Admin Law Outline

(Fall 2012 / Textbook: Cass, Administrative Law (6th ed. 2011))

1.Accountability to Congress

a. Non-Delegation Doctrine
i. Standard: has Congress created an intelligible principle to guide the executive in
his execution of the law?
ii. Why are we concerned about delegation of legislative power?
1. We want to maintain separation of powers
2. We want laws to be enacted by people we elect, not field of independent
experts
3. We want Congress to write statutes with sufficient specificity so that people
will know if what they are doing is illegal
4. To allow for judicial review, court has to know whether someone is
complying with regulations or not, and court can only do so if its clear
what the regulations are

Constitutional delegations
J.W. Hampton Jr. & Co. v. United States (1928)
Facts: Congress passed Tariff Act of 1922 giving
the President the authority to revise certain tariff
duties whenever he determined revision to be
necessary to equalize the costs of production in
the United States and the principal competing
country.
Held: Tariff Act of 1922 is constitutional. Congress
had delineated an intelligible principle for the
President to follow. Moreover, the determination
delegated seemed so complex as to defy
legislators competence.
Whitman v American Trucking (2001)
Facts: Clean Air Act. Congress gave EPA power to
determine exposure levels for certain pollutants.
The EPA was supposed to set the level at a
number that was requisite to protect the public
health. EPA set exposure level for ozone at 0.08
ppm over an eight hour period.
Held: Statute has intelligible principle.
Interstate Commerce Commission Act of 1887
Interstate Commerce Commission to set "just and
reasonable rates" for railway transport. Held
constitutional.
Federal Trade Commission Act
Congress directed the agency to regulate "unfair
methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or
affecting commerce." Held to be constitutional
delegation.
Federal Communications Commission Act
Commission was to allocate frequencies as public
convenience, interest, or necessity requires. Held
constitutional.

Unconstitutional delegations
Schechter Poultry (US 1935)
Facts: Congress passed National Industry Recovery
Act (NIRA), as a result of which industry and trade
organizations were permitted to set standards
governing their industry or trade. The President
would then approve the code as long as: (1) the
association who created the codes impose[d] no
inequitable restrictions on admission to
membership therein and [were] truly
representative, and (2) the code was not
designed to promote monopolies or to eliminate
or oppress small enterprises and [would] not
operate to discriminate against them, and [would]
tend to effectuate the policy of the Act.
Held: NIRA violates non-delegation doctrine. The
Act delegated rule-making power to private
groups, and [s]uch a delegation of legislative
power is unknown to our law and is utterly
inconsistent with the constitutional prerogatives
and duties of Congress. The representativeness
and antimonopoly provisions provided only
minor restraints on the consent or scope of codes,
leaving the proponents of a code to roam at will
and the President to approve or disapprove their
proposals as he may see fit.

b. The Legislative Veto

i. Legislative veto = opposite of non-delegation doctrine (Congress is trying to retain
power rather than give it away)
ii. INS v Chadha (1983) The legislative veto is an unconstitutional retention of
congressional authority.
1. Facts: Chadha is British citizen of Kenyan origin who overstays his visa in
the US. INS Administrative Law Judge orders his deportation suspended.
This suspension is transmitted to Congress. House uses legislative veto
power written into the Act to override ALJs finding and order Chadha
deported.
2. Held: Legislative veto is unconstitutional.
a. Burger majority / formalist opinion:
i. When Congress legislates, it must do so through
bicameralism and presentment.
ii. The House, when vetoing suspension of deportation, took
legislative action.
1. Legislative action = action that has the purpose and
effect of altering the legal rights, duties and relations
of persons . . . outside of the legislative branch
iii. Therefore, Congress violated the Constitution by allowing
House to enact legislation without complying with
bicameralism and presentment requirements.
b. White dissent / functionalist opinion:
i. Whites position is that Congress is not taking legislative
action when it invokes the legislative veto and therefore does
not need to comport with the requirements of bicameralism
and presentment. This is not legislative action; rather, its a
convenient mechanism to facilitate the functioning of
modern government.
c. Powell concurrence:
i. Legislative veto is unconstitutional because House was
making adjudicatory determination. This is a narrower
grounds for finding the Act unconstitutional and would
preserve the legislative veto in other instances.
c. Other Means of Control
i. Appropriations
ii. Legislative Oversight

2.Accountability to the President

a. Appointments: the constitutionality of an appointment provisions turns on whether the
officer being appointed is a principal officer or an inferior officer.
i. If principal officers must be nominated by President and then appointed by
President with the advice and consent of the Senate. Art. II, Section 2.
ii. If inferior officer Congress can vest appointment power in President, heads of
department, or courts of law
1. How do you tell if person is inferior office or principal officer?
a. Edmond v. United States (US 1997) factor:
i. Whether the officer has a superior. Inferior officers are
officers whose work is directed and supervised at
some level by other officers appointed by the
President with the Senates consent.
ii. In Free Enterprise Fund v. Public Company Accounting
Oversight Board (US 2010), the court quoted Edmond v.
United States in assessing whether the appointment of the
officials who headed the Public Company Accounting
Oversight Board, which was not done by the President with
the advice and consent of the Senate, was constitutional.
Applying that standard, the Court in Free Enterprise Fund
held that the members of the Board are not principal officers;
they are inferior officers. The Boards work is overseen by the
SEC Commissioners, who are appointed by the President with
the Senates consent. For example, the Boards rules and its
imposition of sanctions on accounting firms are subject to
approval and alteration by the SEC. Moreover, members of
the Board are removable at will by the SEC Commissioners.
In other words, the Board members were held to be inferior
officers because they have, for their superiors, officers who
were appointed by the President with the Senates consent.
b. Morrison v. Olson (US 1988) factors:
i. Whether the officer can be removed by a high
executive branch official
ii. Whether the officer has only certain, limited duties
iii. Whether the office is limited in jurisdiction
iv. Whether the office is limited in tenure
v. In Morrison v. Olson, the statute at issue was one that
authorized independent counsels to investigate and
prosecute crimes by high-level federal officials. Under the
statute, an independent counsel was not appointed by the
President with the advice and consent of the Senate. Instead,
she was appointed by a panel of three federal judges. The
case arose when the target of an investigation by
Independent Counsel Alexia Morrison challenged the method
of Morrisons appointment on the ground that she was a
principal officer and, as such, could be appointed only the
President with the consent of the Senate. The Court in
Morrison rejected that argument, holding that independent
counsels were inferior officers. In so holding, the court
assessed four factors. First, independent counsels could be
removed (though only for good cause) by a higher executive
branch official, i.e. the Attorney General. Second,
independent counsels had only certain, limited duties:
namely, those of investigation and prosecution. Third, their
offices were limited in jurisdiction, reaching only certain
serious federal crimes by certain high-level federal officials.
Finally, their offices were limited in tenure; once a particular
investigation and any related prosecutions were finished, the

independent counsels office ended. In sum, the Court

classified independent counsels as inferior officers based on
the nature and scope of their duties and the fact that they
were removable by a high executive level official.
iii. If employee Constitution doesnt say anything about how they should be
appointed. Any body independent of the above, but not Congress, can do the
appointing (e.g. Civil Service Commission).
1. How do you tell if its an employee?
a. The test is whether the tasks are established by law, are significant,
the discretion thats exercised is significant, and the individual can
exercise independent, final authority. If that is the case, the person
is shunted up to officer land. Freytag v. Commissioner of Internal
Revenue.
b. Selection of employees can be done by exam.
c. Bulk of the civil service would fall under employee category
b. Removal
i. Congress may restrict Presidents power to remove an executive officer at will
(power established in Myers) as long as . . .
1. Theres no direct Congressional involvement in removal; Congress itself
cant be doing the removing. Bowsher. In Bowsher v. Synar, the Court held
that the Comptroller Generals exercise of executive authority, in
recommending budget cuts to the President in accordance with the
Gramm-Rudman-Hollings Act, was unconstitutional because the
Comptroller General was removable by Congress for reasons of inefficiency,
neglect, or good cause. Congress was therefore exercising influence over
the executive branch.
2. The restrictions on removal do not impede the Presidents ability to
perform his constitutional duty. Morrison v. Olson. In order to determine
whether the removal restrictions impede the President, the court must look
to whether the officer whose removal procedure is at issue performs a core
executive function. If so, then the
restrictions are more likely to be held
Core executive functions:
unconstitutional. On the other hand, if
prosecution, foreign policy,
the officer is not performing core
execution of laws, law
executive functions, then the removal
enforcement, seeing that laws
provisions are more likely to be upheld.
are faithfully executed
Morrison v. Olson is one such case where
the removal restrictions were found to be
Core legislative functions:
constitutional. There, the Attorney
legislation, investigating the
General could only remove the
impact of its legislation
independent counsel for good cause.
The Court upheld this statutory for cause restriction on the Executives
removal power because the restriction did not impede the Presidents
ability to perform his duties. The Court based its determination on the facts
that the independent counsel was an inferior officer . . . , with limited
jurisdiction and tenure and lacking policymaking or significant
administrative authority. The authority that the independent counsel did
possess was restricted primarily to investigation and, if appropriate,
prosecution of certain federal crimes. The independent counsel did not
have the authority to formulate policy for the government or the authority
to conduct any administrative duties outside of those necessary to operate
her office.
a. In a case after Morrison, the Court addressed whether Congress can
give an executive officer multiple layers of protection from removal.
The court said no, in Free Enterprise Fund. Under the SarbanesOxley Act, which created the Public Company Accounting Oversight
Board, members of the Board could be removed by the SEC only for
good cause. The SEC Commissioners, in turn, were themselves
subject to removal by the President only for good cause. The Board

members thus enjoyed two layers of good-cause tenure. The

Court held that the limitations prevented the President from holding
members of the Board accountable for their actions, thereby
violating separation of powers principles. The restrictions hampered
the Presidents ability to carry out his or her duty to take care that
the laws are faithfully executed.
c. Solutions for remedying faulty appointment/removal provisions
i. Appointments
1. If principal officer is being appointed improperly:
a. Make it so that appointment is done by President with advice and
consent of the Senate
b. Make the position more like an inferior officer
c. Limit the powers of the office so that they are solely advisory. Then
the person would not be an officer at all.
ii. Removal
1. If restrictions are not constitutional provision must be amended so that
removal can be done at will
2. If restrictions are constitutional then they may be upheld
3. Analysis to figure out whether executive orders are constitutional. Youngstown (Jackson
concurrence).
a. If Congress has delegated authority to act, then the President is not acting only with his
own authority but with the authority delegated by Congress. This is where Presidents
powers are at their highest ebb.
i. Example when President conducts a cost-benefit analysis of legislation
proposed by Congress.
b. Where Congress hasnt specifically legislated, and the President acts, the President relies
on his independent powers as well as any power that Congress may not have exercised in
which Congress and the President share powers.
c. If President takes action contrary to what Congress directs, the Presidents powers are at
their lowest ebb.
i. Example warrantless domestic wiretapping in Bush administration.

