Admin Law Outline
Topic 1: Introduction to Administrative Law
I.
II.
Definition: Administrative law is the body of general rules and principles governing administrative
agencies (How they do their own work, and how work results can be viewed or reviewed by the President,
Congress and Courts)
a. Functions: Administrative law is NOT the substantive law adjudicated by agencies, or the
procedure followed by agencies
i. (1) Rulemaking- Regulations promulgated by agencies (CFR)
1. Under agency rulemaking power, agencies can pass criminal statutes violation of
which can be a felony
ii. (2) Adjudication- Social security/immigration decisions
1. Decide specific factual situations
2. More cases adjudicated in agencies than cases filed in federal courts
b. Source: Constitution, federal statutes, E.O.’s, court decision, and agency’s own rules and guidelines
i. Agency organization dictated by statute (NOT constitution)
ii. Focus: Process-oriented (as opposed to tax law practiced by IRS)
iii. Administrative Agencies: Any governmental authority other than a court or a legislative
body- “All authorities and operating units of the government except for the constitutionally
established entities” (Congress, President and Courts)
iv. Created by statute (definitions under APA on page 1437 and 1404)
c. Goals: Admin law attempts to increase social/political freedom by making government
interworking’s more transparent and encouraging individual gov’t participation
i. Many agencies have a division of functions to keep ALJ’s isolated
1. But not always – OSHA is the inspector, judge and jury
2. Newer agencies have more energy, before negative precedent
d. Output: Agencies make regulations (CFR), decide disputes, license activities or individuals, enforce
regulations (inspect, penalties)
i. Not all elements are listed in organic statute- might be listed in later statutes
Types of Agencies: Two patterns for agency organization
a. Administrative Agencies: Headed by single administrator who serves at President’s pleasure, often
within larger entities headed by members of President’s Cabinet
i. Non-Independent (within the executive branch)- led by one person
1. Pres. has near unlimited power to dismiss for whatever reason
ii. Ex: OHSA or Dept. of Labor (usually Administrators)
iii. Sometimes independent agencies are housed within administrative agencies (FERC within
DOE- 5 members have term appointments and removal protection making it “independent”)
b. Independent Regulatory Commissions: Free standing bodies whose members can be removed
from office by President only for “cause”
i. Until 1910 all agencies were within the executive branch (State, DOD, DOJ, etc.), then
Congress created more agencies with a certain amount of independence from the executive
branch
ii. Sometimes headed by people (usually Commissioners) who have term tenure or for-cause
removal protection- are not subject to immediate dismissal by President (with exceptions).
1. Sometimes independent agencies have a single individual who has term tenure and for
cause removal protection (SSA)
c. Regulatory Agencies: Issuing rules, inspecting or punishing violation w/ governmental authority
d. Non-Regulatory: Agency reaches outside its own area to achieve results by traditional government
means
i. Not using governmental powers (GSA- has an impact on things outside their spheres)
ii. Ex: National Zoo is not a regulatory agency because they just regulate behavior within their
sphere
e. Examples: Some agencies deal with small area- FCC deals with broadcasters exclusively, some
with wide area- OSHA- anyone who employs someone
1. Non-Independent and Non-Regulatory: State department, FBI
2. Non-Independent and Regulatory: FDA, OSHA: Within HHS which is under the
department controlled by an executive
3. Independent and Non-Regulatory: CIA, NASA, influence outside conduct
4. Independent and Regulatory: FTC, NRLB, NRC – insulated from Presidential control,
multi-member heads, fixed terms, for-cause removal
f. Presidential Preferences
i. Carter- wanted to inventory all agencies
ii. Reagan- wanted cutback on agencies (deregulation)
1. Many political initiatives require new agencies
iii. Clinton- wanted to reform Medicaid, required new bureaucracy
iv. Bush- 9/11 made him increase expansion in agency (size & number)
v. Obama- Greatly expanded administrative agencies
1. TARP, stimulus funds, auto industry, Dodd-Frank, CFPB
g. Issues: Alternatives to establishment of administrative agencies
i. Issue with unelected bureaucrats getting policy and discretionary power
ii. Step 1: Is there a problem?  Do we need to get the government involved?
1. Organ donation- voluntary
2. Common law regimes: Courts
3. Statutory law regimes: Legislature, enforceable by Court
iii. Step 2: Do we even need an agency to remedy the problem?
1. Need uniformity, special experience or expertise, etc.
iv. Step 3: How should it be addressed?
1. Courts- Usually can address, unless there is no law to apply to the topic
2. Legislature- Congress can pass a statute setting out the substantive law, but
sometimes don’t want congress making specialized decisions
3. Agencies- Give an existing agency new authority, or new agency?
III.
