Admin Condensed Outline
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Adjudication- page 4
o Impacts a small amount of people
o Agency based on individual considerations
o Agency decision may be somewhat retrospective
o Agency appears to be acting as a court or in a court like manner
 Loundoner is the basic case for adjudication – page 4
o Due Process Pg. 4-9
 5th amendment applies to the federal government
 14th amendment applies to the states
 Matthew v. Eldrige Test (Pg. 7-8)- is the main test to determine how much
process is due (and to some extent if process is due)
 The private interest that will be affevalue cted by the official action
o The Rights v. Privileges, grievous loss play into the size of the
private interest and if there is a private interest (Goldberg
public rights and new property for example)
 The risk of erroneous deprivation of such interests through the
procedures used, and the probable value of additional procedural
safeguards
o This is the most important prong
 The government interest including the functions involved and the
fiscal and the administrative burdens the additional procedural
requirements would entailo This is the easiest to manipulate
o What is a property interest (Paul v. Davis no liberty right in reputation, must be a
previously held state right)
 Right v. Privileges, Grievous Loss, and Goldberg- Page 5
 Bailey v. Richardson and McAufflie v. New Bedford both said that
employment is a privilege and therefore there is no property right
 Joint Anti-Fascist Regime v. McGrath found that procedural due process
protects against grievous loss
 Goldberg creates a new property right which may involve public
assistance from the state (old property is personal property that you
can lay your hands on)
o The recipient received a hearing regarding the termination of
his welfare benefits but only on appeal after he had
o The P in Matthews face a similar situation but because he was
on disability the court found he had other avenues for income
and therefore his property loss was not as great
 Life Liberty Property
 Roth and Sinderman (pg. 6) found that there could be a property
interest if there is an entitlement to the employment
o
o
Basically if there is termination during a K, if there is a tenure or
de-facto tenure system, then there may be a property right to
employment (If there is an entitlement to the employment then
there can potentially be a property right in the employment)
 Loudermill (pg. 8) found a property interest in employment of a civil
servant
o Court here required some kind of hearing prior to discharge of
an employee when there is a constitutionally protected
property interest
 Castle Rock found where the government has discretion to provide the
benefit to provide the benefit then there is not a protected interest
 Ingraham v. Wright court defers to the legislative judgment, ruling that
corporal punishment in schools does implicate a constitutionally
protected property interest but that state C/L remedies are adequate
protection
o Goss v. Lopez (pg. 9) presents us with a Goss type hearing
which is a basic hearing, at least some form of rudimentary
precautions against unfair or mistaken finding of misconduct
 James Daniel Real Property found that a house is a property interest and
that an ex parte hearing was insufficient process
Formal Adjudication- S. 554 S. 556 S. 557
 The magic words that trigger formal adjudication are A HEARING ON THE
RECORD- Pg. 10
 The record provides something for judicial review
 A statutory requirement that there be a public hearing is insufficient in
the majority of jurisdiction (Sea Coast it is sufficient)
 Chemical Waste Management (Pg. 10) stands for the proposition that
the presumption is for an informal and deference to agency
determination of informal or formal proceedings
 Requirements for formal adjudications (per 554) (pg. 9)
o An impartial and unbiased presiding officer
o Notice and opportunity to participate
o The right of parties to appear with counsel
o Right to present oral and written evidence (including rebuttal)
o Right to conduct cross examination
o The right to submit proposed findings, conclusions, and
exceptions
o The compilation of exclusive record upon which the agency
must base it’s decision
o Limitation of ex parte communication
 The rules of evidence do not necessarily applicable under the APA
 A preponderance of the evidence is sufficient standard of proof to make a
determination under formal adjudication (Steadman v. SEC pg. 11)
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A adjudicator can perform both duties as a finder of fact and concluder of law as
long as both task are performed separately and separate findings of fact and law
are issued (Withrow v. Larking pg. 11)
 Bias- Antonia v. SEC (pg. 12) found that an SEC commish had abuse his
discretion for him not to recuse himself from an adjudication after making
biased statements in public prior to the conclusion of the adjudication
Non-Delegation Clause (Pg. 12)
o Basic rule behind the non-delegation clause is there has to be clear, intelligible
principle of general policy and standards
 The agency refine rules but cannot define them
 Intelligible principles is very broad, the limits are if instructions are vague and
broad
 If all goals, purposes, and factors are laid out than this works up to an
intelligible principle (only twice in the 30s has an agency not been
upheld) – congress has a ton of leeway
o Whitman Trucking (pg. 13) Congress must lay down by legislative act an intelligible principle to which a
body authorized to act is directed to conform
o The Amtrak cases provide that powers cannot be delegated to a private entity, must be
a public entity
 SCOTUS held that Amtrak was a public entity (despite congressional
pronouncement to the contrary as congressional pronouncements are not
binding or authoritative)
 Arbitration looks private but can be public
Rulemaking (pg. 15)
o Nat’l Petroleum Refiners Assn states the agencies have the choice between rulemaking
and adjudication (agencies prefer rulemaking)
 Reasons is because it’s more efficient (time and money) more fair, provides
better clarity, and provides broader input as more people are involved
 Rulemaking has to be prospective, cannot be retroactive (
o Formal is covered by S. 553, 556, 557
 On the record, nearly trial like way to engage in rulemaking, rarely encountered
today
 Formal rulemaking is not required for an after hearing requirement in the
organic statute (U.S. v. Florida East Coast RR pg. 17)
o Informal S. 553 and S. 555 – Notice and comment rulemaking, less formal than trial
 Notice shall have general notice in the federal register, making the rule
published (this is the notice)
 Statement of the time, place, nature of public rulemaking proceeding
 Reference to the legal authority of the proposed rule
 Either the terms of substance of proposed rule
 S. 555 provides the comment requirements
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“agency shall give interested parties an opportunity to participate in the
rule making through submission of written data, views, arguments, etc.”
