ADMIN LAW ANNALS
ANNAL
AUTHORITY
INTERPRETATION/APPLICATION
OVERVIEW
Agency Powers
The Process
When a Hearing
is Req’d
Jurisdiction and
Separation of
Power
(1) Rule-making
i.e. – SEC rules and regs regarding the financial institutions; OSHA rules regarding workplace safety
(2) Adjudication of cases (hearings)
(3) Other Agency Action (other powers)
Generally in-house administrative issues – these are the decisions that can be made with very little review or risk of being
overturned i.e. – moving the DL station to Ankeny
(1) Determine what power the agency is exercising
(2) Identify constitutional and statutory requirements imposed on the exercise of that power
o Sources of Requirements:

APA

Constitution still requires due process before an agency or ALJ – must determine what agencies
must do to honor those processes (Goldberg and Matthews)

Agency-specific statutes

Creates the powers of the agency set forth by the legislature and sets forth requirements
for agency decision-making
(3) The third step is determining the ground upon which agency action can be overturned (6):
o (1) Agency acted unlawfully, arbitrarily, or capriciously or it abused its discretion

Airline Pilots, Nova Scotia, SEC, Motor Vehicle Manufacturers
o (2) Agency violated the Constitution Goldberg , Perry, Loudermill,
o (3) Agency exceeded its statutory powers
o (4) Agency failed to follow req’d procedures Morton
o (5) Agency decision in adjudication not supported by substantial evidence Nova Scotia
o (6) Agency decision not supported by facts in the record Nova Scotia, Industrial Union
ADJUDICATION
Some Kind of Hearing by Justice Friendly
Constitutional Req.
Albert Case v. IA Real Estate Commission (if IA Real
(1) Liberty or property interest? (a due process question)
Estate Commission had simply held a hearing regarding
(a) Property is any benefit for which there is a statutory
the termination of Albert’s clients license they would
entitlement – thus people have property interest in welfare
have known he had an open office as req’d but was out of
benefits, food stamps; essentially any program for people
town due to the death of his father.)
who meet certain eligibility requirements constitutes an
entitlement and therefore a property interest. Property
US v. Fl East Coast RR Co. (1973)
interest is also held in an occupational license.
Facts
Due to a chronic freight car shortage Congress enlarged
**Something is a property interest if a statute sets forth
the power of the Interstate Commerce Commission to
qualifications to meet for that entitlement. Hearing req’d
pass regulations after a hearing=Rulemaking on the
before termination of a statutory entitlement even where
record. The ICC prescribed a per diem rate charges for
statute does not provide one.
the use of one company’s freight car by another. The
(b) Liberty interests include the freedom to practice the
hearing allowed written submission but did not include
profession of your choice – thus, occupational licenses could
oral arg. Challenged by RRs.
involve both property and liberty interests
Holding: Hearing with written submission is sufficient
 “engaging in the common occupations of life”
in the context of a rulemaking on the record.
 marry
Analysis
 acquire knowledge
Administrative rulemaking hearings have much lower
 raise children
req’s than admin adjudications. Since there had been no
(2) Statutory Req.
effort to single out a particular RR, the court found the
 Statute may require a hearing. This is different from a
agency’s action was basically a legislative type judgment
statutory entitlement, which implicates due process.
as opposed to an adjudication, which could entail due
Some statutes expressly preclude hearings.
process hearing rights.
(3) Form/Timing: Goldberg; Mathews; Hamdi
CFTC v. Schor (1986)
3 Exceptions to Art 3 Absolute Vesting of Judicial Power in
Facts: Investor loses a boatload in the futures market.
the Judicial Branch
CFTC was given the statutory authority by Cong. to
(1) territorial
resolve disputes btw investors and brokers.
(2) courts-martial
Procedure: Files fed case against broker for fraudulent
(3) courts that adjudicate certain disputes concerning public
practices and voluntary dismisses. Brings case to CTFC
rights
and loses then appeals to fed ct claiming CTFC lacked
Art. 3 jurisdiction to here state law counterclaim.
Agency Expertise
An agency’s expertise is superior to that of a court when a
Holding
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How Much
Process is Due
Timing (Pre or
Post
Deprivation)
Due Process
Requirements
Ct held that the cong. grant of power to CFTC to hear
dispute centers on whether a particular regulation is “reasonably
state law counterclaims that can also be brought before
necessary to effectuate any of the provisions or to accomplish
Art. 3 courts was const’l.
any of the purposes” of the Act the agency is charged with
enforcing; the agency’s position, in such circumstances, is
Analysis
Cong granted CTFC concurrent not exclusive jurisdiction therefore due substantial deference.
so the state-law counterclaims can also be heard in fed ct.
CTFC has limited power to hear claims incidental to and
dependant on reparations claims so executive intrusion
into judicial power is minimal.
Three Factors. Mathews v. Eldridge
(1) Private Interest: The interests of the individual in retaining their property, and the injury threatened by the official action
(2) Govt Interest: The costs and administrative burden of the additional process, and the interests of the government in
efficient adjudication; and
(3) Risk of Erroneous Deprivation: The risk of error through the procedures used and probable value, if any, of additional
or substitute procedural safeguards.
Goldberg v. Kelly
Facts
Agency allowed for written post deprivation contestation for termination of welfare benefits but no hearing.
Holding
A pre-deprivation hearing is required before termination of welfare benefits. Eligibility criteria were set out so it was a
const’l property interest.
Analysis
(1) High risk of erroneous deprivation – high level of individual property interest to the extent that welfare secures basic
necessities