4.Administrative Action: Rulemaking vs. Adjudication

a. Overview
i. Three basic sources of administrative law: (1) Constitution, (2) Administrative
Procedure Act, (3) enabling statutes
ii. Due Process Constraints on Policy-Making
1. Londoner v Denver (policy-making by adjudication). When policy is made
on individual grounds, due process requires agency to hold
hearing to allow individuals to present their case.
a. Facts: Denver Board of Public Works had authorized a street to be
paved. Board simultaneously decided to assess the cost against
each property owner on the street in an amount commensurate with
the benefit conferred on each party, as determined by the Board.
b. Held: under due process clause, there should be no tax unless
theres an opportunity to be heard an oral hearing where
homeowners can put forward argument and proof.
2. Bi-Metallic Investment Co v. State Board of Equalization (policy-making by
rule). When policy applies to a class of people, very little process is
required.
a. Facts: Colorado Board of Equalization and the Tax Commissioner
increased value of all taxable property in Denver by forty percent.
No notice or opportunity to be heard was given to individual
property owners.
b. Held: Due process requirements in this case are minimal; agency
isnt required to have a hearing. Grievances can be voiced through
the legislative process.
iii. Administrative Procedure Act.
1. Definitions
a. Definition of Rule 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 describing the
organization, procedure, or practice requirements of an agency and
includes the approval or prescription for the future of rates, wages,
corporate or financial structures or reorganization thereof, prices,
facilities, appliances, services or allowances therefor or of valuation,
costs, or accounting, or practices hearing on any of the foregoing.
551(4).
b. Definition of Adjudication agency process for the formulation of
an order.
551(7).
2. What is required under the APA once we determine a policy is made by rule
or adjudication?
Informal
Formal
Rulemakin
APA 553
APA 556, 557
g
The agency must publish notice of rulemaking
A legislative hearing is held on a rule
in the Federal Register. This allows people to
after a notice is published in the Federal
send in comments to the General Counsels
Register. People submit an application to
office or for a lawyer to send a brief to the GC.
testify at the hearing. Its not an
The GC reads the comments and creates a rule
adversarial trial, but a legislative hearing.
based on all of the input. The rule is then
You present a brief or statement, offer
published in the Federal Register. It takes about comments, and get asked questions. The
30 days to implement.
rule is then published in the Federal
Register.
Adjudicatio APA 555(e) (notice and brief explanation)
APA 554, 556, 557 (like a trial)
n
Prompt notice shall be given of the denial in
The agency shall give all interested
whole or in part of a written application,
parties opportunity for the submission
petition, or other request of an interested
and consideration of facts, arguments,
person made in connection with any agency
offers of settlement, etc. An
proceeding. Except in affirming a prior denial or
administrative law judge will preside over

when the denial is self-explanatory, the notice

shall be accompanied by a brief statement of
the grounds for denial.

the hearing. All decisions are part of the

record and shall include a statement of
findings and conclusions, and the reasons
or basis therefor, on all material issues of
fact, law, or discretion presented on the
record, as well as the appropriate rule,
order, sanction, relief or denial thereof.

b. Policymaking by Rule
i. National Petroleum Refiners. The agency has discretion on whether to create
policy through adjudication or rulemaking
1. Facts: FTC issued rule that gas retailers have to post octane level of the gas
at the pump. The FTC issued this rule under the auspices of its mandate to
prohibit unfair methods of competition and unfair or deceptive acts or
practices. The idea is that low octane gas is bad for small precision
engines, so to protect cars and ensure that people dont overpay for highoctane levels they dont need, the octane level should be posted.
2. Held: Policy-making by rule here is okay. Court bases decision on policy
reasons (see chart below).
Policy Considerations in favor of Rule-Making
- Greater fairness to the regulated community. A rule is clear and puts everyone on notice. Avoids
subjecting one company to cease and desist process at the expense of others.
- Allows for efficient resolution of policy arguments. Policy arguments dont have to be rehashed in
each adjudication.
- Participation. As a matter of good governance, we want participation.
- It calls on a variety of parties to come in and take part in the proceedings, so it allows for agency to
draw on expertise in the community.
- Rule of law considerations: (1) greater certainty to the regulated community, (2) less likelihood of
retroactivity.
c. Policymaking by Order after Adjudication
i. Excelsior Underwear, Inc. Agency announced a policy by order but did not
apply it to the parties in the adjudication.
1. Facts: Campaign to elect union to represent workers at Excelsior
Underwear. Employer sent literature to workers about how terrible it would
be with union representation. Employer refused to give union the addresses
of its workers, so union couldnt respond to employers allegations.
2. Held: NLRB decides that Excelsior Underwear doesnt have disclose the
addresses of its employees, but in the future, employers will have to.
ii. NLRB v Wyman-Gordon -- Agencies can announce rules of general
applicability and future effect in adjudicatory proceedings as long as the
new rule is applied in the proceeding in which it is announced
1. Facts: Wyman Gordon refused to give out addresses of employees. NLRB
said that Wyman-Gordon had to give out addresses based on rule in
Excelsior. Wyman Gordon argued that abide by appropriate APA rulemaking procedures, so Excelsior rule is invalid.
2. Held: Supreme Court upholds decision by NLRB that Wyman Gordon must
hold election and must disclose employees addresses.
a. Fortas plurality: The later-in-time Wyman-Gordon adjudication was
lawful, even though the Excelsior one was not. In the Excelsior
decision, the agency announced a new rule but did not apply it to
the parties.
b. Black plurality: The initial Excelsior adjudication was proper and
hence it was proper for the Wyman-Gordon adjudicator to rely on it.
Policy Considerations in favor of Adjudication
- Tradition. In the common law system, we are accustomed to the role of adjudicators in setting

down policy determinations. Adjudicators set precedent that elaborates on the law. We are very
familiar with this role of adjudicators as policy-makers.
- Allows for flexibility.
Judge can define the rules in curtailed, limited fashion that applies to issues at hand w/o
having to anticipate the whole range of problems that might emerge in the wider realm.
Allows policy to be made incrementally based on specific facts. Policy can change course
depending on how facts play out rather than being bound by strict rule, which can only be
changed by difficult process.

iii. NLRB v. Bell Aerospace (US 1974) -- The court will give great deference to
the agency's decision to make policy through adjudication as long as the
affected party hasn't relied in good faith on agency's earlier decisions,
and as long as the policy doesn't impose new liabilities, or if the problem
is really complex to justify case-by-case development of a standard .
1. Facts: The NLRB had long interpreted the National Labor Relations Act to
exclude managerial employees from the Acts coverage. In the early
1970s, the Board reversed itself and held that managerial employees were
covered by the Act unless their participation in a labor organization would
create a conflict of interest with their job responsibilities. Under this new
understanding of the Acts coverage, the Board determined that buyers
working for Bell Aerospace were entitled to the protections of the Act,
including the right to organize and engage in collective bargaining. Bell
Aerospace petitioned for review of a Board order compelling it to bargain
with the union representing the buyers. Bell argued that the NLRBs
decision extending the Acts coverage to managerial employees was
erroneous and that, even if the Act could be construed to cover the buyers,
in light of prior Board decisions excluding buyers from the Acts coverage,
the Board should have engaged in rulemaking.
2. Held:
a. On the issue of the proper construction of the Act, the court held
that managerial employees are not covered by the Act.
b. On the issue of whether the Board must engage in rulemaking if it
decides that the buyers should be covered by the Act, the court held
that, the choice between rulemaking and adjudication lies in the
first instance within the Boards discretion. However, there may be
situations where the agencys reliance on adjudication would
amount to an abuse of discretion or a violation of the Act. Those
situations include where a regulated party has substantially relied
on what the agency determined in previous adjudications and where
the instant adjudication creates new liabilities. On the other hand,
where the problem is really complex, case-by-case development
through adjudication is justified.
iv. Summary of Adjudication: The decision whether to use rulemaking or
adjudication lies largely w/in the discretion of the agency. Courts are reluctant to
impose policy-making by rule or adjudication on agencies.

5.Rulemaking
a. Requirements of Informal Rulemaking
Informal
Rulemakin
APA 553 (notice, comment, concise general
g
statement of basis and purpose)
The agency must publish notice of rulemaking
in the Federal Register. This allows people to
send in comments to the General Counsels
office or for a lawyer to send a brief to the GC.
The GC reads the comments and creates a rule
based on all of the input. The rule is then
published in the Federal Register. It takes about
30 days to implement.

Formal
APA 556, 557
A legislative hearing is held on a rule
after a notice is published in the Federal
Register. People submit an application to
testify at the hearing. Its not an
adversarial trial, but a legislative hearing.
You present a brief or statement, offer
comments, and get asked questions. The
rule is then published in the Federal
Register.

i. How to know when agency is required to undergo formal rulemaking process? The
enabling statute will require the agency to make the rule on the record after
opportunity for an agency hearing. See United States v Florida East Coast Ry Co
(US 1973).
1. Vermont Yankee (US 1978) courts cannot impose procedural
requirements on agencies beyond the informal rulemaking
requirements listed in APA 553
a. Rationale: (1) intent of Congress; Congress intended for there to be
only two rulemaking procedures: formal and informal; (2) agencies
are in the best position to determine what the appropriate
procedure is for them in promulgating rules.
b. Facts: DC Circuit tried to impose additional procedural rulemaking
requirements on the Atomic Energy Commission. Supreme Court
reversed.
ii. Otherwise, agency is obligated to only comply with informal rule-making
procedures.
1. Notice (NPRM).
a. Policy reasons behind notice requirement (Small Refiner Lead
Phase-Down Task Force v EPA):
i. (1) improving the quality of rulemaking by allowing the rule
proposed to be tested by exposure to diverse public
comment
ii. (2) affording fairness to affected parties by giving them an
opportunity to express their views
iii. (3) allowing more effective judicial review of the final rule by
enabling the rules critics to develop evidence in the record
to support their objections
b. Chocolate Manufacturers Assn v Block (4th Cir 1985) Notice is
adequate if final rule is a logical outgrowth of the proposed
rule.
i. Facts: USDA managed a program that subsidized nutrition for
under-privileged pregnant women and mothers with children.
USDA and Congress become concerned about the
composition of the food supplements arranged for by the
program. Specifically, there is a concern about too much
sugar. USDA responds by issuing a proposed rule that would
limit the number of sugary items available through the
program. USDA eliminates chocolate milk in the final rule
after comments are received on the proposed rule.
ii. Held: Notice was inadequate. Final rule was not outgrowth of
the proposed rule b/c in the history of the program, milk was
included freely and there was no mention of chocolate milk
in the preamble to the proposed rule.