i.e. comment
Logical Outgrowth Test (Pg. 15)
 Deal with notice and the notice is adequate if the changes to the
original plan “are in the character of the original scheme and the final
rule is a logical outgrowth of the notice and comment already given
o Notice is adequate if
 The final materially alters the issues involved in the
rulemaking
 Or it substantially departs from the terms or substance
of the proposed rule
o Chocolate Manufacter’s Assn (pg. 15) found that chocolate milk
being pulled off the approved WIC list without additional
comment was not in the logical outgrowth of the proposed rule
under notice and comment because Chocolate milk was
originally on the list
Concise General Statement (US. v. Nova Scotia Food Products Corp)
o In Nova Scotia the court found the promulgated rule “arbitrary
and capricious” because the agency failed to consider the
economic impact of the the rule, nor did they make the data
available for judicial review (the how and why)
 Needs to identify major issues of policy and explain why the agency
resolved them in the ways that it did
o Courts should be able to determine how the agency defined
the relevant issues (i.e. a reasoned explantion)
 Agency explanation should identify f acts or policy that support the
decision (discussed in U.S. Tankers v. Dole)
o This need not be exhaustive but needs to explain the why
 Court should be able to determine how the relevant issues are defined
by the statute (Automotive Parts and Accessories v. Boyd)
Non-Rule Rulemaking and Non-Legislative Rulemaking
 Do not need notice and comment for this
 General Statement of Policy (Mada-Lua)
o An agency’s announcement of their tentative intentions for the
future. Does not establish a binding norm and cannot be relied
upon as law.
 Can be repealed and superseded without notice and
comment
 Interpretative Rule (American Mining Congress)
o Agency interpreting an already previously promulgated rule, no
notice and comment needed
Vermont Yankee (pg. 17) stands for the proposition the courts cannot impose
additional procedural requirements for agencies that are not in the APA
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Agency procedure comes from the constitution or the APA- agencies are
generally free to fashion their own rules of procedure , and courts may
not second guess these sorts of agency decisions
Judicial Control of Agency Choice (pg. 18)
 Chenery states that courts must judge the propriety of agency action
solely on the grounds invoked by the agency
o Courts cannot substitute what it considers to be adequate and
proper basis
o The basis for agency action, however, must be clear so that
courts are not compelled to guess at the reasoning underlying
agency action
o Agencies are free to choose between rulemaking and
adjudication, and have a lot of discretion in choosing between
adjudication and rulemaking (Heckler v. Williams pg. 19)
 Rulemaking has to be prospective (Wyman Gordon) and agencies are
not precluded from announcing new principles in an adjudication
proceeding)
Distinction between Public and Private Rights (Pg. 19)
 Private Rights litigated between parties
 Public rights are conferred by the government
 Marathon Pipeline stated three principles (Pg. 19, bery formalistic)
o Private right suits may not be adjudicated by agencies
o Public right suits may include litigation between private
individuals based on statutory claims by congresss
o Non- Art III (adjunct courts), including administrative agencies,
must be so limited to “the essential attributes” of judicial power
retained by Art. III courts
 Test to determine between Art III courts and adjudication (from Schor
pg. 19)
o Consider the extent to which essential attributes of Art. III
court are (should be) reserved to them?
 Question is how much the agencies look like a court?
 The agency can adjudicate narrow issues
related to claims and conduct arising out of the
agency legislation (i.e. public rights)
o Consider the origins of the rights?