(2) Gov’t interest in cost and efficiency not sufficient to outweigh property interest such that DP shouldn’t be fully
recognized
(3) Where veracity and credibility play a role in determination there is a greater need for a hearing. Written appeal may be
insufficient if individual is uneducated and unsophisticated.
Matthews v. Eldridge
Holding: SS disability benefits determination can be made on basis of medical records without a pre-deprivation
hearing. Post-dep hearing sufficient.
(1) Question of continuing disability can be adequately determined objectively by med records. Veracity and credibility not
much of a factor. No possibility of pleading excuse or mitigation. Ease of forms did not warrant concerns in Goldberg.
(2) Low risk of erroneous deprivation; ie further procedures provided for back-payment of benefits that were erroneously
terminated
(3) Disability benefits are not sustenance benefits.
Hamdi v. Rumsfeld (2004)
Facts: US citizen who was either doing relief work in Afghanistan or engaging in war against the US (captured with a gun
by coalition forces and turned over to US military). US military made the determination that he was an enemy combatant
without holding a hearing.
Holding: The DOD is req’d to hold a hearing in conjunction with the determination of a U.S. citizen as an enemy combatant.
Analysis:
(1) Private interest of the individual in a hearing.
a. Ultimate deprivation of liberty greatly exceeds private interest in Goldberg
(2) Govt. interest in refusing to hold a hearing
a. Financial and human resources
b. National security interest
(3) Risk of error (tipping factor here)
a. Wacky procedures result in high risk of error and denial of due process
b. No right to counsel
c. No right to present or rebut evidence
d. No right to appeal
e. No right to impartial decision maker
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Public
Employment
Termination
Board of Regents v. Roth
Holding & Analysis
(1) No property interest in a year-to-year teaching K
b/c no reasonable expectation of continued
employment. No contractual entitlement.
(2) No liberty interest (a) nonrenewal was not based on
a charge against him that might damage his standing in
the community (b) No stigma to limit ability to get
future employment.
Perry v. Sinderman
Holding & Analysis
 Hearing req’d where employee has implied
tenure. Implied tenure=property interest.
 Implied tenure where college does not have an actual
tenure system but employment manual stated that
teachers should feel like they have permanent tenure
as long as they do their job satisfactorily, cooperate
with co-workers, and they are happy in their job.
 1st A Freedom of Speech: outspokenness led to his
termination. This alone would provide a separate
basis on which to maintain the action.
Property Interest
Ppl have property interest in employment to which they are
contractually entitled. Must be expressly included in the K.
Tenure or civil service protection creates an entitlement b/c you
can only be fired for just cause.
 “just cause” means a cause, which directly or indirectly
significantly and adversely affects the ultimate goal of
the agency. Bd v. Davies (1992) (off-duty theft is just
cause to fire a teacher); Carol Public School Dist Case
(2002) (teacher acquittal of marijuana possession is not
just cause)
Liberty Interest
 If the government action in firing a person somehow
deprives a person of a legitimate chance to get another job
or damages there standing in the comm’y, then that is a
deprivation of a liberty interest and a hearing is req’d.
 Stigmatizing Action: ie press release, press conference,
something in the file, disciplinary action.
 Charles City Music Teacher Case (2001) (grammy award
winning music teacher reprimanded for comments about
music program budget cuts at grammy ceremony. Hearing
was req’d)
Cleveland Bd. of Ed. Loudermill (public employees
have the benefit of Civil Service protection 
establishes per se property right in employment)
 If public employer wants to fire public employee,
must hold a hearing and provide notice and
opportunity to be heard
Managing ALJs
Statutory
Hearing Rights
Nash v. Califano (corner-cutting techniques instituted by
Goal of APA Sec 556 is to ensure independence of ALJ
agency are not invalid so long as ALJ is able to remain
decision making from agency
completely neutral)
o No adverse job action can be taken against ALJ depending
(1) Quotas for the number of decisions an ALJ must
on how case is decided
make each month
o Sec. 556 insulates ALJs from influence of agencies
(2) Peer review, monthly quotas, evidentiary/use of
o Under 556 salaries of ALJs must be off budget cannot be
expert guidelines
contingent on how they decide cases
(3) Quality assurance – SSA  meet 50% reversal
o ALJs must docket conversations with Agency directors
rate expectation or face incompetency charges.
o Decisions must be made on the record and ALJs are duty
(4) Regional review of ALJ decisions
bound to decide the case only on law and facts
Heckler v. Campbell (1983) (ALJ can rely on published data re: job availability so long as process was promulgated pursuant
to proper rule-making authority)
(1) Claimant still receives individualized inquiry as to extent of disability. Claimant carries substantial evidence burden.
(2) Use of data grids (opposed to vocational expert testimony) doesn’t deprive claimant of DP. BLS statistics are more
accurate.
(3) Availability of jobs determination in SSA disability hearings is based upon ‘national’ availability, not local
availability
(4) Process was fair because evenly applied and rulemaking conformed with APA
Airline Pilots v. Assoc. v. Quesada (rule precluding hearings for pilots over age 60 will pass scrutiny when there is a rational
connection between the rule adopted by the agency and its purported purpose)
(1) In this case, the public interest in protecting people flying on planes strongly outweighed the individual property
interest in maintaining a job as a pilot
(2) Based upon scientific and medical data that age is the strongest predictor of heart attacks, court determined that
excluding pilots over sixty based upon rulemaking was rationally based