10

c. United States v Nova Scotia Foods Prods Corp (2d Cir 1977) Notice
has to disclose studies and data relied upon in drafting the
proposed rule
i. Facts: FDA promulgated a rule requiring all producers of
canned fish to heat the fish to a certain temperature before
canning to avoid spread of botulism. Nova Scotia fails to
comply, so FDA seeks injunction. Nova Scotia argues notice
was inadequate b/c it didnt explain the scientific findings
behind its proposed rule or explain how the heating
requirement would adequately deal with the risk of botulism.
ii. Held: Notice was inadequate. Court strikes the rule.
d. Sierra Club v Costle (DC Cir 1981) Ex parte contacts and late
comments that are of central relevance to the rulemaking
shall be entered into the docket with adequate time to
respond
i. Facts: EPA developed a rule to reduce the amount of sulfur
dioxide emitted by coal burning power plants. To develop this
rule, the EPA engaged in a hybrid rule-making process
required by the Clean Air Amendments of 1977. In addition to
the informal rule-making requirements set forth in APA 553,
the EPA provided an opportunity for hearings involving oral
presentations of data, views, or arguments. After the close of
the rulemaking proceeding, the Environmental Defense Fund
objected to: (1) comments filed after the close of the official
comment period, and (2) meetings between EPA officials and
various government and private parties interested in the
outcome of the final rule, all of which took place after the
close of the comment period.
ii. Held: EDFs objections were dismissed. Agency listed content
of the important comments in the record.
iii. Home Box Office v FCC (DC Cir 1977) If competing claims
to a valuable privilege [e.g. right to broadcast] are
involved, ALL ex parte contacts must be docketed
1. Facts: FCC was considering extending restrictions on
programming from subscription television to cable
television. These restrictions forbade subscription
television operators from broadcasting: (1) sports
events of the sort regularly carried on commercial TV
during the preceding two years, (2) feature films more
than two and less than ten years old, (3) series-type
programs, and (4) commercial advertising. In
response to objections against these restrictions, the
FCC opened up a new rulemaking proceeding to
reconsider the pay cable rules. The FCC ultimately
reenacted the rules largely in their existing form. The
plaintiffs in this case brought suit alleging that the
FCC engaged in ex parte contacts between the close
of oral argument and the adoption of the rule, when
the rulemaking should have been closed while the
Commission was deciding what rules to promulgate.
2. Held: remanded to the FCC with instructions to hold
an evidential hearing to determine the nature and
source of all ex parte pleas and other approaches that
were made to the FCC after the issuance of the first
notice of proposed rulemaking.
3. Why is court non-chalant about ex parte comments in
Sierra Club v. Costle whereas the HBO court was very
trouble with ex parte comments?

11

a. In Sierra Club, the agency actually did enter

the substance of what it considered to be
important comments into the record, which
was not what the FCC did. So not only is the
agency action less suspicious in Sierra Club,
but also the concerns about fairness and
availability of judicial review are alleviated.
b. In Sierra Club, some of the ex parte
communications were made between the
agency and other individuals within the
executive branch. The court in Sierra Club
appreciates that, in a rulemaking, the political
actors are actually constitutionally authorized
to supervise what the agency is doing and
influence the kinds of policies that are being
adopted by the agency.
c. Theres no valuable privilege at stake in Sierra
Club. The agency is setting general standards
there, whereas in HBO v. FCC, the agency is
action is more like an adjudication that effects
specific parties.

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4. Policy rationale behind recording ex parte

communications
a. Judicial review. Improves courts ability to
determine whether the agency was adequately
weighing the interests of all parties.
b. Opportunity for contestation. Public should
have ability to engage in back-and-forth to
come up with expert rule.
c. Due process concerns. Participants in the
rulemaking process should all feel like their
concerns have been responded to.
2. Comment. The public must be given an opportunity to comment orally or in
writing on the proposed rule.
3. Concise general statement of basis and purpose.
a. United States v Nova Scotia Foods Prods Corp (2d Cir 1977)
Concise general statement must be explain why significant
alternative was rejected
i. Facts: FDA promulgated a rule requiring all producers of
canned fish to heat the fish to a certain temperature before
canning to avoid spread of botulism. Nova Scotia fails to
comply, so FDA seeks injunction. Nova Scotia argues that the
concise general statement of the rules basis and purpose
failed to respond to objections presented in response to the
proposed rule: (1) that rule is overbroad (failed to
distinguish b/w diff types of fish); (2) the rule creates an
unbearable burden on the industry (heating to such high
temp would destroy white fish product); (3) the rule didnt
take into consideration the feasible alternatives.
ii. Held: Court upheld the objection. Court strikes the rule.
iii. Exemptions from 553
1. Requirements in 553 dont apply to: interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice, or when the agency finds good cause
2. Interpretive rule exception
a. Hoctor v United States Department of Agriculture (7th Cir 1996) p
497 An interpretive rule is (1) a logical and automatic result
of a legislative rule and (2) is not binding
i. Facts: Hoctor deals in exotic animals. He violates USDAs 8
foot fence rule. He says the rule is invalid b/c it wasnt
promulgated in accordance with notice and comment
requirements. USDA argues that 8 foot fence rule is an
interpretation of structural strength regulation. Because its
an interpretation, it didnt have to go through notice and
comment rule-making requirements; it falls under the
exception in 553(b).
ii. Held: Eight-foot fence rule is a legislative rule, so must go
through notice and comment requirements. The eight-foot
standard is not a logical and automatic consequence of the
structural strength standard, and the rule is binding whereas
an interpretive rule is only advisory.
b. National Family Planning and Reproductive Health Association Inc. v
Sullivan (DC Cir 1992) p 491 Where a rule is a complete
reversal from an earlier legislative rule, it is itself a
legislative rule rather than an interpretive rule
i. Facts: Title X of the Public Health Service Act provided that
appropriated funds could not be used in programs where
abortion was a method of family planning. In 1988, HHS
promulgated by notice and comment rulemaking a much
broader prohibition on abortion counseling or referrals

13

including a gag rule that made it unlawful for care

providers in clinics funded by Title X to discuss with clients
the availability of abortion. In the wake of public pressure,
President George H.W. Bush directed HHS not to apply the
regulations in a way that interfered with the doctor-patient
relationship. In response, Secretary of HHS issued Directives
instructing care providers that they were able to discuss
abortion with their patients. National Family Planning then
objected to the Directives, claiming that they were legislative
rules that had to be passed according to the notice and
comment requirements of 553.
ii. Held: The Directives are legislative rules that must be made
according to 553. The Directives are a complete reversal
from the earlier legislative gag rule.
3. General statement of policy and rules of agency organization exception
a. Lincoln v Vigil (US 1993) p 506
i. Facts: Indian Health Service decided to close a New Mexico
clinic to redirect its resources towards children in need of
mental health care. This decision was issued in a memo. The
plaintiffs challenged the decision to close the clinic by
claiming that the decision should have been issued according
to notice and comment rulemaking procedure.
ii. Held: decision to close the clinic fell within one of two
exemptions to 553 either the general statement of policy
exemption or the rules of agency organization exemption.
1. General statements of policy are statements issued
by an agency to advise the public prospectively of the
manner in which the agency proposes to exercise a
discretionary power. The term includes an
announcement like the one issued by the Indian
Health Service, in which the agency decided to
discontinue a discretionary allocation of unrestricted
funds from a lump-sum appropriation.
2. Rules of agency organization are rules about internal
organization and employment practices.

14

6.Adjudication
a. Constitutional Authority to Adjudicate
i. CFTC v Schor (US 1986) Agencies can hear non-common law claims as long
as Article III courts are reserved the powers of enforcement and review.
Agencies can hear common law claims as long as power is reserved to
Article III courts, there is a limited grant of power to
Use CFTC
the agency, and policy considerations [such as
analysis when
reducing high volume of litigation in Article III courts,
administrative
drawing on expertise of the administrative agency,
tribunal is
and equalizing disparate situations of the litigants]
adjudicating
favor the scheme.
private claim
1. Facts: Schor sued Conti (commodities broker) alleging that Conti violated
the Commodity Exchange Act and CFTC regulations. Schor filed claim with the CFTC. Conti
counterclaims in the CFTC for money owed to him by Schor. Schor claims that the CFTC does not
have jurisdiction over state law counterclaims brought in reparations proceedings.
2. Held: CFTC can hear the state law counterclaim. Schor waived his personal right
to file his claim in an Article III court and separation of powers concerns are not
violated here.
i. What are the factors the court looks at when trying to decide whether this
delegation of jurisdiction has violated separation of powers principles? The
concern is that adjudication of common law claims in administrative tribunals
might violate separation of powers.
1. The traditional private vs. public right distinction. Whether a claim is based
on a private right or a public right depends on two factors: (1) whether the
Whats a
parties are both private [if so, then the right is private] or whether one
private
party is the government [if so, the right is public]; and (2) the source of the
claim?
claim [if common law, private right is being invoked]. Adjudication of
private rights has traditionally been within the jurisdiction of Article III
courts. The basic function of an Article III courts is to protect private rights,
which are thought to be very foundational rights.
2. Extent of the judicial power thats been conferred on the agency and the
extent of the judicial power thats been retained by the Article III courts. If
the power of enforcement of the administrative agencys order and the
power to review the order has been reserved to an Article III court, then it is
more likely that the court will find that the administrative agencys
jurisdiction over a common law claim does not violate separation of powers
principles.
3. Congress rationale. If Congress rationale is to engage in jurisdiction
stripping, then the agencys jurisdiction over the common law claim is
more likely to be rejected. However, if Congress has legitimate reasons for
granting this jurisdiction to an agency, then the grant of jurisdiction is more
likely to be upheld. One of the reasons found to be legitimate in CFTC v
Schor is that it would be expedient to consolidate related claims in a
tribunal that has expertise in CEA/CFTC regulations violations and that is
more efficient and less expensive than Article III courts. Furthermore, the
administrative tribunal is part of an independent agency, so is free from
political pressures.
b. Constitutional Due Process: the Interests Protected
i. Is there a right protected by the Due Process Clause such that an adjudicative
procedure would be required?
ii. Traditional view: rights vs. privilege dichotomy
1. When it came to deprivation of rights (something that existed prior to
government), a hearing was due
2. When it came to privileges (something granted to you by the government),
no hearing was required
iii. Goldberg v Kelly (US 1970)
1. Due Process Clause requires an evidentiary hearing before a
recipient of welfare benefits can be deprived of such benefit