 Three traditional exceptions to Art III courts
 Territorial Courts
 Court martials and military courts
 Sovereign Immunity
o All three of these are outside of courts
created or mentioned in Art. III
o Consider the congressional concerns that motivated deviations
from the traditional scheme
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In short it is OK for non-art III courts to handle private rights if
they are narrowly related to the public rights at issue
 In Stern v. Marshall (pg. 20) the court says Art. III prohibited the state
law tortious interference claim from being litigated in a bankruptcy
court because the state law claim was not closely integrated into the
bankruptcy claim
the Legislative Veto (pg. 20)
o Congress cannot overturn an agency adjudication through a legislative veto (overturn
am executive decision via a singular legislative action
o In INS v. Chada Congress possessed a legislative veto that could override a suspended
deportation proceeding
 Problem is it is a violation of SOP for two reasons (pg. 21)
 Bicarmalism requires both houses to be involved for a veto (where only
one sub-committee in one house acted here)
 Presentment to where a veto must be presented to the executive (not
here)
Appointments (pg. 21)- N&P clause and Appointments clause
o Appointments clause (Art. II S. 2 Cl. 2) provides that the president can appoint, with
advice and consent of the Senate, …….appoint all other officers (ones established by
law)
 Officers does not include all employees, only ones that exercise significant
authority (includes both principle and inferior officers)
o Buckley v. Valeo dealt with a statutory scheme where 6 members of the FEC board, 2
were appointed by POTUS, 2 were appointed by the speaker of the house, and 2 by the
senate
 Court said this violates the SOP as congress is precluded form vesting the
power of appointment in itself- Congress can’t appoint officers of the United
States
Removal (pg. 22-24)
o The power removal is incidental to the power of appointment (Myers v. U.S.)
o The President can remove
 Principle officers who perform purely executive functions
o Congress can place limits on the removal of officers who perform quasi-legislative and
quasi-judicial functions (Humphreys’s Executor pg. 22)
 For example good cause
o For Inferior Officers
 Myers, as read through Morrison tends to suggest the president’s unfettered
ability to remove purely executive officers exists only when removal restrictions
impede POTUS ability to faithfully execute the law (i.e constitutional duties)
 Morrison v. U.S. page 23 gives a four part test to determine an inferior
officer
o Is the officer subject to removal by a higher executive branch
o Does the officer only have certain, limited duties
o Is the officer’s job limited in jurisdiction
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o Is the officer’s job or the officer limited in tenure
 Edmond gives an alternative approach to whether one is an inferior
officer
o Whether one is an inferior officer depends on whether one has
a superior
 Free Enterprise Fund (pg. 23) said two layers or more of for cause removal
restrictions for officers exercising significant governmental authorities
Judicial Review (pg. 24-28) S. 706
o S. 706 (pg. 24) provides says “a reviewing court shall decide all relevant questions law,
interpret constitutional and statutory provisions, and determine the meaning or
applicability of the terms of agency action.
 Court can do two actions
 Compel agency action
 Hold unlawful and set aside agency findings, conclusions, and functions
o This can be based on judicial findings that the agency acted in a
manner that is
 Arbitrary and capricious, and abuse of discretion, or
otherwise not in accordance with the law
 Unsupported by substantial evidence
o Court shall review the record on the whole
 Universal Camera Corp (pg. 24) the precise way in which courts interfere with
agency action is not based on words in the standard of review but rather in the
mood of how much deference
 Substantial evidence standard of review is more deferential than
clearly erroneous but less deferential than a jury determination of fact
 Substantial evidence means the whole record is reviewed
o State agencies are de novo review and state courts are not bound by state agency
decisions (Jewish Hospital pg. 24)
o Scope of Review of Law (pg. 25-26) Skidmore, Chevron, and Mead
 Skidmore (pg. 25) announces a standard of review that allows for a fair
amount of deference to the administration in a totality of the circumstances
type test
 Basically the court can allow the amount of deference they want
 Chevron (pg. 25) gives a two step approach to agency interpretation
 Has congress spoken to the precise issue in question (i.e. is the statute
ambiguous)
o If the congressional intent/statutory language clear and
unambiguous then the agency get not deference
 If the statute s ambiguous then is the agency interpretation
reasonable in light of the underlying law?
o For reasonableness a court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by an agency
o Chevron is a high level of deference
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Mead (pg. 26) involves Chevron step zero which first determines whether an
agency even gets Chevron deference or does Skidmore apply?
 Chevron does not apply where there is no express authorization for
rulemaking by congress
o Non-legislative rulemaking (i.e. interpretive rule) will get
Skidmore (less than Chevron)
 Examples include policy statements, agency manuals,
enforcement guidelines
o Scope of Review of Exercises of Discretion i.e. What is a hard look (pg. 26-28)
 Hard look is arbitrary and capricious in the context of agency policy making?