Procedure
a. Congress has broad authority to create and structure agencies subject to certain constitutional
limitations
i. Might think Agencies violate Separation of Powers (co-mingling of legislative, executive and
judicial functions AND indep. agency’s insulation from presidential oversight)
ii. But constitution authorizes Congress to make laws “necessary and proper” for ensuring
powers are exercised effectively – (Art I, §8, cl. 18)
b. Agencies can only exercise powers they have been delegated, but Congress entrusts agencies with
many policy-setting powers, and high “discretion”
i. Jurisdiction can be vague like “in the public interest” or “to protect public health”
Topic 2: Delegation of Regulatory Lawmaking Power (Rulemaking/Legislative Power)
I. Delegating to the President v. Cabinet
a. The Non-Delegation Doctrine: Legislative power delegated to Congress cannot be re-delegated to
the Executive or to the Courts
i. Congress can’t delegate legislative powers to agency – Constitution gives congress
responsibility to exercise “all legislative power” – (Art I §1)
1. When Congress delegates quasi-legislative power – might be abdicating
responsibility to exercise powers its responsible for under Article I
ii. Congress can’t delegate adjudicatory powers to an agency so that it undermines the federal
courts’ authority to exercise “the judicial power of the US” – (Art III, §1)
1. When Congress delegates quasi-judicial power, worry it’s undermining powers
conferred on federal courts by Article III
iii. Contingency Doctrine: Executive isn’t legislating, just “filling in the details” and
implementing a certain group of principles based on the occurrence of a condition that
Congress wasn’t sure would happen
1. Article I: “All legislative power granted shall be vested in a Congress”
2. Courts must uphold statute unless unconstitutional (Marbury v. Mad.)
iv. Ensure an orderly government administration- Congress responsive to popular will
b. Formalist: Cannot delegate adjudicative or legislative power to an agency because delegated power
is “executive” not “legislative” - no difference in that power given to president or within the
executive branch
c. Functionalist: Rejects theory that delegated power is really the president’s - whoever got the
delegation has the power- decision-making now becomes subject to the APA or a sunshine statute
II.
Delegation of Legislative Authority
a. To what extent can you delegate to an agency legislative and adjudicative power?
i. Aggrandizement- When congress tries to have more control over agencies than what is
constitutionally allowable
ii. Encroachment- Congress tries to allocate duties and responsibilities in a way that appears to
violate a constitutional principle
b. Intelligible Principle Standard: So long as Congress lays down in legislation an intelligible principle
to which person authorized to exercise the delegated authority is can conform, such action is NOT a
forbidden delegation of legislative power (Misretta)
1. Found in the purpose section of organic statute OR can infer from other statutes OR
legislative history OR problem itself OR common sense
2. Usually Court Congress to give broad rulemaking power to agencies – can give
executive agencies power to take actions with legislative effects based on agency’s
policy judgments as long as Congress give them an overarching policy within which
to act (like “public interest”)
ii. Analysis: Look at procedural protections as much as substantive standards
1. Agencies may try and reduce necessary power delegated to them- cure vagueness by
adopting more procedural protection
2. Ex: FTC/FCC’s mandate is broad and vague, but so many procedural requirements,
it’s ok (want transparency, comments, etc.)
c. Goals: Reason for upholding broad delegations is pragmatic- more functional. Practical
understanding that “increasingly complex society . . . Congress simply cannot do its job absent an
ability to delegate power under broad general directives” (Misretta)
d. The Brig Aurora (1813): Statute authorizing Pres. revive statute giving favorable trading status to
France if Pres. felt countries were violating US neutral commerce
1. Usually delegate power to the head of a Cabinet or a free-standing agency who then
delegate to internal units (President has to ascertain a fact)
ii. Issue: Did the statute give the President too much legislative power by allowing him to decide
when the statute imposing the embargo would be suspended?
iii. Holding: No. The Court UPHELD presidential authorization to give favorable trading status
to countries if they were violating neutral commerce under the Contingency Doctrine:
President wasn’t legislating, just allowing previously enacted legislation to become effected
1. An area where the President has primary authority (dealing with foreign nations)
iv. Rule: If an intelligible principle principal is present then the delegated power is “executive”
not “legislative”
III.