(3) Notice and opportunity to be heard provided at rulemaking stage. Where the rule delineating eligibility criteria is
rationally based, failure to meet criteria is not a deprivation of a property right.
Adjudicative
Know the narrow issue before the ALJ and be familiar with the applicable statute. Albert Case v. WDM School District
(School Dist did not refer to statute instead argued it would be wrong to move against teachers.)
Richardson v. Perales
Substantial evidence is the burden of proof at an Admin
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Process
Adjudicative
Consistency
Rulemaking
CFR
Rulemaking
Authority
Holding
Written medical reports of a three independent specialists
who have not been subpoenaed alone constitute
substantial evidence supportive of a finding of nondisability. ALJ does not abuse his discretion in relying
on opinion of medical advisor.
hearing.
 Hearsay is allowed
 Reliability: is agency position supported by multiple
independent witnesses.
 Was agency evidence compiled pursuant to a well
established agency routine.
Independent Expert advisers are appropriate. They are
neutral advisors who serve as specialists for layman trial
examiners.
Discovery
 ALJ subpoena power
 Freedom of Information Act – agencies statutorily
required to respond to a FOIA request.
Adjudicatory Req’s
Notice, impartial decision maker, opp to be heard, cross-X
Stare decisis: carries less force. However, agencies decisions departing from prior law should be explained expressly
invoking APA Sec. 706. Bush-Quayle Primary Comm’y v. FEC.
Res Judicata: similar to the regular doctrine for plaintiffs. Collateral estoppel not applied to govt. in cases v. different
parties. US v. Mendoza.
Estoppel: Does not apply to the gov. for unauthorized statement by employee for a money claim. OPM v. Richmond.
RULEMAKING
Two types of rulemakings.
Formal (On-the-record-rulemaking)
 Hearing must follow APA procedures ie notice, impartial decision maker, opp to be heard etc.
 Rarely used. Most typical are rate making  state utility commission adopts a rate. Florida East Coast case.
o Agency committee members are present, utility makes their proposal why they should be able to increase
rates, then the public gets to be heard.
 Fed agencies do this infrequently. NRC does it due to high stakes involved w/ nuclear energy: involves live witnesses
and cross-X; more involved than regular formal rulemaking.
Informal Rulemaking (Notice and Comment Rulemaking)
 Used in about 95% to 98% rulemaking on both fed and state level.
 Big APA reform that precludes agencies from making rules behind the closed doors
 Agency rule is adopted via final order.
(1) Notice: Agency must publish notice of intention to adopt rule in Federal Register. The notice states that agency
intends to adopt a rule with such and such effect.
(2) Comment: public and industries affected can comment on the proposed rule in writing to the agency for a specified
period of time. Agencies are supposed to read the comments before adopting or declining a rule and then the decision is
informed by the comment. Must read every single comment. Then they must respond to them in the order 
summarize the objections. This is all public record. There are emergency procedures for cases of public safety where
comment period can be shortened.
CFR is the endpoint of agency rulemaking
In 1944, Maury Maverick, Texas Congressman, defined agency speak as gobbely gook by pompous turkeys.
If it is in CFR it is a substantive rule.
National Petroleum Refiners Assoc. v. FTC (1974)
APA Section 706: Grounds for Challenging an Agency Rule
Black Letter: must refer to the enabling statute to
(1) Arbitrary and capricious. (National Petroleum Refiners
determine the extent of the rule-making power by the
Assoc.)
agency.
a. Rational connection btw rule and its purpose
Facts
(2) Contrary to constitution
Two trade assoc and 24 gas refining cos. challenges FTC
(3) In excess of statutory authority. (Pacific States Box &
rule that you must put an octane rating/number on a gas
Basket)
pump. FTC adopted this rule pursuant to Trade
(4) Disregard for legally required procedure
Commission Act their enabling statute creating FTC.
(5) Unsupported by substantial evidence
Holding & Analysis
(6) Unwarranted by the facts to the extent that the facts are
(1) Leg. Mandate: Statute allows FTC to prevent unfair,
subject to trial de novo by reviewing ct
deceptive acts (modern focus) and anti-competitive
acts (traditional focus) which include deceptive gas
pumps.
(2) Informal rulemaking was employed  Claimants
say FTC does not have the power to adopt
substantive rules and FTC exceeded statutory
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Substantive
Review Outside
APA
Substantive
Review Under
the APA
authority in violation of APA 706.
(3) Here the statute was broad enough to grant
substantive rulemaking authority (most are or the
agencies would have no teeth to effectuate the will of
Congress w/out holding a million hearings)
Rulemaking Procedure
Pacific States Box & Basket Co. v. White
Blackletter: Where there is a rational connection between a rule and its purpose it is not arbitrary or capricious.
Holding & Analysis
(1) Court found rational connection between box requirement and purpose of public health; and consumer deception
by providing opportunity for fruit to be seen by consumers and providing air flow for freshness
(2) There is a rebuttable presumption of constitutionality in agency rules.
(3) Agency rules have the force of law
Auto Parts & Accessories Assoc v. Boyd (1968)
Blackletter: formal rule-making is not required unless req’d by statute
Holding & Anlaysis
(1) No requirement indicated here, thus agency’s determination to proceed by notice-and-comment rulemaking was
acceptable
(2) Determination not arbitrary or capricious because req’ment of factory installed head restraint rationally (if not
completely) related to the purpose of National Traffic and Motor Vehicle Safety Act of 1966  preventing whiplash
injuries (public safety).
(3) Claimants concerns were already addressed during notice and comment phase and summarized in order.
National Tire Dealers & Re-treaders Assoc v. Brinegar (1974)
Facts: Req’s etching vitals on tires after retreading