15

2. Facts: Plaintiffs are residents of NYC receiving financial aid under the
federally assisted program of Aid to Families with Dependent Children
(AFDC). They want to have a right to an oral hearing before their benefits
are terminated.
3. Held: Plaintiffs have a protected interest, but court is not clear on whether
its life, liberty, or property. The litigants did not contest this issue. The
procedure that is due to plaintiffs:
a. Notice that benefits will be terminated based on the caseworkers
recommendation and unit supervisors approval of the termination
b. In response to that termination notice, the claimant can request an
oral pre-termination hearing
c. For the pre-termination hearing, the claimant must be allowed to
retain an attorney if he so desires
d. The claimant or his counsel will be given the opportunity to make an
oral argument and cross-examine the witnesses
e. The claimants eligibility determination should be made by an
unbiased decision-maker
f. The decision-makers conclusion as to the recipients eligibility must
be based on the legal rules and evidence adduced at the hearing
and should be explained in a brief statement (though the statement
does not need to amount to a full opinion including formal findings
of fact or conclusions of law)
g. ONLY AFTER the oral hearing will a claimants benefits be
terminated, if the unbiased decisionmaker so concludes
iv. Board of Regents v Roth (US 1972) In order to have a property interest, a
litigant has to have a legitimate claim of entitlement that is established
generally by a positive statutory instrument
1. Facts: Roth is untenured professor. One-year appointment. Doesnt get
rehired at close of his appointment. Decision not to renew his contract was
taken without any process whatsoever. Roth sues the state of Wisconsin.
He wants a hearing about why he was terminated and wants to be provided
with reasons.
2. Held: Roths interest in getting his contract renewed for another year is not
a right protected under the Due Process Clause.
a. Roth was not denied his liberty where he simply is not rehired in
one job but remains as free as before to seek another.
i. Examples of liberty interests = interest in maintaining a good
reputation (so if Roth had been fired on a charge of
dishonesty, then a hearing would be warranted) or interest in
ability to find other jobs (so if state had invoked regulations
barring him from all other public employment in state
universities, then a hearing would be warranted).
b. Roth was not denied his property because he had no statutory
entitlement to his employment. Whether one has a property right
depends on enactments by legislature and not by case law.
v. Perry v. Sindermann (US 1972) Court will look to informal statements and
expectations that are created for people who are in a state work place to
determine whether or not there is a protected property interest
1. Facts: Teacher whose contract had not been renewed alleged that
ambiguous assurances of continued employment contained in official
college publications created a system of de facto tenure on which he had
legitimately relied.
2. Held: allegations were sufficient to withstand a motion for SJ on the ground
that P lacked a property interest. The college publications justified his
claim of entitlement to continued employment absent sufficient cause.
vi. Cushman v Shinseki (Fed Cir 2009) Veterans disability benefits are a
protected property interest because they are nondiscretionary,
statutorily mandated benefits (i.e. a veteran is entitled to benefits upon

16

a showing that he meets the eligibility requirements set forth in the

governing statutes and regulations)
1. Facts: Veteran who suffered injuries in Vietnam sued for veterans benefits.
He was an applicant who had been denied and alleged he was denied a
property interest.
2. Held: Entitlement to veterans disability benefits are nondiscretionary,
statutorily mandated benefits that are a property interest protected by the
due process clause.
c. Constitutional Due Process: the Procedure Due
i. Mathews v Eldridge (US 1976) Identification of the specific dictates of due
Use this test
process requires consideration of three factors: (1) the private interest
before
that will be affected by the official action; (2) the risk of an erroneous
determining
deprivation of such interest through the procedures used, and the
if procedure
probable value, if any, of additional or substitute procedural safeguards;
should be
and (3) the governments interest, including the function involved and
granted
the fiscal and administrative burdens that the additional or substitute
before or
after
procedural requirement would entail
deprivation
1. Facts: Eldridges disability payments were terminated upon a finding that
he was no longer eligible for benefits and before an opportunity for an oral
hearing. Eldridge claims that his disability benefit payments should
terminate only after he has had an opportunity for an oral hearing and the
administrative law judge has made a determination based on that hearing
that he is no longer eligible for benefits.
2. Held: Disability benefits payments can be terminated before the
opportunity for an oral hearing.
a. Prong One: Private interest in being denied benefits before an oral
hearing is low. The disabled workers need is likely to be less than
that of a welfare recipient, who was found to be in need of a pretermination hearing, because the disabled worker is probably less
destitute. The beneficiary more likely has other assets beyond the
disability benefits such as earnings of other family members,
workmens compensation awards, tort claims awards, savings,
private insurance, public or private pensions, veterans benefits,
food stamps, and public assistance.
b. Prong Two: The risk of an erroneous determination here is low, and
the procedural safeguards already in place are comprehensive. The
procedural safeguard that is already in place the paper record
documenting the changes in the beneficiaries eligibility is more
complete than the basis for the termination in Goldberg. Moreover,
the nature of the determination is technical in the sense that its
based on medical evidence, and therefore is more objective than
the hearsay evidence on which termination was based in Goldberg.
c. Prong Three: Government interest in maintaining fiscal efficiency
and its interest in an expeditious administration of the procedure is
strong.
Issues of Procedural Due Process in Schools
Goss v Lopez (US 1975) a public school must
Ingraham v Wright (US 1977) no preconduct a hearing before subjecting a
determination hearing is required before
student to suspension
subjecting student to corporal punishment
Facts: Student was suspended from high school
Facts: Student was subjected to corporal
based on the fact that she was being disruptive.
punishment for failing to respond to a teachers
Student claimed a liberty interest in going to
instruction. Student claimed a liberty interest in
school and in avoiding the stigma that is
avoiding unmerited corporal punishment.
associated with suspension.
Held: No pre-determination hearing is required
Held: School must hold pre-determination hearing
(not a full-scale adversarial hearing, but an
informal one).
Why do these cases come out differently? Mathews test:

17

 Private interest: suspension results in significant loss to the individual whereas spanking is less of a
loss
Substitute procedural safeguards: person subject to corporal punishment can bring tort suit whereas
person subject to suspension probably has no claim in district court
Government interest: degree of intervention that would have been required for a pre-corporal
punishment hearing would have been really burdensome; societal interest in speedy corporal
punishment as a useful corporal tool
d. Statutory Hearing Rights
i. Formal Adjudication APA 554, 556, 557
1. To determine whether a formal adjudication is warranted, look to the
enabling statute. If the enabling statute says that the adjudication must be
determined on the record after opportunity for an agency hearing,
then we are in formal adjudication land.
2. What do you get when theres a formal adjudication?
a. Persons entitled to receive notice of the hearing shall receive notice
of the time, place, and nature of the hearing as well as the matters
of fact and law asserted. APA 554.
b. Parties can present oral and documentary evidence. APA 556.
c. Parties can submit rebuttal evidence and conduct crossexamination. Id.
d. A record will created for the parties that includes findings and
conclusions, and the reasons or basis therefore, on all material
issues of fact, law, or discretion presented on the record. APA 557.
3. Portland Audubon Socy v Endangered Species Committee (9th Cir 1993)
When an agency engages in formal adjudication, ex parte
communications between the agency and the President/his
administration are prohibited
a. Facts: The Endangered Species Act prohibited federal agencies from
taking action that would threaten or endanger species on the
endangered species list, such as the spotted owl. The Bureau of
Land Management applied for an exemption the Endangered
Species Act so that it could auction off 44 tracts of land for logging
purposes. The Endangered Species Committee then approved
exemptions for 13 of the 44 tracts based on a report issued by the
head of the Committee, the Secretary of the Interior, assessing the
risks of the exemption to the spotted owl as well as the economic
benefits of allowing logging. The Portland Audubon Society
challenged the exemptions that were granted on the basis that
there were inappropriate ex parte communications made by the
President and his Administration to the Committee members
pressuring them to grant the exemptions.
b. Disposition: remanded to Committee to hold an evidentiary hearing
to determine the nature, content, extent, source, and effect of any
ex parte communications that may have transpired.
ii. Informal Adjudication -- APA 555(e)
1. If the enabling statute requires an adjudication that is NOT on the record
after opportunity for an agency hearing, then we are in informal
adjudication land.
2. What do you get in informal adjudication land?
a. Basically just a right to notice that the decision has been made and
a summary statement of rationale: Prompt notice shall be given of
the denial in whole or in part of a written application, petition, or
other request of an interested person made in connection with any
agency proceeding. Except in affirming a prior denial or when the
denial is self-explanatory, the notice shall be accompanied by a brief
statement of the grounds for denial

18

3. If your client wants more process than is afforded by APA 555(e), then you
have to argue that Due Process requires more. Use Goldberg v Kelly, Board
of Regents v Roth, Perry v Sindermann, Mathew v Eldridge.

19

6.Judicial Review
a. APA Standards of Review
i. Standard of review that court will apply depends on the agencys enabling statute
and APA 706
1. APA 706
a. (2) Court shall hold unlawful and set aside agency action, findings,
and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
ii. Affidavits are not the best evidence for agency to give to a court to explain its
decision b/c thats post-hoc reasoning that was engineered for the proceeding. To
be on the safe side, Secretary of an agency should develop an agency record that
explains agencys reasoning and conclusions.
iii. Policy behind judicial review
1. Theres a danger that if an agency is entrusted to create its own rules,
apply them, and then adjudicate whether theyve been applied correctly,
there will be tyranny. To combat that risk, courts must have the power to
check that an agency has acted within the scope of its powers.
2. Public choice view. Congress has struck bargains with public interest
groups, so its important for agencies to abide by what Congress has done
to ensure the political process functions.
3. Public interest view. Congress represents the public, so what Congress
mandates the agencies to do represents the will of the public. We want to
make sure that agencies do what democratically elected legislatures told
them to do.
iv. Citizens to Preserve Overton Park v Volpe (US 1971) example of APA 706(2)(A)
& (C) in action
1. Facts: Memphis City Council and Secretary of Transportation approved a
plan that would allow for construction of a highway running directly through
Overton Park in Memphis, TN. The Department of Transportations enabling
act, the Federal-Aid Highway Act, required the Secretary to ensure that (1)
there was no feasible and prudent alternative to the proposed route
through the park, and (2) all possible planning had been done to minimize
harm to the park should there be no feasible and prudent alternative. The
Citizens to Preserve Overton Park sued, alleging that Secretary Volpe failed
to comply with the requirements of the Federal-Aid Highway Act and that
his decision was unlawful under APA 706.
2. Held: There were feasible and prudent alternatives to constructing the
highway through the park, and there were additional ways to minimize
harm to the park under the proposed plan. In violating the Federal-Aid
Highway Act by approving the proposed plan, the Secretary also violated
APA 706(2)(A) & (C).
a. Feasible and prudent alternative There were alternatives to
constructing the highway through the park, namely by routing it to
the north or south of the park. The alternatives should not be
weighed with consideration to economic effects of those
alternatives. Rather, preservation of parkland is to be given a
priority.