e. Field v. Clark (1892): Tariff Act – normally requires duty free imports, but Pres. could suspend if
he felt that the other country was unfairly taxing US exports
1. The statutory delegation was to the President personally
ii. Rule: Congress can enact legislation the effect of which depends on the President’s
determination that a “named contingency” exists
iii. Holding: UPHELD the Act’s allowance of presidential suspension of duty free imports if
other country was unfairly taxing US import- It didn’t give president legislative powers,
because it only gave him discretionary powers to execute the law in a certain way based on the
occurrence of a specific condition
f. Waman: UPHELD Congress’ delegation of federal rules of process to SCOTUS – they are just
filling in the details (not a legislative function)
g. US v. Grimaud (1911): Conviction of people who grazed on public land, Congress had given
President power to make regulations to set aside land for public forest reserves
1. Statute didn’t let Secretary make rules “for any purpose,” but had to be rules to
insure that these reservations are preserved
ii. Holding: UPHELD Act- Difficult to separate legislative power to make laws from
administrative authority to make regulations BUT congress can give agencies power to “fill in
the details” without giving them actual legislative power
1. Expanded the Contingency Doctrine (Field, Brig) because here, the executive made
the rules, not just implementing rules made by Congress
h. J. W. Hampton v US: (1928): Tariff Act of 1922 allowed President to change statutory schedule of
tariffs on goods at President’s discretion if there was unequal exchange
i. (Taft): Congress cannot give up its legislative powers and give them to the President or
Judiciary, BUT the extent of the assistance one branch can give to another are fixed
“according to common sense and inherent necessities of the governmental coordination”
ii. Rule: As long as Congress gives out an “intelligible principle” by which a person authorized
to fix rates is directed to conform, its not a forbidden delegation of legislative power (president
only executes the law, he doesn’t make it)
iii. UPHELD- There was a sufficient intelligible principle for the agency to follow
Limitations on Delegation of Legislative Power:
a. Expansion of government during the passing of these two statutes before 2 cases
i. Government plagued by lack of transparency - where code was, when modified, etc.
ii. Court had tremendous hostility to dramatic expansive of federal regulatory authority wanted
opportunity to halt expansion (not have CFR, public comment, etc.)
b. Panama Refining v. Ryan (1935) (hot oil case): Statute allowed the President to regulate oil in
excess of state quotas by executive order – change pricing/stop allow oil transport
i. Holding: Court found that this was an INVALID, impermissible delegation to the executive
because there was NO intelligible principle for the President to follow, so President was
virtually legislating, so that isn’t allowed
1. Congress can’t assign this power to the President, because Legislature should
regulate IC commerce, and the 19 substantive standards were insufficient as an
“intelligible principle” – too much agency discretion
ii. Cardozo (dissent): Thought there was constitutional delegation- would have upheld
1. It shouldn’t matter the number of standards, because if there was a standard, and
president complied with one, that’s allowed
2. Banzhaf says that Cardozo is correct here- do have standards by which to guide
agency discretion to come into play
c. Schecter Poultry v. US (1935) (sick chicken case): Congress allowed Pres. to approve trade codes
for fair competition (submitted by industry) if certain elements met
i. Holding: Was an INVALID delegation- violated delegation doctrine – even though there were
standards, the standards weren’t well defined
ii. Hughes: There were no explicit guidelines, on how to define “fair competition,” – can’t
delegate to private groups an essential legislative function and there were no adequate
IV.
administrative procedures for the approval of the trading codes
1. Setting standards for industries was much more liberal than yes/no to oil transportleaves too much discretion to President to set standards
iii. (Cardozo): Unlike Panama Refining, where all Pres. is authorized to do is to prohibit
transportation, yes or no black/white- here he agreed with majority, said it violated delegation
doctrine because there was no limit to the president’s power here. Power was not “canalized”
but “unconfined and vagrant”
iv. Notes: If you have sufficient procedural protections, that may overcome vague and general
kind of delegation.
1. Ex: publish reasons for decision, have public comment period, etc.) (especially if
their substantive standard is “within the public interest” then significant procedural
protections)
d. Yakus v. US (1944): Congress authorized Administrator to promulgate regulations fixing “fair and
equitable prices” during war (court may have given agency additional “war power”)
i. Rule: Should only say its an impermissible delegation if its impossible to decide whether the
will of Congress has been followed or not
ii. Holding: UPHELD- There are enough details set out that we can determine what Congress
wanted – not too much discretion given to the agency here
iii. Might be moving from a formalist emphasis on separation of powers to a functionalist concern
with effective checks on delegated powers
iv. Purpose of Delegation Doctrine:
1. (1) Provide guidance to the agencies
2. (2) Provide for a substantive standard when agency’s actions are under review by
the courts (“intelligible principle”)
Functionalist Emphasis on Encroachment
a. Mistretta v. US: (1989): US sentencing commission- created federal crime penalties
i. Holding: UPHELD Congressional delegation to an agency set up in judicial branch because
there was a sufficient intelligible principle that the authority could use
ii. Blackmun: Functionalist: Separation of powers is flexible, no S of P violation here
1. Founders didn’t require that the branches be entirely separate and distinct, wanted to
focus on effective government (Jackson in Youngstown- “separateness but
interdependence, autonomy but reciprocity”)
iii. Different characteristics that should inform commission’s judgment for penalties- so better left
to a specialized body than the legislature
1. Ok to have some degree of comingling of functions, as long as there is no danger of
aggrandizement or encroachment of powers
b. Trucking I: American Trucking v. EPA (1999): DC Circuit Court of Appeals
i. CAA required EPA to set “primary standard” to protect public health with adequate margin of
safety, and a “secondary standard” to protect public welfare
ii. Holding: The court STRUCK DOWN for lack of an “intelligible principle” to use- “protect
public health” is too vague (what is the “requisite level of safety”?)