Holding & Analysis
(1) Statute reqs all rules adopted by NTHSA be practicable  not met here
 Too labor intensive which goes beyond statutory authority
(2) Arbitrary and capricious: No causal link much less a rational relationship. No facts to suggest this rule will reduce
accident related deaths and injuries which is the stated purpose of the statute.
Procedural
Req’s of APA
Sec 553
Motor Vehicle Manufacturers Assocs of US Inc v. State Farm Mutual Automobile Insurance Co (1983)
Blackletter: the standard for rule revocation is the same as for rule promulgation – notice and comment, and decision must
not be arbitrary or capricious.
Hardlook Doctrine: roots of hard look doctrine  requires courts to take a more scrutinizing look at informal rulemaking
than had been taken under earlier applications of the arbitrary and capricious test.
Holding & Analysis
However, agency supplied no support or explanation for deleting airbag rule. Not a word in the record. No attempt to draw
the relationship.  Arbitrary and Capricious
American Mining Congress v. Mine Safety & Health Administration
Black Letter: Agency only has to follow APA rulemaking req’s if they adopt a substantive rule but not here where they
adopt an interpretive rule.
SUBSTANTIVE V. INTERPRATIVE FACTORS: Any one means it is a substantive rule. L/E CFR L APR
(1) In absence of rule, whether there is any adequate statutory basis for enforcement
o In other words, does the rule have ‘legal’ effect?
(2) Whether the ‘rule’ is located in the CFR
(3) Whether agency specifically invoked legislative authority
(4) Whether it amends a prior rule
US v. Nova Scotia Food Products Corp. (1977)
Black Letter: Agency must disclose scientific data underlying the basis for the rule in order to provide for meaningful
comment. Agency must respond to all comments.
Holding & Analysis
FDA violated informal rulemaking procedure by:
(1) Notice and Comment: failing to disclose data they relied on
(2) The Order: failing to address all comments and failing to provide concise general statement demonstrating rational
connection  arbitrary and capricious
USDA Case (USDA did rulemaking to pull inspectors to cut cost without doing notice and comment. Processors then
abandoned health procedures resulting in a vat of fecal soup.)
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Vermont Yankee v. NRDC
Blackletter: Courts cannot impose higher rulemaking standards than that which congress has determined to be appropriate.
 When a statute only requires informal rulemaking (the standards of which the AEC went well beyond), nobody, not
a court or the NRDC can impose formal rulemaking standards on the Agency.
Sierra Club v. Costle (coal-scrubbing case)
Blackletter: so long as comments become part of the docket, and are available for opponents to respond to, there is no
problem with agency accepting comments after end of comment period.
(1) CAA limits judicial review by providing that EPA rulemaking will not be overturned on procedural grounds unless
error was central to agency decision  late comments, late meetings, and inadvertently unlogged meeting not vital here.
(2) No prejudice: all challengers were given notice of late filed comments. Onus is on challengers to stay abreast of the
comments submitted.
(3) Members of congress and president can meet with agency after comment period provided no threats are made this
is a good thing. Helps meet the Congressional goals of openness and fairness.
*Note: The “docket” contains every sheet of paper involved in rulemaking and can be accessed in person or via FOIA
request.
*Note: Cannot simply accept agency statement that late or unlogged meetings were not vital  Order will contain
statement of reasons for the rule, if off record comments/meetings fall within these reasons then this is a red flag.
Implementing
Admin Policy
Without Leg
Rules
3 Ways Agencies
Acquire Info
Subpoena Power
Assoc. of Nat’l Advertisers v. FTC
Blackletter: impartial decisionmaker must be present in rulemaking as well as adjudication
(1) High Standard – must be clear and convincing evidence that commissioner has an ‘unalterably closed mind about
the proposed rule’
(2) Though FTC Commish had campaigned for the rule against advertising to children in an adversarial manner there
was no evidence he was not engaging in meaningful notice and comment rulemaking
(3) Agency member are encouraged to speak and engage and are not expected to check opinions at the door.
*Note: Commish eventually recused himself
SEC v. Chenery Corp.
Blackletter: An agency can establish a new principle of law through adjudication. While rulemaking is preferred, its rigidity
does not always allow an agency to fill unforeseen gaps in its regulation.
(1) In Chenery I SCOTUS held that SEC did not adequately set forth reasons for conclusion.
(2) On remand SEC recast rationale to provide adequate statement of reasons for decision and reached same conclusion
forbidding insider trading.
(3) On judicial review courts are limited in reviewing agency decisions to the reasons provided by the agency. Ct cannot
supplement agency reasoning in order to sustain agency ruling.
Morton v. Ruiz
Blackletter: Eligibility criteria for benefits administered by agencies are ALWAYS substantive and thus the BIA failed in
not specifically listing the ‘on or near’ reservations requirement in the CFR.
(1) BIA action contradicted the APA and its own internal criteria.
(2) BIA obtained funding on the ground that they provided benefits to NA’s near reservations. Congress did not
demonstrate intent to limit benefits to NA’s on reservations
(3) Eligibility criteria must be set out in rule (a) lets ppl know if they are eligible (b) ensures consistent decision making
on the part of the agency
*Note: Get the agencies internal procedures! Strong evidence.
GOVT. INFO ACQUISITION AND DISCLOSURE
Agency must have this info to ensure compliance
(1) Physical inspection of clients premises (OSHEA  workplace inspections, Dept of Health  restaurant inspections)
(2) Req’d Reporting and Record keeping
a. Periodic reports req’d
b. Large amt of time spent on this paperwork resulting in Paper Work Reduction Act
(3) Subpoena of Docs from both clients and witnesses