20

b. Minimize harm Improved drainage planning, tunneling under the

parks creek, and increased depression of the roadway would
minimize harm to the park. The record didnt fully explain whether
these mechanisms were considered, and if they were, why they
were rejected.
c. APA 706(2)(A) Secretary must prove that his decision was not
arbitrary and capricious and that he followed the necessary
procedural requirements. When something is grounded in fact, it is
not arbitrary and capricious.
d. APA 706(2)(C) Because Secretary Volpe has misinterpreted his
authority by engaging in a balancing test when weighing the
alternatives to the proposed route, he exercised powers in excess of
his statutory authority.
b. Questions of Fact or Policy Arbitrary and Capricious
i. When does court apply the arbitrary and capricious standard of review?
1. Informal adjudication or informal rulemaking
ii. THE STANDARD: In reviewing a question of fact or a policy determination, the
court should apply the arbitrary and capricious standard. For the policy
determination to be upheld, the agency must examine the relevant data and
articulate a satisfactory explanation for its action including a rational connection
between the facts found and the choice made. Motor Vehicles Assn v State Farm.
Normally, an agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise. Id.
1. Agency must examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection b/w the facts
found and the choice made. Normally an agency rule would be arbitrary
and capricious if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view of the product of agency expertise.
iii. How to challenge an agency action:
1. Point out alternatives the agency didnt consider
2. Point out flaws in the scientific evidence that the agency relied on or in the
reasoning it used to draw conclusions from those scientific studies
iv. Motor Vehicles Assn. v. State Farm (US 1983) The Dept of Transportations
rescission of the passive restraint requirement of Standard 208 was
arbitrary and capricious because it failed to consider alternatives and
drew conclusions unsupported by the facts
1. Facts: The Secretary of Transportation had promulgated Standard 208,
which required car manufacturers to install passive restraints in cars in the
form of either airbags or automatic belts, pursuant to the National Traffic
and Motor Vehicle Safety Act of 1966, which was created for the purpose of
reducing traffic accidents and deaths and injuries to persons resulting
from traffic accidents. In 1981, however, Secretary of Transportation
Andrew Lewis decided to rescind Standard 208 because it appeared that
very few car manufacturers would choose the airbag option due to expense
and that the automatic seatbelt option would not have the benefits that it
was predicted to have because of the ability to detach the automatic
seatbelt.
2. Held: Rescission of Standard 208 was arbitrary and capricious; agency has
to re-start the rulemaking proceeding. Three reasons why arbitrary and
capricious: (1) NHTSA gave no consideration whatever to modifying
Standard to require airbags; (2) too quick to dismiss the safety benefits of

21

automatic seatbelts; and (3) agency failed to articulate a basis for not
requiring non-detachable belts under Standard 208.
Failed to consider alternatives
The agency failed to consider a viable alternative
a rule that would require car manufacturers to
install airbags rather than giving the car
manufacturers a choice. The Court stated that at
the very least, this alternative way of achieving
the objectives of the National Traffic and Motor
Vehicle Safety Act should have been addressed
and adequate reasons given for its abandonment.
The agency also failed to articulate a basis for not
requiring non-detachable belts. Rather, it treated
the non-detachable belt together with the ignition
interlock device and stated that such usecompelling devices would complicate the
extrication of an occupation from his or her car.
The Court indicated that the agency should have
analyzed the continuous seatbelts option in its
own right and, because it did not, the agency
failed to offer a rational connection between the
facts and judgment required to pass muster under
the arbitrary-and-capricious standard.

Drew conclusions unsupported by the facts

The Court stated that there was no direct evidence
in support of the agencys finding that detachable
automatic belts could not be predicted to yield a
substantial increase in usage. Rather, the
empirical evidence, consisting of surveys of drivers
of automobiles equipped with passive belts,
revealed more than a doubling of the usage rate
experienced with manual belts. The agency
argued that the doubling of seatbelt usage in
these studies could not be extrapolated to an
across-the-board mandatory standard because the
passive seatbelts were guarded by ignition
interlocks and purchasers of the tested cars are
atypical in the sense that they are more likely than
the average person to be interested in using
safety features in the first place. The Court pointed
out flaws in the agencys reasoning. One such flaw
was that inertia a factor which the agencys
studies had found significant in explaining the low
usage rates for seatbelts worked in favor of, not
against, use of the protective device. Thus, there
would be grounds to believe that seatbelt use by
occasional users would be substantially increased
by detachable passive belts.

v. Federal Communications Commission v. Fox Television Stations Inc. (US 2009) The
same evaluation under the arbitrary and capricious standard applies
whether the agency is enacting policy or changing an existing policy
1. Facts: Via adjudication, FCC determined that one use of a nonliteral use of
an indecent word would constitute a violation of the ban on indecent
language. This policy was a departure from its earlier policy that required
repetitive usage of a word to constitute a violation. In explaining this
Example where
change, the FCC said (1) that bleeping/delay systems technology had
agency
advanced making it easier to bleep out single uses of objectionable
language; (2) that it made no sense to distinguish between whether one
adjudication
uses the relevant terms as an expletive or as a literal description, thereby
was not
suggesting that nonliteral and literal uses should be treated the same (i.e.
arbitrary and
one use constitutes a violation); and (3) that the FCCs new contextual
capricious
approach to fleeting expletives was better and more constituent with the
agencys general approach to indecency than was its previous categorical
approach, which offered broadcasters virtual immunity for the broadcast of
fleeting expletives.
2. Held: The change in policy was not arbitrary and capricious. The agencys
reasons for expanding the scope of its enforcement activity were entirely
rational and at least as good as its decision to enact the policy in the first
place.
3. Dissent (Breyer): wants an explanation for why the agency is changing its
policy; its not enough to justify the policy was within the scope of its power
granted by the enabling act. The agency should explain why the
circumstances have changed.
While as recently as the 1980's the Court was very firm in its arbitrary and capricious review when an
agency adopted a change in policy, see State Farm, the current status of the law is that if the rationale
behind changing policy courses is as good as the reason for adopting the initial course, the Court will
defer to the agency, see FCC v. Fox.

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c. Questions of Fact or Policy Substantial Evidence

i. When does a court review for substantial evidence? When agency has made policy by
formal rulemaking or formal adjudication or when the enabling statute says so.
1. APA 706(2)(E) provides that a court shall hold unlawful and set aside
agency action unsupported by substantial evidence in a case subject to
Sections 556 and 557 of this title or otherwise reviewed on the record of an
agency hearing provided by the statute
2. In addition, there are some statutes that specify substantial evidence
review although the agency action is not formal rulemaking or formal
adjudication (e.g. Occupational Safety and Health Act)
ii. What does substantial evidence mean?
3. It is more than a mere scintilla; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion; it is
evidence sufficient to withstand a motion for a directed verdict. It is a less
rigorous standard than clearly erroneous, but is more rigorous than no
basis in fact. Universal Camera Corp. v. National Labor Relations Board (US
1951).
4. The agencys findings are entitled to respect, but they must nonetheless
be set aside when the record before a [court] clearly precludes the
[agencys] decision from being justified by a fair estimate of the worth of
the testimony of witnesses or its informed judgment on matters within its
special competence or both. Universal Camera Corp. v. National Labor
Relations Board (US 1951).
ii. Universal Camera Corp. v. National Labor Relations Board (US 1951) In
conducting a review based on the substantial evidence standard, the
court needs to independently review the record in its entirety rather
than apply a deferential standard to the agencys findings.
1. Facts: The NLRB determined (via formal adjudication) that the plaintiff was
discharged due to the defendants resentment against him for engaging in
labor organization activities in violation of the National Labor Relations Act.
The NLRB did so despite the conclusion of the trial examiner that the
evidence failed to sustain the allegations. The Second Circuit agreed with
the NLRB, but on appeal the Supreme Court directed the Second Circuit to
make an independent review of the record as a whole, including the trial
examiners findings. On remand, the Second Circuit concluded that the trial
examiners findings should be accorded more deference because of the
trial examiner was in the best position to evaluate the credibility of the
witnesses on whose testimony the outcome depended.
iii. The Benzene Case (US 1980) Example of situation where agency did not
pass the substantial evidence test.
1. Facts: The Secretary of Labor promulgated a policy (via informal
adjudication) to reduce the permissible occupational exposure to benzene
from 10 parts benzene to million parts air to 1 part per million. The
Secretary based its decision to reduce the exposure level on studies
indicating that chromosomal damage could result from exposures below 25
ppm, the Infante study which disclosed seven excess leukemia deaths in a
population of about 600 people over a 25-year period, and the Italian shoe
study which showed a doubling of leukemia deaths among Italian
shoemakers exposed to concentrations of between 150 and 200 ppm.
Extrapolating this data, OSHA argued, indicated a danger of adverse health
effects at 10 ppm and that, therefore, 1 ppm was the appropriate level.
2. Held: In applying the substantial evidence standard of review, the Court
held that the Secretary exceeded his power in setting the exposure level to
1 ppm. The Court identified weaknesses in the scientific basis for the
Secretarys conclusions and relied on findings by industrys expert, Dr.
Richard Wilson, who found that, at an exposure of 10 ppm, at most two
cancer deaths every six years would be observed in the exposed
population of 30,000 workers. Such a risk was not sufficient to constitute a

23

significant harm, as required by Occupational Safety and Health Act.

d. Questions of Law
i. When an agency is interpreting its enabling statute, it is involved in an analysis of
a question of law
ii. The old way of reviewing agency determination on a question of law:
1. NLRB v Hearst (US 1944)
a. Facts: The NLRB had ordered Hearst to bargain collectively with its
newsboys, based on a finding that the newsboys were
employees of Hearst, as that term is used in the National Labor
Relations Act. Hearst argued that the statute should be interpreted
to incorporate the common law distinction between employee and
independent contractor, and that, under that test, the newsboys
were independent contractors. The NLRB argued that the definition
of employee under the Act was one more tailored to the Acts
distinctive purposes of protecting workers in subordinate bargaining
positions and promoting labor peace.
b. Held: The Court said that Congress did not intend the Act to import
common law standards, but the Court left it up to the NLRB to
decide whether newsboys would be covered under the term
employee. On the question of whether Congress intended the Act
to import common law standards, the Court appeared to decide the
question independently and definitively, by direct reference to
statutory language, purpose, and history. But on the question of
whether newsboys were included in the definition of employee,
the Court deferred to agency expertise because of (1) the agencys
understanding of the basic mission of the agency, and (2) the
agencys understanding of the different kinds of workplaces in which
an employee is located.
iii. How courts review questions of law now (see next page)

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1.