1. Like Benzene case: Could interpret statute to narrow what’s otherwise a more broad
authority
iii. The court wanted to give agency the opportunity to use an interpretation that doesn’t violate
the delegation doctrine SO court allowed the agency to adopt a more precise standard that
wouldn’t violate delegation doctrine
1. EPA needs to make a threshold finding setting how their standards were developedotherwise too much influence over American life without justification without any
constraints
2. Davis Principle- agency should adopt a more narrow construction
3. By supplementing substantive standard in the statute it cures problem.
c. Trucking II: American Trucking v. EPA (1999) DC Ct. Ap. Petition for Rehearing
i. EPA said that there was a limiting intelligible principle under the CAA
ii. The court followed Chevron instead of Industrial Union and deferred to the agency’s
reasonable interpretation of a statute of an ambiguous principle by which to guide its exercise
of delegated authority
1. BUT the “intelligible principle” itself was ambiguous, and not clear that the agency
applied the principle
d. Trucking III: Rehearing of American Trucking v. EPA (date?) Denying EPA’s Petition for
Rehearing En Banc
i. The court UPHOLDS finding that “requisite to protect public health” was enough of an
“intelligible principle”
ii. Constitutional avoidance canon used- APA should be used to limit EPA’s discretion under the
arbitrary and capricious standard
1. Davis’ Principle- agency can cure a weakness by coming up with an interpretation
of its own- but this was REJECTED
iii. The court said that it never suggested that an agency can cure an unconstitutional delegation of
power by making a limiting interpretation of the statute
e. Trucking IV: Whitman v. Trucking Association (2001): EPA has authority to set AAQS
i. Whether EPA has to look at costs of achieving an adequate standard of safety
ii. Scalia- Interpreted in its statutory and historical contact, §109 bars cost considerations for the
NAAQS setting processiii. Holding: Court UPHELD statute as delegation with sufficient “intelligible principle”
1. Provision requiring protection of public health granted EPA allowable discretion“well within the outer limits of the non-delegation precedent”
2. EPA made judgments, but that’s not conclusive for delegation purposes- EPA
wasn’t exercising legislative power, just implementing a statute
Notes: Don’t need intelligible principles to allow EPA to define “country elevators,” but would
need intelligible principle to allowed EPA to interpret “public health”
**Court hasn’t used delegation doctrine to invalidate a federal statute since 1936 (?), but has used
it to interpret a statute narrowly**
f.
Industrial Union v. API (Benzene case) (1980): OSHA directed agency to set safety standards
providing safe/ healthful place of employment using latest scientific knowledge
i. Holding: Plurality opinion STRUCK DOWN as potentially violating the delegation doctrine–
Court didn’t allow OSHA to interpret the statute so broadly
ii. Powell: Section 3(a) doesn’t preclude CBA, need to look at whether industry can bear costs of
reducing the safety standard – invalid how OSHA interpreted
1. Issue here is how to balance scientific harm against cost of compliance
iii. Stevens: Problem was delegation –Act requires Secretary to make threshold finding that the
working conditions are unsafe before implementing regulations
1. Like Schecter Poultry - no explicit guidelines, on defining “fair competition,” or
“safe” here- Congress probably didn’t intend to give Sec. power to determine what’s
“safe”
iv. Rehnquist: Said it violates the delegation doctrine –only justice to find that statute would be
invalid regardless of how interpreted
1. Benefits of Non-Delegation Doctrine (Locke)
2. (1) Provides recipient of any delegated authority an “intelligible principle” to guide
the exercise of the delegated discretion- guide agencies
3. (2) Courts reviewing the exercise of delegated legislative discretion must be able to
test them exercise against ascertainable standards- guide courts
4. (3) Ensures that important policy choices are made by Congress to be consistent
with orderly governmental administration- decisions aren’t made by politically
unresponsive agency- congress can’t “punt”
v. Notes: Maybe ultra vires- what is the scope of the power and how it was exercised?