a. Least often employed. When individual does not cooperate in providing info to agency.
UPENN v. EEOC
Power to issue subpoenas – Three Requirements for
Facts: Prof alleged sexism and racism in refusal to grant
Subpeona:
tenure. EEOC subpoenaed info from employer in
(1) Information sought must be the type congress
connection with investigation of complaint. UPENN
intends the agency to have access to under the statute
refused and the dist. ct entered self-executing order
o EEOC – subpoena power to investigate
enforcing subpoena.
employment decisions; ie must have access to
*Note: All public and private employers are subject to
male tenure candidate info; confidentiality of
EEOC and can be investigated about employment
professors outweighed
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Physical
Inspections
FOIA: A
Discovery Tool
practices.
*Note: Agency Subpoenas are not self-executing and
compliance can be refused to no effect. Agency must
seek judicial enforcement of its subpoena.
Holding & Analysis: UPENN must comply.
(1) Congress purposely refused to provide academicevaluation privilege.
(2) 1st A not implicated. Govt is not trying to control
speech merely review it.
(3) Must have documents to determine if there is a
basis for the claim not vice versa.
Marshall v. Barlow’s, Inc. (striking down OSHA
warrantless search provision)
Analysis
(1) Ex-parte, no notice warrants still provide for
surprise inspections.
(2) Probable cause req’d. However not, trad’l
probable cause  just show that inspection conforms
with leg or admin standards. Must show specific biz
has been chosen on basis of general admin plan for the
enforcement of the act derived from neutral sources.
(2) Information must be relevant to some investigation
the agency has undertaken
o EEOC – tenure decisions for male professors
relevant to whether she was denied based on
race/sex
(3) Information request must be reasonably able to be
complied with.
****Businesses must prove that the agency subpoena
exceeds these requirements
This power must be conferred on the agency by statute.
Permits agencies to conduct physical inspections of the nonpublic areas on the premises of a regulated business
General rule: the 4th amendment attaches to business also;
but with exceptions:
o Closely regulated business – no reasonable expectation
privacy; not need warrant (liquor/firearm/restaurant, etc)
o If a business is not closely regulated, the government must
get a warrant. Warrantless inspection will only be valid
if:
(1) Must be a substantial governmental interestprotecting the public (poison food)
(2) Inspection must be necessary to further regulatory
scheme - nexus b/t warrantless inspection & purpose
(3) Inspection must have a constitutionally adequate
substitute for a warrant (ie notice)
i. Must be limited in: (1) time (2) place (3) scope
(warrant is limited in this same manner)
FOIA. A practitioner’s sword in an agency case. It can force information from an agency. This is critical b/c agency
adjudications are not subject to the federal rules of civil procedure, so you have to deal with whatever rules govern the
particular agency. Without FOIA, you’re stuck with whatever discovery the agency’s rules let you have. Every agency must
have a FOIA officer.
PRETTY MUCH EVERY CASE IS SUSCEPTIBLE TO FOIA REQUESTS
The exempted categories are: NIDS TM P/M L/E BG
(1) National defense or classified information.
(2) Internal rules and practices.
(3) Disciplinary procedures.
(4) Anything specifically exempted by a federal agency-specific statute.
(5) Trade secrets. This would be information the agency acquires from a business in the course of dealing with
that business. That information doesn’t have to be given up.
(6) Intra-Agency memos. These are basically memos that should be protected by A-C privilege or executive
privilege and the threat that its disclosure would present.
o Just because a memo by name, however, doesn’t make it immune
(7) Personnel or medical files.
(8) Investigatory records compiled for law enforcement purposes, but only to the extent that the production
would interfere with law enforcement proceedings.
(9) Bank financial Information
(10) Geological and geophysical information
Albert Case v. Mazda
 Mazda did not have adjustable seatbelts and lady was paralyzed in accident.
 Pres. of Mazda said that the problem was “news to me.”
 Pursuant to FOIA request with NTSHA Albert found written correspondences btw Pres of Mazda and NTSHA regarding
the problem.
 Jury verdict record.
Albert Case v. Hospital
 Hospital bed collapsed and killed child. Got regs on hospital beds from Fed Agency Dept of Health and Human
Services via FOIA.
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FOIA: Access to
Info Held by
Feds
 Bed mnfctr sent notices to hospitals that child should not be left alone with the beds
NLRB v. Sears, Roebuck & Co.
Blackletter: calling something an interagency memo doesn’t necessarily protect it from a FOIA request.
Facts: Sears thought they were being treated arbitrarily and demanded NLRB info re bargaining agreements via FOIA.
Holding: Anything dealing with past cases is subject to disclosure under FOIA since the case is closed it won’t compromise
the position of the agency in ct.
NLRB v. Robbins Tire & Rubber Co.
Blackletter: exemption 7 only applies if production of investigatory records would interfere with law enforcement purposes
(1) Witness disclosure could lead to witness intimidation before hearing
(2) Such disclosure could result in a disincentive to cooperate with government if person knew that identity and
statement weren’t confidential (especially considering most cases sttle and emplyr never knows who talked)
Chrysler Corp. v. Brown
Blackletter: FOIA does not work in reverse.
(1) Chrysler cannot bring reverse FOIA action seeking to prevent disclosure of trade secrets obtained via govt. K.
(2) No cause of action under FOIA to prevent disclosure of info. FOIA is not an anti-disclosure statute. Only disclosure
causes of actions allowed.
(3) Sec 1905 of US Crim Code makes it a crime for anyone in an agency to disclose a trade secret. However, Chrysler
has no private right of action.