Skidmore v Swift & Co (US 1944) A court should give deference to an agencys
interpretation of its enabling statute. However, in deciding how much deference to
give the agency, the court will consider the agencys thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, the expertise of the agency on the specific question, and whether
the agency had opportunity to consider the question over a long period of time.
a. Facts: Seven persons employed as private firefighters in Swifts meat packing plant sued
their employer to recover payment for overtime worked. They claimed that time spent in the
companys fire hall at night, while on call to respond to alarms, was working time under
the Fair Labor Standards Act, and thus entitled them to overtime pay. In contrast, the
Administrator of the Wage and Hour Division of the Labor Department interpreted the statute
to exclude sleeping time, but include waking on-duty time within the definition of working
time.
b. Held: The Supreme Court reversed the district court, which had read the statute
independently, saying that the district court should have given at least some modest degree
of deference to the Administrators interpretation.
iv. REASONS FOR DEFERENCE: The Administrators policies are made in pursuance of
official duty, based upon more specialized experience and broader investigations
and information than is likely to come to a judge in a particular case.
v. CAVEATS: However, the weight of such a judgment in a particular case will depend
upon the thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.
2. Chevron test:

(1) Is the intent of Congress on the precise question at issue clear? If the intent of Congress is
clear, then the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.
a. How to determine intent of Congress? Look to definitions section of the statute,
dictionary definitions, legislative history, general purpose of the statute, principles of
statutory construction.
(2) If the statute is silent or ambiguous with respect to the specific issue, the question for the
court is whether the agencys interpretation is based on a permissible construction of the
statute. Under this prong of the analysis, the court is very deferential to the agencys
interpretation of the statute.
3. Chevron v Natural Resources Defense Council Inc. (US 1984) If Congress has not directly
spoken to the precise statutory interpretation question at issue, then deference
should be given to the agencys interpretation of the statute.
a. Facts: Congress passed the Clean Air Act Amendments in 1977 to improve national air quality.
The CAAA required nonattainment (dirty air regions) states to establish a permit program
regulating new or modified major stationary sources of air pollution. The EPA regulation
promulgated to implement this permit requirement allowed a state to adopt a plant-wide
definition of the term stationary source, as opposed to a definition that identified a
stationary source as a single smokestack. Environmental groups challenged this definition
as an unreasonable construction of the term stationary source.
b. Held: the EPAs definition of the term source is a permissible construction of the statute.
Neither the statutory language nor the legislative history of the statute provided guidance on
what Congress intended for the definition to be. Therefore, deference should be given to
agencys interpretation.
4. Reasons for deferring to agencies:
a. Agencies are experts in the field, as opposed to judges
b. An agency to which Congress has delegated policymaking responsibilities may properly rely
upon the incumbent administrations views of wife policy to inform its judgments, whereas
judges are not supposed to use their personal policy preferences to guide their review of
agency action
c. Agencies are accountable to the people through the Chief Executive, and it is appropriate for
these agencies within the executive branch to make such policy choices

Examples of Step One Analysis under Chevron

Example of Step Two Analysis under Chevron

MCI Telecommunications Corp. v American

Telephone & Telegraph Co. (US 1994) In applying
first step of the Chevron analysis, the court
may look to dictionary definitions to
determine if the statute is ambiguous on its
face.
Facts: FCC had interpreted the word modify in its
enabling statute to exempt a large category of
communications providers from the duty to file
rates charged for communication services with the
Commission, which those communications
providers had traditionally been required to do.
This interpretation was challenged by AT&T as
beyond the scope of its authority.
Held: The term modify does not permit the FCC
to exempt nondominant carriers from filing its
rates with the FCC. In reviewing dictionary
definitions of the term modify, the court finds
that the dominant definition is to make minor
changes. The FCCs action was not a minor
change because it eliminated a crucial provision of
the statute for 40% of a major sector of the
industry.
Dissent: Rather than look to the dictionary
definition of the term modify, the dissent looks
to whether the exemption is consistent with the
purpose of the act, which is to ensure that carriers
do not charge unreasonable or discriminatory
rates. In doing so, the dissent chooses to employ a
different method of statutory interpretation than
does the majority.

Babbit v. Sweet Home Chapter of Communities for

a Great Oregon (US 1995) In determining with
the agency has reached a permissible
construction of the statute, the court relies
on the ordinary meaning of the word or
phrase at issue, the broad purpose of the
enabling act, statutory provisions that would
be rendered ineffectual should the word be
interpreted otherwise, and the policy behind
deference to agency interpretation where
the statute is ambiguous.
Facts: In interpreting the word harm in the
Endangered Species Act, the Secretary of the
Interior issued a regulation defining the phrase as
including significant habitat modification or
degradation where it actually kills or injures
wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding,
or sheltering. A group of landowners and loggers
brought a declaratory judgment action asking for a
declaration that the Secretarys regulation was
inconsistent with the Act. According to the
plaintiffs, harm required direct applications of
force against protected species.
Held: There is a plausible realm of interpretations
of the phrase, and the Secretarys interpretation is
one that fits within that realm. In so concluding,
the court looked to (1) the ordinary meaning of the
word as provided in the dictionary, (2) the broad
purpose of the ESA to protect endangered species,
(3) the Congressionally authorized issuance of
permits for takings that would otherwise prohibit
takings that had incidental harms, and (4) the
general reasons for deferring to a plausible
reading of the statute by an agency, including its
expertise in the area, the decision by Congress to
delegate its administrative powers, and the
complex policy choices involved.
Dissent: The plain meaning of harm cannot
include various economic activities that would
alter the environment of the spotted owl and
woodpecker. Scalia relies on two principles of
statutory interpretation not employed by the
majority: (1) he implies the common law definition
into the statute and (2) he looks at other words
that constitute take and determines whether
harm conforms with the general conception of
the term.

Food and Drug Administration v Brown &

Williamson Tobacco Corp. (US 2000) Whether
Congress has directly addressed the
interpretation of a statutory term must be
guided to a degree by common sense as to
the manner in which Congress is likely to
delegate a policy decision of such economic
and political magnitude to an administrative

agency.
Facts: FDA issued a rule designed to prevent the
marketing of tobacco products to young people. To
do so, the FDA claimed that it had legal authority
to regulate tobacco products because nicotine was
a drug and cigarettes were drug delivery
devices as those terms are used in the FDCA. The
tobacco industry challenged the rules on the
grounds that the structure and history of the FDCA
precluded an interpretation that it authorized the
FDA to regulate tobacco products.
Held: Congress intended to exclude nicotine and
cigarettes from the jurisdiction of the FDA. Court
reached this conclusion based on three reasons:
(1) It looked to congressional policy drawn from
other pieces of legislation. These other pieces of
legislation focus on the importance of the tobacco
industry to the American economy and specifically
address the regulation of tobacco without actually
banning it; (2) The FDA had previously rejected
authority to regulate tobacco. Congress likely
incorporated this commonly understood limitation
on jurisdiction into the statutory meaning of the
FDCA; (3) The regulation of tobacco presents an
extraordinary case in that the tobacco industry
constitutes a significant portion of the American
economy and has a unique place in American
history and society.
Massachusetts v. Environmental Protection Agency
(US 2007) In determining whether the statute
is ambiguous on its face, the court looks to
the plain language of the statutory text.
Facts: Massachusetts petitioned the EPA
requesting that it regulate carbon dioxide
emissions from automobiles under the mobile
source provisions of the Clean Air Act. The EPA
denied this petition on the basis that greenhouse
gases, such as carbon dioxide, cannot be air
pollutants within the meaning of the Act, and
therefore the EPA did not have jurisdiction to
regulate in that area.
Held: EPA does have jurisdiction to regulate
greenhouse gases. In so deciding, the Court looked
to the plain language of the Act, in particular the
definitions section of the Act and the general grant
of authority therein. The Court finds that the EPA is
directed to promote standards whenever there is
an air pollutant emitted by vehicles that
contributes to air pollution, and air pollutant is
defined as anything that is a physical or chemical
substance that is emitted into or otherwise enters
the ambient air. Based on this language, the Court
concludes, Congress has quite specifically directed
the EPA to take action under these circumstances.
In distinguishing Brown & Williamson, the Court
said that in the area of tobacco regulation, the
legislative history indicated that cigarettes and
tobacco were not within the FDAs purview. The
legislative history surrounding the Clean Air Act

and the EPAs regulation of greenhouse gases did

no such thing.
Dissent: Scalia maintains that the statute is
ambiguous under step one, and that under step
two the agency came to a reasonable
interpretation in concluding that air pollution is
only that which affects the air that people breathe,
not the air circulating in the upper reaches of the
atmosphere.