1. Congress probably didn’t want to give Secretary power to create standards that
would have huge costs for the industry with little benefit to workers
a. Congress probably didn’t understand the implications of the determination
of whether something is a carcinogen
2. If the only limitation was feasibility, no CBA is required, then there is no safe lower
limit (down to zero), that’s a delegation issue
a. To save statute- plurality narrowed the statute by construction
b. New interpretation: the Sec has to make the determination that there is a
risk/something is unsafe, and since no decision was made, decision was
ultra vires
g. Chevron v. NRDC (1984): EPA’s CAA passed, different interpretations of “source” under Carter
and Reagan – DC Circuit said can’t change interpretation,
i. Holding: UPHELD as an agency reasonably interpreting statute
ii. Stevens: When a court reviews an agency’s construction of a statute it must ask:
1. (1) Did Congress speak directly to the precise question at issue? If YES, then the
Court should defer to Congress’ stance
2. (2) If NO, then ask if the agency’s construction of the section in question a
permissible interpretation of the statute?
iii. Rule: When a statute is ambiguous on the precise issue, a court should defer to a reasonable
interpretation of the statue by the agency responsible for administering it
1. Congress can decline to make basic issues, especially when its so technical that they
can’t do it, or if it’s too politically contentious to decide, want agency to do it- but
regardless of the reason, it’s allowed
2. If Congress has explicitly left a gap for the agency to fill, there is express delegation
of authority to the agency to elucidate a specific provision of the statute by
regulation.
iv. Notes: Holding is in contrast to Rehnquist’s belief that policy decisions should be made by
legislature not the courts
1. Very deferential. Dramatic contrast to the view of Rehnquist in Industrial Union
2. Where to put this – legislative delegation issue- but ultra vires?
V.
The Doctrine of Ultra Vires
a. Courts will strike down an agency action as utra vires (outside authority/beyond the power) if the
agency goes outside or beyond its delegation of power.
b. Congress could set broad policies in statutes, agencies could fill in details
i. If agencies were doing it wrong, congress could clarify
c. Direction: Court theoretically is working with Congress to prevent agencies from exercising a
power congress didn’t intend for them to have
d. Cure: Congress would have to amend the statute to cure ultra vires problem.
i. Ex: Regulate weather “within the public interest” (vague)
1. Cure: If we want agency to be able to do something, amend statute to give it greater
authority
e. Differences from Non-Delegation: Under delegation- court isn’t letting agency do what it wants
(cure with a substantive standard for an intelligible principle)
i. Working against Congress- Congress wants them to do something, but courts are limiting
agency’s authority
f. Similar to Non-Delegation Doctrine:
i. Working against Congress- Congress wants them to do something, but courts are limiting
agency’s authority
g. Example: Federal Hemline Commission
i. Statute to regulate “hemlines:” Can they regulate dresses or skirts, or is it ultra vires if
regulated pants
1. No idea as to purpose for statute- so don’t know if it should include pants
2. Meant for modesty or to keep women warm?
ii. Cure Ultra Vires: Could change to say “hemline including length of pants and suits”
iii. Cure Delegation Doctrine: Set an intelligible principle “regulate length of skirts to preserve
modesty” (reason for regulation)
VI.
State and Federal Delegation Doctrine:
a. Federal judges are more respectful of federal agencies, but there is less effective oversight from the
public and industry for state agencies
i. Judges are more wary of allowing federal agencies to act- more direct impact on daily life
(books in school, roads, zoning, etc.)
ii. Less publication, less public awareness about state agencies’ purpose
b. Boreali v. Axelrod (1987): Challenged NYC’s ban on smoking under the Public Health Law as too
vague, restricted smoking, but not in bars – no scientific expertise
i. Holding: NY Court of Appeals found it INVALID- no real reason why
1. Legislative function to balance competing health cost and privacy interests violated
the state-level non-delegation doctrine- exemptions for bars and at small restaurants
have no considerations of public health
ii. (1) Agency constructed a regulatory scheme with too many exceptions with social concerns
(carved out bars) (ULTRA VIRES?)
iii. (2) Agency didn’t just fill in the details, but created its own broad regulatory regime from a
blank slate (DELEGATION DOC?)
iv. (3) Agency exceeded scope of authority delegated to it- acted in an area where legislature
failed to come to an agreement- too controversial (ULTRA VIRES?)
1. Inferences from negative legislative action isn’t favored- can’t show what they
intended based on what they didn’t do
v. (4) No expertise was involved in the development of smoking regulation- just banned it
(DELEGATION DOC?)