*Note: When clients complain that Govt. req’d records contain trade secrets they have to give it up. Label the info with
the relevant exemption so there will be no confusion.
Judicial Review
Availability of
Review
Continuum of
Deference
DOD v. Fed Labor Relations Authority
Blackletter: confidential personnel info is exempted from FOIA. Cannot obtain names of employees to send them union
materials. No public benefit present to weigh against individuals privacy interest.
JUDICIAL REVIEW OF ADMIN ACTION
There are two threshold determinations regarding judicial review:
(1) Whether it is reviewable?
(2) Whether the individual challenging has standing to do so
Johnson v. Robinson (SCT 1974)
Sec 701 of APA Agency decisions are presumptively
Blackletter: Denial of VA benefits based on CO status
reviewable.
implicates 1st A and DP rights and is subject to judicial
General rule of reviewability subject to two exceptions:
review despite statutory preclusion.
(1) Precluded by statute
 Initial determinations of medicare claims
Webster v. Doe (SCT 1988)
processors, VA ed. benefits decisions etc
Blackletter: Termination of gay CIA agent implicates
 Floodgates of litigation
due process, freedom of assoc., and privacy rights and is
 Uniformity of decision making
subject to judicial review despite statutory preclsusion.
 Exception for Const’l Rights Johnson v.
Facts: Director of CIA has discretion to terminate
Robinson
anybody that he believes is a nat’l security risk.
(2) Committed to agency discretion
(1) Judicial review poses no nat’l security threat:
 No law to apply. No guidance from Cong.
Discovery strictly limited and supervised by the ct.
(2) Case remanded for dist.ct to review const’l claims.
(3) Broadens Const’l exception beyond Johnson to the
extent that discretionary actions and not just statutes
can be challenged.
Continuum of Agency Decision Making
Chevron Deference
Skidmore Deference
]----------------------------------------------------------------------------------------------------------------------------------------------------[
Findings of Fact
Construction or
Policy Letters, Policy Statements
Adjudications
Interpretation of Statute
Interpretative Bulletins
and Rulemakings (Hearst)
(Chevron)
(Mead)
Chevron Deference: highest level of judicial deference to agency. Chevron v. NRDC.
(1) Was Congressional intent clear? (Leg history appropriate in this analysis)
 If they have spoken clearly, then there is no question because agency and court must defer to will of congress
(2) If the statute is silent, is the agency’s action based upon a permissible/reasonable construction of the statute?
(arbitrariness review)
 Where Congress is silent a court should not substitute its interpretation for a reasonable agency interpretation.
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(3) Does the agency decision run afoul of the 6 grounds in APA 706?
 If Agency get this far then the court cannot substitute its own judgment for that of the agency and must defer to
agency expertise.
Grounds for
Overturning
Agency Action
Scope of Review
Skidmore Deference: agency’s interpretive rule will be given the deference it inherently compels based on it persuasiveness.
APA Sec 706 pg 1404
Reviewing ct shall hold unlawful and set aside agency action found to violate 6 grounds
1. Arbitrary and capricious, Abuse of discretion, not in accordance w/ law
a. Is there a rational connection btw rule and its purpose
2. Violates the const’l rights
3. Decision exceeds statutory authority of agency
4. agency fails to follow required procedures
5. unsupported by substantial evidence in a case subject to section 556 and 557 of this title or otherwise reviewed on
the record of an agency hearing provided by statute
6. unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing ct
Overton Park v. Volpe (SCT 1971): Availability of Judicial Review
Blackletter: Agency that fails to consider statutory req’s can go back and make the proper considerations on remand.
Facts: Enviro interest groups challenge decision of Sec’y of Trans. approving fed hwy through public park. Sec’y approved
plan as submitted, no facts on how or why. This is other agency action.
Holding & Analysis
(1) No statutory prohib on jud review and action is governed by DOT Act § 4(f).
(2) Case cannot be decided on DOT affidavits
(3) Remanded for DOT to determine whether (a) there were “feasible or prudent alternatives” (b) every step had been taken
to minimize harm to park, in accordance with DOT Act § 4(f).
*Note: APA does not govern other agency action and if there is no agency specific statute that governs the decision, as there
was here, the action is committed to agency discretion.
Chevron v. NRDC (SCT 1984) (Chevron Deference): Reagan EPA bubble policy case.
An implicit delegation of authority to interpret with the force of law exists when Cong. creates an agency, authorizes it to
promulgate rules, and leaves gaps in the regulatory scheme for the agency to fill.
US v. Mead Corp. (SCT 2001)
Blackletter: Customs tariff classifications are subject to Skidmore deference.
Facts: Customs service decided to tax calendars as diaries. Decision made via private letters w/ Mead that did not have the
force of law. No rulemaking or adjudication re letters. No procedures at all.
Holding & Analysis
(1) Unlike private letters rulemaking and adjudications are presumed inherently reliable b/c of req’d procedures 
more judicial deference. Private letters cannot get the same deference as findings of fact or statutory interpretation.
(2) Skidmore Deference applies: thoroughness of agency decision determines the weight of judicial deference. Even
when decision is not entitled to Chevron deference it is entitled to deference it inherently compels based on its
persuasiveness.
NLRB v. Hearst Publications (SCT 1944)
Blackletter: Agency findings of fact are entitled to the highest level of deference.
Facts: Nat Lab. Relations Board enforcing provisions of Nat. Lab. Relations Act that req employers to allow for unionization
of workers. Hearst Publications claimed paperboys were independent contractors. NLRB found otherwise.
Holding & Analysis
(1) NLRB found paperboys were employees based on following factors of control

