6. How much power shifts from Congress to agencies depends on
aggressiveness of judicial interpretation of Step 1
aa. MCI v. AT&T (p. 1047): Modify Scalia opinion. If
judges consider anything outside their own interpretation
as unreasonable, they can say language of statute was
clear and agencys interp doesnt fitavoiding deferential
nature of Step 2. Textualist interpretation.
bb. Brown v. Williamson (p. 1071): FDA regulation of
tobacco opinion, OConnor. Step 1: Proliferation of other
tobacco-specific regulation makes clear Congress did not
intend to implicitly delegate regulator authority to FDA.
Purpose of FDA is to determine drugs are safe, and then
either leave or remove from market; that is not what
would happen with tobacco, so clearly not in their
wheelhouse. Purposivist interpretation.
d. Rule (Mead Deference): Apply Skidmore deference: For nonbinding/unofficial agency actions, courts will make a case-by-case
determination and use agencys ruling in their decision if it is persuasive
(power to persuade). Factors to consider: thoroughness of agencys
determination, validity of its reasons, consistency with its previous
determinations. ALSO STILL DO STATEFARM ARB AND CAPR
C. Access to Judicial Review
A plaintiff must have constitutional and prudential standing to get into court. The action must
be reviewable and justiciable under the timing factors in Ticor.
Constitutional standing
Injury in fact
Substantive injury to you in the world, ex: Being denied procedural right.
Stigmatization is not an injury in fact (Allen), if you have a financial injury, that is
injury in fact (ADAPSO), Being deprived of an integrated education (Allen), Injury
must be IMMINENT (Lujan) Procedural and participatory injuries are not injuries in
fact (Lujan)
Subject to adjudication?
Adjust behavior?

Can find the right P with injuries in fact. Ex: If you get someone who has bought a
plane ticket to see the thing that might be killed, tour company who hosts tours
Can be BROAD right, must be injury to you. FEC v. Akins
Cant just be that it bothers you.
Fairly traceable to the conduct complained about
Must find PROXIMATE CAUSATION
Will the court be willing to credit the chain of events even with economic
evidence? If the decision will harm another partys business, causation
can be met ADAPSO
LIST args and counter args (what ELSE could have been done?)
Redressable by the court
If it's been caused by it, then a court order can redress it

Prudential standing
If there is a Citizen suit provisionAUTOMATIC PRUDENTIAL STANDING
No standing requirement outside of Article III (case in controversy)
Zone of interest test
When you're a business with injury in fact (not protected/singled out by Congress) when there's competition involved, easy to get prudential standing
Example of NOT MEETING zone of interest test - Postal workers trying to
keep out Fed Ex and UPS.
JUCITICIABILITY / Timing TICOR (need all three factors)
Finality
Must be final agency action for it to be reviewable under 706.
Rule or adjudication - final agency decision.
BUT when they start, theres no jurisdiction
What if you miss deadlines? Final procedurally, but you weren't heard
(appeal) - finality without exhaustion.
Exhaustion
MUST exhaust administrative resources (complain to agency first, then the
court)
WAIVER: Can't raise in court the things you fail to pursue in the
agency
Ripeness- Is the issue fit for judicial review?
Fitness
Final adjudication is fine - there's a record to review.
Final rule under 553 - gone through notice and comment. Can
challenge because there is final decision and record.
Not finished yet
o court will say not fit for judicial review because no
complete administrative record. Haven't seen how agency
will apply rules to you. Won't know what they're doing or
how.
Is there hardship associated with waiting for judicial review?
if the agency has done something that affects primary conduct and costs
money or changes behavior so that the impact is sufficiently direct and
immediate and irreparable.

Causation relationship should be evaluated here separately

(because the hardship question is important only if the courts action can
prevent hardship)
If they're finished then there's a hardship in waiting (pay this fine,
change your behavior, etc)
If they're enforcing - The only harm is that you'll have to spend
money and time on the litigation process.
Litigation costs is NEVER adequate hardship
Merely spending time/money to go through the administrative
process = not hardship. (Ticor Title)

o Trickiest: policy statements and interpretive rules

Issued a policy statement BUT haven't yet enforced: if they're adhering to policy
statement rules (no force of law, will be fleshed out in the future). Not fit for judicial
review.
IF TREATING IT AS FORCE OF LAW can challenge on procedural grounds, or
TIMING grounds
Not treating under force of law, will only get Skidmore, will be tough to get
into court
Reviewability
Rules (553) are going to be reviewable, only question is timing Abbot Labs (Final
rules can be reviewed by courts)
ADAPSO paying
LUJAN
For public interest association, as long as one member of the organization meets the
requirements for standing after adjudication, you can bring suit (United Church).
Exceptions: Heckler v. Cheney non reviewable
AGENCY DECISIONS NOT TO ACT USUALLY NOT REVIEWABLE
ONLY REVIEWABLE IF --- decision is part of a calculated effort to change a rule,
OR discriminating against class of people
Failure to issue rule is reviewable BUT WITH GREAT DEFERENCE
Court might say "you should make the rule" but probably no penalty if you dont
IF YOU ASK THEM TO ACT, THE AGENCY MUST GIVE YOU A REASON AS TO WHY
THEY ARE NOT ACTING Roelofs might be reviewable because of insufficient
denial