1. Regulations might involve more common-sense than scientific – don’t always need
technical expertise
vi. Rule: Difficulty in getting legislation passed shouldn’t be a reason to defer it to the agenciespeople’s elected representatives should resolve difficult problems
Topic 3: Delegation of Regulatory Adjudication (Adjudicative Power)
I. Delegation of Adjudicative Power – 7th Amendment Issues
a. Article III of Constitution suggests problems with adjudicative authority in agencies
i. 6th Amendment: Criminal prosecutions get public trial by impartial jury
ii. 7th Amendment: Suits at common law, the right of trial by jury shall be preserved
iii. Statutes may be void for vagueness – this is the counterpart in adjudicative authority to the
intelligible principle doctrine with legislative authority
1. Cure a void for vagueness issue: Promulgate more specific regulations that clarify the
vague statute OR issue a “cease and desist” order, then that party then knows that he
has violated the vague statute and is on notice that if he continues violating action, he
will suffer the penalty
b. Old Standard: Divide all agency proceedings involving adjudication as either involving private
rights or public rights (Crowell)
i. Historically allowed delegation of adjudicatory power to non-Article III entities if it was a (1)
military court, (2) territorial court, or (3) tribunal for public rights (Northern Pipeline)
1. Public rights – Created by the statute - usually where the government is a party –
delegation of adjudication passes constitutional muster (claims people had against the
government, ok to be heard only by non-Article III courts because under doctrine of
sovereign immunity, didn’t have to allow them to be heard at all
2. Private rights – Individualized rights like contract law, but adjudication of private
rights usually created constitutional problems
c. New Standard: Look at whether delegation impairs either an individuals’ interest in having a claim
adjudicated by an impartial Article III judge or the structural interest in having an independent
judicial branch decide matters that have traditionally fallen within the core of Article III business.
(Schor factors) while also keeping in mind due process considerations requiring an Article III court
to play a role
d. Crowell v. Benson: (1932): Longshoreman Workers Act gave federal tort-substitute for injuries
i. Statute allowed the delegation of adjudicative power – courts had substantial reviewing power,
and the Act didn’t expressly preclude review by Article III courts
ii. Holding: Court UPHOLDS the delegation of adjudicative power over public rights to nonArticle III courts. Allowed judicial review of agency decisions for questions of law, but
limited authority to review questions of fact.
1. Reasons: (1) efficacy of the plan depends upon finality of determinations of fact, (2)
Plan provides for due process (notice, being heard, etc.), (3) And Article III courts
still get the final determination of non-jurisdictional facts.
iii. Rule: The doctrine of public rights vs. public rights used in Murray’s Lessee is no longer valid
because there is no requirement that determination of fact in constitutional courts shall be
made by judges (i.e. juries).
1. Looks to historic practice of courts of equity and admiralty – courts of equity allowed
non-article III courts to take part in some of proceeding (like fact-finding)
e. NRLB v. Jones & Laughlin: (1937)
i. 7th amendment jury trial right would rarely attach to typical regulatory programs
ii. Holding: 7th Amendment only applied to proceedings in the nature of a suit at common lawand National Labor Relations Act was unknown to common law
f. Curtis v. Loether: (1974): Fair housing provision of Civil Rights Act – right to jury trial?
i. Holding: Court found that 7th Amendment does apply to actions enforcing statutory rights if it
creates legal rights and remedies.
1. Congress can determine the primary statutory legal rights and remedies, and who can
enforce
ii. Rule: 7A generally inapplicable in administrative proceedings where jury trials would be
incompatible with whole concept of administrative adjudications and substantially interfere
with agency’s role in statutory scheme
g. Atlas Roofing v. OSHA: OSHA could give penalty upon finding of safety violation
i. White: When “public rights” are being determined, congress can decide that a jury forum
would be incompatible, can delegate adjudicative authority to agency
1. Ex: Government suing in its sovereign capacity to enforce a public right created by a
statute within the power of congress to enact
2. Private rights are sill reviewable by the courts and can have a jury- K, tort, etc.
ii. Holding: Violations requiring a civil penalty can be reviewable by the court system (like
public rights are reviewable by Article III Court), but findings of fact made by the ALJ are
conclusive if supported by evidence
iii. Rule: The 7th Amendment does not prohibit Congress from assigning fact-finding function to
administrative forum where jury would be incompatible – 7A is no bar to the creation of new
rights or their enforcement outside of regular court of law
1. Right to a jury trial turns not solely on nature of issue but the forum in which it is to
be resolved.
iv. Notes: Court still refers to distinction between private and public rights but the distinction
doesn’t work well – important to look at formalist/functionalist approach
1. When do they apply one approach over the other? No idea.
2. Formalism – Look at 4 corners of constitution/statute and don’t look beyond it to
decide constitutionality with no weighing or balancing. When court applies formalist
approach, it almost always strikes down.