Newspapers on consignment

Hearst assigned corners, set hours of work

Provided sales techniques

Provided racks and aprons
(2) NLRB wins. Ct cannot sub judgment for agency in regard to a finding of fact.
Industrial Union Dept. v. American Petroleum Institute (SCT 1980)
Blackletter: Good intentions won’t save the agency. Where statute calls for safe workplaces risk-free workplaces are
beyond the scope of OSHA authority.
Facts: OSHA attempted to reduce acceptable levels of benzene to the point that in reality it could no longer be used.
Holding & Analysis
OSHA rulemaking promulgated under the belief that any level of benzene is unsafe overturned on 3 grounds.
(1) Unsupported by substantial evidence
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Review of
Agency Inaction

Did not show what parts per million caused leukemia

No evidence in the record to show that there is no safe level of exposure to Benzene. Therefore nor causal link.
(2) Arbitrary and capricious

No rational connection because no proof of causal link
(3) Exceeded statutory authority

OSHA Act required it adopt only rules reasonably necessary or appropriate to provide safe work environment.

Due to absence of evidence to support risk these req’s are unmet

Ct falls OSHA for striving for risk free work environment.
5 U.S.C. § 706(1): to “compel agency action unlawfully withheld or unreasonably delayed”
Dunlop v. Bachowski (SCT 1975)
Facts: Secretary of Labor of DOL exercised discretion not to proceed in an enforcement action against members of
Steelworkers Union after investigating election pursuant to complaint.
Holding & Analysis
(1) No statutory preclusion but The Labor Mgmt Relations Disclosure Act (LMRDA) provides law to apply.
(2) Statement of facts/reasons provides rational basis for decision not to pursue enforcement action. Complaint was
insufficient and unverifiable.
Heckler v. Chaney
Facts: Challenge of FDA refusal to pursue enforcement action against drug makers and states for allowing lethal injections.
Theory is that there is no evidence to show it is not cruel, unusual, and painful.
Holding: There is a presumption against judicial review in cases where agency refuses to pursue enforcement action.
(1) No law to apply to provide judicial guidance so this has been committed to agency discretion.
(2) Judicial review is most valuable as a check on agency coercion (exercise of power)
(3) Only agency can engage in discretion based on resources, judgment as to most pressing matters, whether they have a
gd case etc
MA v. EPA
Facts: Refusal of EPA to classify GHG as an air pollutant under the Clean Air Act.
Holding: EPA directed to make finding as to whether GHG is air pollutant under CAA.
Analysis: There is law to apply and therefore failure to pursue rulemaking is subject to judicial review.
(1) CAA req’s EPA to investigate every air pollutant.

EPA found that GHG are air pollutant resulting sources which is what is req. for regulation under Sec. 110 of CAA

EPA statutory mandate is protect public health by regulating any air pollutant

Finding itself does not do anything just a preliminary step to regulation
Timing: Final
Agency Action
Ripeness
Norton v. Southern Utah Wilderness Alliance
Blackletter: Sec. 706 (1) of the APA does not authorize fed courts to review broad statutory mandates or general complaints
based on statutory req’s.
Holding & Analysis
(1) SUWA’s view that the off-road vehicles were damaging and made the Wilderness Study Areas unsuitable for
preservation as wilderness - could not be heard under the APA.
(2) Land use plan is a general statement of priorities. APA only allows cts to review discrete occurrences of agency
failure to meet specific statutory req’s not vague deficiencies in compliance.
(3) Agency must resolve issues re wisdom of competing policy choices.
Final Order Doctrine: Only final agency actions are subject to
Dalton v. Specter
Blackletter: Only final agency action is reviewable. The
judicial review.
President is not an agency.
(1) Final agency action, is defined as action that directly
impacts people
Analysis
Actions of Sec’y of Defense and the Defense Base
(2) Have to have an agency making the decision (which the
Closure and Realignment Commission are subject to final president is not)
action by the presidents. The president is not an agency
and is not subject to judicial review.
Ripeness calculus: Is there concrete adverseness? Is there
Abbott Laboratories v. Gardner
Blackletter: FDA rule req’ing drug makers to incur cost
immediate, direct, personal harm to challenger? (if this is
in reprinting drug labels is constitutes immediate and
not, there is no standing and thus case is not ripe for judicial
direct harm.
review) Plaintiffs must suffer a concrete, discernible injury—
not a “conjectural or hypothetical one.” Lujan v. Def. of Wildlife
Toilet Goods Assoc’n v. Gardner
Blackletter: Fear that agency MAY take action is not
enough. FDA rule allowing punishment of drug makers
who refuse inspection is not ripe until inspection is
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Standing
Prereqs
Standing Cases
refused.
(1) Timing: Final Order Doctrine
(2) Ripeness: Direct, concrete, personal adverse harm.
(3) Injury-in-Fact: Typically economic injury but can also be aesthetic injury.
1. Traceable causal nexus
(4) Zone of Interest: Whether injury that individual suffered was intended to be protected by the agency or statute
relevant to the issue?
o Person seeking judicial review must be within the zone of interest protected by statute or relevant const’l
provision, and said statute must be the one under the agency is acting
o Statute doesn’t have to specifically enumerate the interest or entity; rather, the court can easily discern who
falls within or outside of the statute
o General rule: taxpayers do not have standing to challenge agency decisions re how agencies spend tax dollars.
(5) Redressability
(6) Mootness
Assoc. of Data Processing Service Orgs. v. Camp
Facts: Data processors oppose decision of Treasury Dept. that banks could provide data processing services to customers
Holding: Standing req’s met
Analysis
(1) Injury in fact: lost profits have already occurred.
(2) Zone of interests: Bank Corp. Act limits banks to providing banking services.
Nat’l Credit Union Administration v. First Nat’l Bank &Trust Co.
Blackletter: Congress need not intend to protect the interests that in actuality fall within the reach of the statute. Express
language of statute not congressional intent governs zone of interest.
Facts: National Credit Union Administration (NCUA) Decision allowing disparate, unconnected employers in different
regions to band together in credit unions challenged by banks.
Holding & Analysis
(1) Injury in fact: lost profits
(2) Zone of interests: banks are meant to be protected from competition by Credit Union Act
(3) No Chevron deference b/c express language of statute governs. Congress has spoken
 Plain terms of Credit Union Act statute reqs a common bond to from credit union.
Sierra Club v. Morton
Blackletter: Associational standing: An association or group of ppl adversely affected by agency action can have standing.
Aesthetic injury is sufficient to establish injury in fact.
Holding & Analysis
(1) Sierra Club did not have standing to challenge decisions permitting construction of hwy and erection of power lines
over Sequoia Nat’l Park.
(2) Failed to establish that any Sierra Club members would be adversely affected. Not enough to be a concerned special
interest group.
Douglas Dissent
Trees should have standing.
FEC v. Akins (Causal Link)
Blackletter: Statute can ease standing req’s
Facts: Decision of FEC that American Israeli Public Affairs Committee (AIPAC) is not a political committee is challenged
by voters. Non-designation means they do not have to register with FEC, do not have to disclose names of donors, do not
have to disclose donations/candidates they support. FEC decided AIPAC’s major purpose was not election of candidates but
issue advocacy.
Holding: Standing reqs met
Analysis
(1) Injury-in-fact: Present here b/c FEC statute provides that any person who believes that a violation of the statute has
occurred has standing. Point of the statute was to provide disclosure to the American ppl. This is different from direct,
personal, immediate harm but it is the exact harm contemplated by statute.
(2) Traceable causal nexus: Because agency stated that AIPAC didn’t need to disclose, it was the agency decision that
directly impacted the ability of the plaintiffs to get the information
Lujan v. Defenders of Wildlife (Redressability)
Facts: Endangered Species Act empowers the Dept of Interior to protect endangered species. Rule was that agency must
consult w/ Sec’y before funding can be used on project that will harm endangered species anywhere in the world. Agency
changed rule imposing geographic limitations.
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Holding & Analysis
(1) Injury-in-fact: FAIL. A few scientists wanted to go someday. No concrete plans, no plane tickets. “Ingenious
exercise in the conceivable” and “pure speculations and fantasy.”
(2) Redressability: Harm is not redressable b/c even if agencies are ordered to consult or even ordered the suspension
of fed funds the Egyptians would keep building the dam and the harm would not be alleviated.
Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000)
Facts: Citizen’s standing suit: citizen must give notice to: state, polluter 60 days in advance