7.Availability of Judicial Review

a. Justiciability Doctrines
i. Reviewability: what can be reviewed by courts
ii. Ripeness/final agency action/exhaustion of administrative remedies: When can
review be sought
iii. Standing: who can seek review
b. Rationale behind requirements of justiciability
i. Noble purpose for excluding litigants has to do with consideration to balance of
powers b/w Articles I, II, and III and the power of administrative agencies. This is a
legitimate reason for essentially barring the courthouse.
ii. Ignoble rationale has to do with the reluctance on the part of courts to actually
decide politically controversial cases. Courts are the least dangerous branch
because they have very few tools to enforce their judgments if they go contrary to
the will of the elected branches. Courts power rests a lot on their ability to claim
they are acting in a legitimate fashion. There are instances in which they wont
tread into controversial actions. So justiciability is a way for them to punt.
c. Final agency action
i. When informal agency action has effect of granting or denying permission to take
a requested course of action, court might consider it as final agency action.
ii. If agency answers request for action with a firm statement that it has decided not
to act, that decision can be a final agency action subject to judicial review.
iii. However, if an agency has not answered a request for action or has explained its
inaction as delay for further study of whether action is appropriate, inaction may
not be final agency action subject to judicial review.
d. Reviewability: Statutory Preclusion
i. APA 701(a)(1) provides that the chapter of the APA dealing with judicial review
does not apply to the extent that statutes preclude judicial review
ii. Why would Congress want to bar review of administrative agency decision?
1. Expertise of the agency. The agency is more aware than an Article III
court is of the problems experienced by the agencys constituency.
2. Judicial economy. By barring judicial review, Congress preserves judicial
resources.
3. Agency efficiency. If courts are afforded the power of judicial review, then
the agency will have to devote its resources to litigating its decisions in
court rather than devoting its resources to managing the administration of
the agency.
iii. Johnson v. Robison (US 1974) General presumption of reviewability can be
overcome if Congress, in the agencys enabling statute, intended to bar
judicial review.
1. Facts: The administrator of the Department of Veterans denied a claim by
Robison, a conscientious object during the war in Vietnam, for educational
assistance benefits under the Veterans Readjustment Act of 1966. The
administrator denied the claim because Robison had served only two years
of alternative service and had not fulfilled the statutory requirement of
active duty. Robison then filed suit in district court attacking the
constitutionality of the active duty requirement. He claimed the provision
violated his rights to equal protection of the law guaranteed by the Fifth
Amendment and to religious freedom guaranteed by the First Amendment.
2. Held: The Supreme Court said that the court does have jurisdiction to
consider Robisons constitutional claims. In coming to this conclusion, the
court based its decision on a few factors:
a. The court found that the language of 211(a) of the Veterans
Administration Act prohibiting judicial review appeared to be aimed
at review only of those decisions of law or fact that arise in the
administration by the Veterans Administration of a statute providing
benefits for veterans. Robisons constitutional challenge was not to
any decision of the Administrator, but rather to a decision of

Congress to create a statutory class entitled to benefits that did not

include conscientious objectors who performed alternative civil
service.
b. The Board of Veterans Appeals had previously disclaimed authority
to decide constitutional questions in other cases. When faced with a
problem of statutory construction, the Court shows great deference
to the interpretation given the statute by the officers or agency
charged with its administration. Therefore, the Court deferred to the
agencys ruling that it did not have jurisdiction to consider whether
211(a) is constitutional. However, if Article III courts were also
barred from reviewing the constitutionality of the provision, then
Congress power would go unchecked.
c. The legislative history surrounding the amendment of 211(a) did
not demonstrate a congressional intention to bar judicial review of
constitutional questions. Congress had two primary purposes in
enacting the no-review clause: (1) to insure that veterans benefits
claims would not burden the courts and the Veterans Administration
with expensive and time-consuming litigation, and (2) to insure that
the technical and complex determinations and applications of
Veterans Administration policy connected with veterans benefits
decisions would be adequately and uniformly made. Constitutional
challenges would not contravene the purposes of the no-review
clause because they could not be expected to burden the courts by
their volume nor do they involve technical considerations of
Veterans Administration policy.
iv. Gott v. Walters (DC Cir 1985) A question of law or fact that has been decided
by the agency and made in the course of applying the agencys enabling
statute may be statutorily precluded from judicial review.
1. Facts: the DC Circuit considered a procedural challenge to the Veterans
Administrations handling of veterans claims relating to illnesses allegedly
caused by exposure to radiation after the bombing of Hiroshima and
Nagasaki, Japan, and after aboveground tests of atomic weapons in the
United States. To succeed on a claim for benefits, a veteran must establish
that the illness was contracted in the line of duty. After a congressional
investigation of the VAs handling of these claims, the VA and the
Department of Defense issued a VA Radiation Program Guide and a
document entitled VA Radiation Claims Procedures. Veterans and others
brought suit claiming that the VA and DOD violated the APA by adopting
these documents without employing APA notice and comment procedures
and without publishing them in the Federal Register.
2. Held: 211(a) of the Veterans Administration Act precluded review. If the
court reviews agency decisions that have been made in the course of
applying the veterans benefit statutes, then Congresss purpose of keeping
the courts out of the day-to-day decision-making of the VA would be
frustrated. If a court ordered the VA not to apply the Program Guide or
Procedures without promulgating them according to APA procedures, then
the courts would have to monitor individual VA decisions to make sure that
its order was being followed.
e. Reviewability: Committed to Agency Discretion
i. APA 701(a)(2) excludes agency action from judicial review to the extent that
the agency action is committed to agency discretion by law
ii. Citizens to Preserve Overton Park v. Volpe (US 1971) General presumption of
reviewability may be overcome if there is no law to apply in the agencys
statute. Here, there was law to apply.
1. Facts: Two federal statutes prohibited the Secretary of Transportation from
using federal funds to finance construction of highways through public
parks if a feasible and prudent alternative existed. When the Secretary
approved funds for a highway through Overton Park in Memphis, his action

f.

was challenged. He claimed that the action was not judicially reviewable
because it was committed to his discretion.
2. Held: The Supreme Court disagreed with the Secretary, saying that this is
a very narrow exception, which applies in those rare instances where
statutes are drawn in such broad terms that in a given case there is no law
to apply. Here, the Secretary was governed by a statutory requirement
that the Secretary could not build the highway if a feasible and prudent
alternative existed that plainly provided law to apply. Feasible and
prudent alternatives referred to any alternatives that would be physically
possible and eliminate harm to the park.
iii. Webster v. Doe (US 1988) Agency actions falling within the domain of
national security are likely to be found unreviewable by courts under the
theory that there is no law to apply. Constitutional claims, however,
are reviewable.
1. Facts: The plaintiff challenged the Director of the CIAs ability to fire him
because he was a homosexual. The Director contended that the National
Security Act, which permitted the Director to terminate the employment of
any officer or employee of the Agency whenever he shall deem such
termination necessary or advisable in the interests of the United States,
allowed him to fire employees for their sexual orientation. The plaintiff
challenged the agency action on the basis that it was arbitrary and
capricious in violation of APA 706, it was an abuse of discretion, and was
reached without observing the procedures required by law and CIA
regulations. He also complained that the Directors termination of his
employment deprived him of constitutionally protected rights to property,
liberty, and privacy in violation of the First, Fourth, Fifth, and Ninth
Amendments. Lastly, he asserted that his dismissal transgressed the
procedural due process and equal protection of the laws guaranteed by the
Fifth Amendment.
2. Held: Though the administrative law claims were barred from judicial
review, the court could hear the plaintiffs constitutional claims.
a. With regard to the administrative law claims, the court denied
judicial review due to concerns that judicial review would require the
CIA to expose intelligence information, which would ultimately be
harmful to national safety. The court based this finding on statutory
construction of the National Security Act.
b. With regard to the constitutional claims, the Court found nothing in
the National Security Act to suggest that Congress meant to
preclude consideration of constitutional claims arising out of the
actions of the Director in his firing determinations. Where the intent
of Congress to preclude judicial review of constitutional claims is not
clear, the court has the power of review. The power to review
constitutional claims is important in ensuring that Congress has not
granted agencies discretion to violate the Constitution.
Reviewability: Decisions Not to Act
i. APA 555(e): Prompt notice shall be given of the denial in whole or in part of a
written application, petition, or other request of an interested person made in
connection with any agency proceeding . . . [T]he notice shall be accompanied by
a brief statement of the grounds for denial.
ii. Review of Agency Decision Not to Prosecute/Enforce (reviewed on arbitrary &
capricious basis)

General presumption is that agency decision not to enforce is unreviewable. However, that presumption
may be overcome if the substantive statute has provided guidelines for the agency to follow in
exercising its enforcement powers.
Presumption has been overcome

Presumption has not been overcome

Dunlop v. Bachowski (US 1975):

The statutory language of the National Labor
Relations Act indicated that the Secretary of Labor
had to bring an enforcement action when he found
probable cause to believe that a violation of the
NLRA had occurred and had not been remedied.

Heckler v. Chaney (US 1985):

The statutory language of the Food, Drug, and
Cosmetics Act indicated that the Secretary was
authorized to conduct examinations and
investigations; the statute gave no indication of
when an injunction should be sought; and the
provision providing for seizures of offending foods,
drugs, and cosmetics was framed in the
permissive.

1. Dunlop v. Bachowski (US 1975) In the case of agency inaction, the

Secretary must provide an explanation for his failure to act. If the
explanation is not arbitrary and capricious, then the reviewing
court should uphold the Secretarys decision not to act.
a. Facts: The Secretary of Labor decided not to pursue a civil action to
set aside a United Steelworkers of America district election despite
the allegations by a defeated candidate, Bachowski, that some
members were not informed of the election, that some locals failed
to hold the election at all, and that in some locals the secrecy of the
ballots had been compromised. The Secretary decided not to file a
civil action on the basis that Bachowski would have lost even if
these wrongs had not occurred. Bachowski then filed an action in
federal court seeking an order compelling the Secretary to file suit
to set aside the election, complaining that the Secretarys actions
were arbitrary and capricious.
b. Held: The Supreme Court said that, based on the statutes
mandatory language (that the Secretary must bring a civil action
against a labor organization to set aside the invalid election should
he find probable cause to believe that a violation has occurred and
has not been remedied), Bachowski was entitled to judicial review of
the Secretarys decision not to bring suit. In reviewing the
Secretarys decision, the Court held, the district court should not
conduct a wide-ranging factual inquiry into the propriety of the
Secretarys decision. Rather, the district court should order the
Secretary to provide a statement of reasons for the decision not to
bring suit and should base its review only on that statement. The
court should reject the Secretarys decision only if the statement
evinces that the Secretarys decision is so irrational as to constitute
the decision arbitrary and capricious.
2. How is arbitrary & capricious standard of review in the case of inaction
different from arbitrary & capricious standard of review in the case of
agency action?
a. In the case of agency action, the court reviews the whole record.
b. In the case of agency inaction, the court reviews only the statement
given by the Secretary explaining his failure to act.
3. Heckler v. Chaney (US 1985) The general presumption that the
agencys decision not to enforce is unreviewable may be overcome
if the substantive statute has provided guidelines for the agency
to following in exercising its enforcement powers. Here, the
presumption of unreviewability was not overcome.
a. Facts: The plaintiffs had been sentenced to death by lethal injection.
Plaintiffs first petitioned the FDA, claiming that the drugs used by
the States of Oklahoma and Texas for the purpose of lethal
injunction, although approved by the FDA for the medical purposes
stated on their labels, were not approved for use in human
executions. Because they were not so approved, the use of these
drugs in human execution constituted a violation of the FDCAs
prohibitions against misbranding. They also argued that the