3. Functionalist – Court looks beyond the words and look to balancing/reasonableness.
Much broader and more forgiving review.
h. Northern Pipeline v. Marathon: NP filed in Bankruptcy Court and sued Marathon on state-law K
claim – Act allowed bankruptcy court to decide state K claim with limited Article III court review
i. Holding: The Court INVALIDATED the bankruptcy courts’ acceptance of an unconstitutional
assignment of adjudicatory power to decide state K claim outside of Article III courts.
1. It is a necessary but not sufficient condition that the gov’t must be a party for public
rights – even though bankruptcy reorganization is a public right, state contract claims
are private rights, so legislative agency can’t hear it
a. Not an Article III judge, not a public right = strike it down
2. This is an extreme delegation of adjudicative powers to non-Article III judges – but
plurality opinion, so close to succeeding! (Plurality, so read narrowly)
ii. Rule: Congress can constitutionally assign cases of involving public rights to “legislative”
courts for resolution, but not state-law private right, contractual causes of action
1. Bankruptcy courts have too much power. District courts can appoint a special master
to conduct proceedings and make findings, but they are an adjunct. The bankruptcy
judges aren’t mere adjuncts for federal district courts
2. Bankruptcy judges lacked the protections afforded to Article III judges (life tenure,
secure pay), judicial power must be found in an independent judiciary – why aren’t
agency officials considered “independent judiciaries” – in other cases talk about how
they are assumed to have special unbiased judgments?
a. See C&W Fish v. Fox and Winthrow v. Larkin
iii. Approach: Plurality = Formalist: No balancing or weighing importance for delegating.
1. Rehnquist (concurrence): None of the cases has gone so far as to sanction the type of
adjudication in which Marathon will be subjected against.
2. White (dissent): Functionalist approach. Constitutional values should be balanced
against legislative responsibilities - the presence of judicial review and absence of
high political interest insure that Bankruptcy Court wouldn’t weaken the judiciary.
i.
Thomas v. Union Carbide: FIFRA permitted EPA to use one manufacturer’s data about effects of
its product in considering another manufacturer’s later application.
1. Act provided for binding arbitration if parties couldn’t agree on the amount and
limited, but didn’t preclude Article III review of arbitration proceeding
ii. Holding: Thomas: Court UPHELD Act: Licensing provision creates the relationship between
the data submitter and later registrant, and federal law supplies rule of decision.
1. Repudiates the Northern Pipeline public/private distinction definition
iii. Rule: Congress can create a seemingly “private” right that is so closely integrated into a public
regulatory scheme as to be a matter appropriate for agency resolution with limited
involvement by the Article III judiciary
iv. Approach: Functionalist: Focus on purpose served by statutory delegation of adjudicatory
power and impact of delegation in “independent role of judiciary in constitutional scheme,”
rather than doctrinaire reliance on formal categories.
1. Purpose of the legislation must be weighed against the intrusion of the right and
when that balancing is done, there is little encroachment on Article III powers
v. Factors Considered: (1) Manufacturers’ rights in their data were more fitting of public right
with a public purpose (safeguard public health, instead of a purely private right- created by
statute not common law), (2) Arbiter is selected by agreement of parties or appointed on a
case-by-case basis by an independent federal agency (free from political influence), (3) Act
does not preclude judicial review even though review was limited
j.
CFTC v. Schor: Trading through broker at CFTC-regulated firm, Shor filed administrative
complaint under Commodity Exchange Act, Broker counterclaimed alleging violation of CEA
i. Issue: Can Congress allow the Commission to adjudicate compulsory counterclaims?
1. Counterclaims were like those that non-article III bankruptcy judges were unable to
adjudicate under Northern Pipeline
ii. Holding: O’Connor: Yes. Court UPHELD Act– Commission can hear broker’s counterclaims
without violating Article III
iii. Rule: Constitutionality of a congressional delegation of adjudicative functions to a non-Article
III body must be assessed by reference to purposes underlying Article III requirements–
Courts should not rely solely on the language of the Constitution.
1. Functionalist: Want to (1) Structural: Protect the role of an independent judiciary
and (2) Personal: Safeguard litigants’ right to have claims decided before judges who
are free from potential influence by other branches
a. Litigant waived his right to an independent judiciary by counterclaiming in
the administrative hearing
b. More efficient to have the permissible counterclaims adjudicated with the
main claim, the actual claim heard is a very small part of judicial business
and the decisions were subject to judicial review
2. Balance: (1) Whether the essential attributes of judicial power are reserved to Article
III courts, (2) The extent to which the Non-Article III forum exercises range of
jurisdiction/powers normally vested in Article III courts, (4) Origins and importance
of right to be adjudicated, (5) Concerns that drove congress to depart from
requirements of Article III.