Within that window, the state can prosecute the polluter, and if state diligently prosecutes the polluter, then any
citizen’s hands are ‘staid’

Laidlaw asked for the state to sue them so that they could avoid the suit by the FOE
Holding
Citizen suit is not foreclosed by virtue of the state prosecution despite legislative intent to prevent double jeopardy
Analysis
(1) Diligent prosecution: State prosecution was not undertaken in good faith and thus did not qualify under the
standard of diligent prosecution.
(2) Mootness: The polluter still retained its license to operate such a factory, and could reopen similar operations
elsewhere if not deterred by the fine sought. Therefore, not moot.
Case Names
Due Process
US v. FL East Coast RR. Co  Florida East Coast RR (Rulemaking on Record)
CTFC v. Schor  Counterclaims Galore Fa-SCHOR
Mathews v. Eldridge; Hamdi v. Rumsfeld  HAMDI used Tri-FectaMathews
Public Employment
Bd of Regents v. Roth  Public Roth Tenure Block
Perry v. Sinderman  ImpliSINDERMAN
Cleveland Bd. of Ed. v. Loudermill  Civil Service Counts a Mil for Loudermill
Bd v. Davies  Just Cause Davies Robs
Carol City Teacher Case  Just Cause Miss when Carol teach acquits
Charles City Music Case  Charles City Music Liberty
Managing ALJs
Nash v. Califano  Neutral Nash Hearing Dash
Statutory Hearing Rights
Heckler v. Campbell  BLS Job Heckler
Airline Pilots v. Quesada  Old Airline Pilots
Richardson v. Perales  Richardson Subpoena Needa
Bush-Quayle Primary Comm’y v. FEC  Bush-Quayle Precedential Departure
US v. Mendoza  Topple MENDOZAlatteral Estoppel
OPM v. Richmond  No Est-OPM-el
Rulemaking
National Petroleum Refiners Assoc. v. FTC  Substantive Finder Petroleum Refiner
Pacific States Box & Basket v. White  Pacific Ration-a-BOX
Auto Parts & Accessories Assoc. v. Boyd  Formal AUTO PART-y
Nat’l Tire Dealers & Re-treader Assoc. v. Brinegar  Tire Dealer Causal Fever
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Motor Vehicle Mnftrs Assocs. of US v. State Farm  Hard Looking State Farbitrary
American Mining Congress v. Mine Safety & Heath Admin  InterpretaMINING
US v. Nova Scotia  Nova Scotia Non-Disclosure
Vermont Yankee v. NRDC  Higher Standards cant beat Yankees
Sierra Club v. Costle  Late to Scrub Sierra Club
Assoc of Nat’l Advertisers v. FTC  Impartial Advertisers
SEC v. Chenery Corp.  Chenery Tool Adjudicative Rule
Morton v. Ruiz  Eligibility Reqs are SubstaMORTONtive
Acquisition and Disclosure
UPENN v. EEOC  SubPENNa
Marshall v. Barlow’s Inc.  InspectiBarlows
NLRB v. Sears Roebuck  Sears Roebuck Year Old Stuff
NLRB v. Robbins Tire  Law Enforcement Robbins Tire Cant Acquire
Chrysler Corp v. Brown  Chrysler FOIA doesn’t work in Reverse
DOD v. Fed Labor Relations Authority  Confidential Labor Relation Authority
Judicial Review
Johnson v. Robinson  Conscientious Robinson
Webster v. Doe  Webster Gay in CIA
Overton Park v. Volpe  Overton Park hit Restart
US v. Mead  Skidmore MEADer
NLRB v. Hearst Publications  Newspaper facts Hurt in Hearst
Industrial Union Dept. v. API  Benzene Pie in API
Dunlop v. Bachowski  Dunlop Inaction Flop
Heckler v. Chaney  Chaney Inaction Baby
MA v. EPA  MAEPA GHG
Norton v. Southern Utah Wilderness Alliance  Utah Too Broad
Standing
Dalton v. Specter  Final Presidential Specter
Abbot Labs v. Gardner  Abbot Labs Hurt Ripe and Adverse
Toilet Goods Assoc. v. Gardner  Speculatoilet
Assoc of Data Processing Services Orgs. v. Camp  Data Process Standing Obvious
Nat’l Credit Union Admin v. First Nat’l Bank & Trust Co.  First Bank Zone
Sierra Club v. Morton  Sierra Group Standing Club
FEC v. Atkins  Stat. in Atkins Eases Standin
Lujan v. Defenders of Wildlife  Redressible Wildlife
Friends of the Earth v. Lailaw Environmelal Services  Diligent Citizen Work in
Friends of Earth
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