 Overton Park (pg. 26-27) stands for the proposition that to survive an
arbitrary and capricious review a court
o Considered all relevant factors and
o Offer a plausible explanation for the decision
o Agency must show its work via a plausible explanation using
relevant factors
 State Farm (pg. 27) lays out a four part test for arbitrary and capricious
review
o Did the agency rely on factors congress did not intend the
agency to consider
o Did the agency entirely fail to consider important aspects of
the problem?
o Is the agency decision inconsistent with the evidence?
o Is the agency decision so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise
 State farm also states that the agency must examine all relevant dayta
and articulate a satisfactory explanation including a rational connection
between the facts found the decision made
 Brand X (pg. 27) states that a court’s prior judicial construction trumps
an agency construction otherwise entitled to Chevron deference ONLY if
the prior court’s holds that it’s construction follow from unambiguous
teerms of the statute and there is no room for agency construction
o Can be no gap for the agency to fill
o Preclusion (pg. 28)
 In order to preclude judicial review congress must explicitly preclude judicial
review (Johnson v. Robinson pg. 28)
 Consitutional issues cannot be precluded though, only review of agency
decision
 Has to be explicit, courts are not big on implied preclusion, if congress wants to
preclude judicial review then it needs to be explicit
Standing (pg. 28-31)
o Standing under S. 702 of the APA can be achieved if a P can show that
 They have suffered a legal wrong because of the challenged agency action OR
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o
o
o
o
That they are adversely affected or aggrieved agency action within the meaning
of the zone
A plaintiff must meet both the constitutional and prudential requirements for standing
Three part test for constitutional standing from Lujan v. Defenders of the Wildlife (pg.
28-29)
 Plaintiff must have an injury in fact
 Must be concrete and particularized and imminent, cannot be
speculative
 There must be a causal connection between the injury in fact and the conduct
complained of
 The injury has to be fairly traceable to the conduct complained of and
cannot the be result of independent action of a 3rd party before the
court
 The injury must be likely, rather than merely speculative, redressed by a
favorable court decision
Past exposure to illegal conduct does present a case or controversy unless
unaccompanied by continuing adverse effects.
In FEC v. Akins (pg. 29) the court said non-disclosure of campaign contributions was a
particularized and concrete injury because more information equals a better electorate
For Taxpayer standing (has never been extended beyond the Establishment Clause)
 The taxpayer must establish a logical link between the and type of legislative
enactment attached
 Has to be a exercise of the of taxing and spending clause
 The taxpayer must show the challenged enactment exceeds the constitutional
limitis of the taxing and spending power and not simply beyond the powers
delegated to congress
Prudential Requirements mean the challenging party is within the zone of interests
congress had in mind in enacting the statute
 Two part analysis for Prudential standing (pg. 29)
 Analyze the statutory provisions at issue to identify the interests
arguably to be protected by provision
 Determine whether the P’s interests affected by the agency
determination are among those to be protected by the statute
 NCUA (credit union case pg. 31) is the high water mark for prudential standing
 Proper inquiry is if the interest sought to be protected by the
complainant is arguably in the zone of interest protected by the
stautute
o Have to show that congress generally had you in mind when
formulating the statute
 Chicago Junction (pg. 29)- Private entity can have standing through the public
interest
 Alabama Power (pg. 29)- Injury of competition was not within zone of interest
of a statute subsidizing power
 Air courier (pg. 30) –Loss of jobs not in zone of interest, only revenue
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So while the Ps did suffer an injury and fact and met the constitutional
requirements, they fell short of the prudential requirements
Ripeness, Finality, and Exhaustion (pg. 31-34)
o Ripeness (pg.31-32)
 Two part test for Ripeness from Abbott Labs (pg. 32)
 Fitness for judicial review
o No questions of fact remain to be decided
 It’s a purely legal question remaining and the record for
judicial review already exists
 Hardship to parties for withholding judicial review
 In Abbott Labs the case was ripe and in Toilet Goods the case wasn’t ripe (bot
cases pg. 32)
o Finality (pg. 32-33)- about what the agency does
 S. 704- As a general matter two conditions must be met for agency action to
be final
 Two part test for finality
o Action must mark the consummation of the agency’s decisionmaking process
 Cannot be merely tentative or interlocutory nature
o Must be an action from which legal consequences will flow or
form which rights or obligations have been determined
 Sometime agency inaction can be a final action for the purposes of
finality under the APA
o Exhaustion (pg. 33-34)- about what the litigant does
 Generally a court wants you to exhaust prescribed administrative agencies
before seeking judicial review
 Cts. want Ps to jump through the administrative hoops
 Three general exceptions to exhaustion (pg. 34)
 If administrative remedies would be inadequate because of questions of
agency jurisdiction
 If there would be any undue bias by the agency
 If the administrative procedure would take such an amount of time as
to amount to undue prejudice