FDCAs requirements for approval of new drugs applied, since

these drugs were now being used for a new purpose.
b. Held: There is a presumption of unreviewability of agencys
decisions not to act. That presumption can be overcome where the
agencys decision not to act is not discretionary. However, where the
agencys decision to act is discretionary, the presumption of
unreviewability cannot be overcome.
i. Here, the presumption was not overcome because the
language of the FDCA allows for a lot of discretion with
regard to bringing an enforcement action. Specifically, the
FDCA provides that [t]he Secretary is authorized to conduct
examinations and investigations, and the provisions for
seizure of offending foods, drugs, or cosmetics is similarly
framed in the permissive.
ii. The policy statement made the FDA Commissioner reflecting
on the scope of FDA jurisdiction over the unapproved use of
approved drugs for human execution, relied on by the Court
of Appeals as a statement of law cabining the agencys
discretion, was held by the Supreme Court to not overcome
the discretion granted to the agency by its enabling statute.
4. Why are agency decisions not to enforce presumptively unreviewable?
(Heckler v. Chaney)
a. An agency decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly within its
expertise. The agency must not only assess whether a violation has
occurred, but whether agency resources are best spent on this
violation or another, whether the agency is likely to succeed if it
acts, whether the particular enforcement action requested best fits
the agencys overall policies, and indeed, whether the agency has
enough resources to undertake the action at all. The agency is far
better equipped than the courts to deal with the many variables
involved in the proper ordering of its priorities.
b. When an agency refuses to act it generally does not exercise its
coercive power over an individuals liberty or property rights, and
thus does not infringe upon areas that courts often are called upon
to protect.
c. An agencys refusal to institute proceedings shares the
characteristics of the decision of a prosecutor in the Executive
Branch not to indict, which is a decision that has long been
relegated to the special province of the Executive branch inasmuch
as it is the executive who is charged by the Constitution to take care
that the laws be faithfully executed.
iii. Review of Agency Decision Not to Engage in Rulemaking (reviewed on an
arbitrary & capricious basis)
1. Massachusetts v. Environmental Protection Agency (US 2007) Agencys
denial of rulemaking petitions are not presumptively
unreviewable. When an agency denies a petition for rulemaking, it
must be prepared to explain its decision not to engage in
rulemaking. Otherwise, its inaction will be held to be arbitrary and
capricious.
a. Facts: A group of 19 private organizations filed a rulemaking
petition asking EPA to regulate greenhouse gas emissions from new
motor vehicles under 202 of the Clean Air Act. EPA denied the
rulemaking petition on the basis that: (1) the Clean Air Act does not
authorize EPA to issue mandatory regulations to address global
climate change, and (2) that even if the agency had the authority to
set greenhouse gas emissions standards, it would have been unwise
to do so at the time. It would be unwise to do so, the EPA explained,

due to the equivocal link between greenhouse gases and human

activities. Furthermore, EPA regulation would conflict with the
Presidents comprehensive approach to reducing the impact of
motor vehicle emissions. The private organizations sought review of
the EPAs decision not to engage in rulemaking in federal court.
b. Held: The Supreme Court reviewed the agencys denial of a petition
for rulemaking on an arbitrary and capricious basis. In its analysis,
the court found that, under the clear terms of the Clean Air Act, the
EPA can deny the petition for rulemaking only if it determined that
greenhouse gases do not contribute to climate change or if it
provided some reasonable explanation as to why it cannot or would
not exercise its discretion to determine whether they did. Because
the EPA offered no reasoned explanation for its refusal to decide
whether greenhouse gases cause or contribute to climate change,
its action was arbitrary and capricious.
iv. Why are agency decisions not to prosecute presumptively unreviewable while
agency decisions not to engage in rulemaking not presumptively unreviewable?
1. Volume of the decision-making in the enforcement context vs. RM context.
The decision making on enforcement is much more voluminous, so any
interference by the courts is considered to be more burdensome on the
agency.
2. The nature of the determination thats being made when an agency is
deciding not to enforce vs. when agency is deciding not to engage in RM.
Agency decision not to engage in RM is based on considerations of law and
policy. Agency decision not to enforce is based on facts. A court is
considered to be less expert on the facts than it is on the law. Given that
enforcement determinations entail assessment of probability of success,
court is less willing to intervene.
3. Petitions for RM are generally followed by fairly extensive agency reasons
as to why not to engage in RM. In the RM context, the agency has engaged
in a far more considered exercise about whether or not to use its authority
and expertise in a particular area. In the enforcement context, even though
agencies do have a duty to respond to petitions to enforce the act
(according to 555(e) of the APA), the decision tends to be extremely
cursory. Its much less fleshed out so its harder for court to come in and
review that decision to not go ahead.
g. Ripeness
i. A partys claim is ripe for review when (1) the legal issues are fit for judicial
resolution and (2) withholding judicial consideration would cause hardship to the
parties. Abbott Laboratories v. Gardner (US 1967).

h. Standing
i. History
1. Before enactment of the APA, a plaintiff had to prove that he satisfied the
elements for a writ of action against the government or that he satisfied
the elements for a common law claim
2. The APA revamped the system; it made actions against the government
presumptively reviewable democratic revolution
ii. Note: still need to meet constitutional standing requirements despite citizens
suit provision (authorizes private parties to sue other private parties or
government officials for violating statutes and regulations)
iii. Standing test from Association of Data Processing Service Organizations, Inc. v.
Camp (US 1970):
1. To establish standing to challenge government action, the plaintiff must
meet: (1) constitutional standing requirements, and (2) prudential standing
requirements.
a. The constitutional standing requirements: injury, causation,
redressability
i. Constitutional standing requirements cannot be overridden
by statute.
b. The prudential standing requirements
i. Prudential standing requirements can be overridden by
statute
ii. Prudential standing requirements are loosely based on the
statutory language of APA 702: A person suffering 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.
iii. But the prudential standing requirements are more basically
requirements that the court has evolved in its discretion to
assure that cases decided by courts are most appropriately
decided by courts. So court takes into consideration judicial
economy, separation of powers, etc.
1. So, for example, one of the prudential standing
limitations is that if an injury is suffered equally by all,
then courts are not the appropriate forum to redress
the injury. Rather the political branches are the more
appropriate institutions.
iv. Prudential Standing
1. For a plaintiff to have prudential standing, he must pass the zone of
interests test.
a. Zone of interest test = Whether the interest sought to be protected
by the complainant is arguably within the zone of interests to be
protected or regulated by the statute or constitutional guarantee in
question. ADAPSO.
i. The test requires that a person who brings a case must be
within the zone of interests of the statute that the person
claims is violated. You have to look at who/what interests did
Congress mean to protect.
b. Its a very permissive test.
Example of plaintiffs being within zone of
interest
Association of Data Processing Service
Organizations, Inc. v. Camp (US 1970)

Example where plaintiffs are not in zone of

interest (this is the last time since 1991 that
Supreme Court denied standing based on zone of
interests test)
Air Courier Conference of America v. American
Postal Workers Union (US 1991)

Facts: Suit was brought against the Comptroller of

the Currency by companies that performance data

Facts: Postal workers unions tried to challenge the

Postal Services suspension of its monopoly over

processing services for other businesses. The

Comptroller had ruled that national banks could
sell certain data processing services to their
customers and to other banks, thus competing
with the plaintiff companies. The plaintiffs claimed
they were in the zone of interest protected by the
Bank Service Corporation Act of 1962, which
stated that, No bank service corporation may
engage in any activity other than the performance
of bank services for banks.

international remailing services, under which

international air mail is bypassed by sending
letters to foreign countries and depositing them
directly into the foreign postal systems.
Held: the unions members lacked standing
because statutes granting the Postal Services
monopoly and allowing the Service to make
exceptions to that monopoly were written with the
public interest in an efficient mail service, and not
the interests of postal workers, in mind.

Held: The Supreme Court held that the Bank

Service Corporation Act gave the plaintiffs a legal
interest that protected them against violations of
the Act, so the plaintiffs had standing. The Court
based this conclusion not only on the language of
the statute but also on its legislative history. The
legislative history of the statute suggested that
Senators were concerned about banks engaging in
nonbanking activities, and that therefore the
statute could be read to protect a whole host of
interests. In applying the zone of interest test,
the Court was very permissive in that it only
required a plausible explanation for how the
statute runs to the benefit of various categories.
v. Constitutional Standing
1. Three parts:
a. Injury-in-fact
i. An invasion of a legally-protected interest which is (a)
concrete and particularized (meaning that the injury must
affect the plaintiff in a personal and individual way) and (b)
actual or imminent, not conjectural or hypothetical. Lujan v.
Defenders of Wildlife (US 1992).
b. Causation
i. There must be a causal connection between the injury and
the conduct complained of. The injury has to be fairly
traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not
before the court. Lujan v. Defenders of Wildlife (US 1992).
c. Redressability
i. It must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. Lujan v.
Defenders of Wildlife (US 1992).
2. Injury-in-Fact
a. Injury complained of must be actual or imminent.
i. Lujan v. Defenders of Wildlife (US 1992) Here, the injury
was not actual or imminent.
1. Facts: The plaintiffs challenged a rule promulgated by
the Secretary of the Interior interpreting 7 of the
Endangered Species Act of 1973 in such fashion as to
render it applicable only to actions within the United
States and not to actions in foreign countries. The
plaintiffs attempted to establish their injury by
claiming that the ESA rules failure to protect
endangered species in foreign countries would limit
their ability to observe those endangered species in
the future.

2. Held: The plaintiffs have not shown injury. The

plaintiffs injury is not actual or imminent in the sense
that they do not have plans to travel to the countries
where the animals they are concerned about might go
instinct.
b. Procedural violation by itself does not satisfy constitutional
standings injury requirement.
i. Lujan v. Defenders of Wildlife (US 1992)
1. Facts: The plaintiff, Defenders of Wildlife, argued that
the statutory requirement for inter-agency
coordination created a procedural right to such
coordination in the public enforceable by any person.
2. Held: The Court rejected this argument, perceiving it
as showing nothing more than a generalized
grievance with an alleged agency failure to comply
with the law. Allowing the plaintiffs standing based on
a procedural violation argument would violate
separation of powers in that the appropriate forum to
ensure the functionality of government is the
executive and legislative branches.
3. Redressability
a. Lujan v. Defenders of Wildlife (US 1992) example of where
plaintiffs have failed to establish redressability
i. Facts: The plaintiffs sought a declaratory judgment that the
new regulation requiring consultation only for actions taken
in the United States was in error and an injunction requiring
the Secretary of the Interior to promulgate a new regulation
restoring his initial interpretation that the obligations
imposed by the Endangered Species Act extend to actions
taken in foreign countries.
ii. Held: The plaintiffs alleged injury would not be redressed by
the relief sought. Even if the Department of Interior
promulgated a new regulation restoring its initial
interpretation, that regulation would not be binding on
agencies providing funding for foreign projects. Furthermore,
the money that US agencies give comprises only a small
portion of the total funding for these foreign projects. If that
fraction of funding were to be eliminated, the projects would
probably still continue and the species would probably still be
harmed.