iv. Notes: Difference between Crowell: CFTC only deals with a “particularized area of the law, in
contrast, the bankruptcy courts extended to broadly “all civil proceedings arising under cases
related to cases under title 11 (more efficient to hear counterclaim here than new case)
1. CFTC orders are only enforceable by order of the district court
2. CFTC orders are reviewed under the same “weight of the evidence” standard under
Crowell, not the “clearly erroneous” standard of Northern Pipeline
3. BUT is a private right, so look more closely- Congress has given only limited CFTC
jurisdiction over narrow class of common law claims and unchallenged adjudicative
function doesn’t create a S of P threat
k. Granfinancera: Plaintiff’s 7A rights were violated by refusing a right to a jury trial for a claim to
recover money fraudulently transferred by the bankrupt party
i. Holding: Brennan: INVALIDATED refusal of jury: D had right to jury because the claim was
legal not equitable – recovering money transfer was a private right.
1. Was a private right because it was neither a (1) public right nor a (2) private right so
closely intertwined with a public regulatory program (like Union Carbide FIFRA
case)
ii. Rule: Test: Did congress, acting for a valid legislative purpose create a seemingly private right
that is so closely integrated into a public regulatory scheme that it’s appropriate for agency
resolution with limited involvement by Article III courts? Not here! Congress can only deny
trials by jury in actions at law in cases where “public rights” are litigated
iii. Approach: Functionalist – federal government doesn’t have to be a party for a case to revolve
around “public rights” – diverged from Northern Pipeline holding that government as a party
is necessary but not sufficient for a public right
iv. Scalia (dissent): Public rights must be only between government and others
1. Advocated a formalist approach
l. Stern v. Marshall (2011): Anna Nicole Smith case – bankruptcy issue
i. Holding: Even though bankruptcy court had statutory authority to enter judgment on core
counterclaim, it lacked the constitutional authority to do so under Article III.
1. Bankruptcy court wasn’t subject to the constitutional assurances of independence
which would allow adjudication of debtor’s state law claim
ii. Rule: Bankruptcy court cannot enter final judgment on the counterclaim even though the
statute attempts to distinguish between the core functions and non-core functions where this
would purportedly be permissible
iii. Notes: Question: How far can we go in terms of turning things which are handled by courts
over to agencies?
iv. Experts say – this is a relatively narrow holding in an unusual case because state law
counterclaims are not frequent
1. But – fair reading of plurality and concurring opinion points to an extension of the
Stern holding that would prevent Bankruptcy Court from entering final judgments on
certain other claims
2. No clear limits have emerged because of these obscure Court opinions.
Topic 4: Congressional and Presidential Impact (Appointment & Removal)
I.
Congressional & Presidential Regulatory Outcomes: Appointment & Removal
a. Three Branches: Article I – Legislative, Article II – Executive, Article III – Judicial
b. Article III, §2, cl. 2: “The President . . . shall nominate, and by and with the advice and consent of
the senate, shall appoint officers of the US . . . but Congress may by law vest the appointment of
such inferior officers as they think proper in the President alone, in the courts of law or in the heads
of departments”
i. Appointments clause doesn’t give Congress power to appoint “officers of US”
c. Invalid Congressional control of administrative agencies:
i. (1) Appointing administrative officials (like Buckley), (2) Having members of Congress serve
on administrative bodies (like Metro Washington Airports), (3) controlling removal of
administrative officials (like Bowsher), (4) by exercising a legislative veto over administrative
action (like Chada), and (5) oversight power.
d. Framers didn’t want Congress to have the power to create agencies and then fill them too
II.
Congressional Control Over Agency Action
a. INS v. Chada (1983) Student from US, tried to get deported –Immigration & Naturalization Act
said either house could veto AG’s order that Chada stay
i. Deportation could be reinstated if a house of congress disagreed with INS ruling
ii. Background: Congress wanted to delegate powers to president, but reluctant to give that
power up, so gave executive power, but reserved the right to overrule executive decision
(discussion of APA amendment to make legislative reviews generic)
1. Presentment: Article 1, §7: Present legislation to Pres. before adoption
2. Bicameralism: Article 1, §1&7: No law could take effect without the concurrence of
the prescribed majority of the members of both houses
iii. Holding: Burger: Legislative veto provision of Act allowing a one-house veto over executive
orders was UNCONSTITUTIONAL – action wasn’t within any of the express constitutional
exceptions authorizing one House to act, and as an exercise of legislative power, it was subject
to Article I requirements
1. Appropriate body to deal with rights is the judiciary, not the legislature
2. House’s disapproval had the purpose and effect of altering the legal rights, duties and
relations of persons outside the legislative branch
iv. Approach: Formalist: Need stronger division between executive and legislative
1. Efficiency of government is not the goal- presumption of constitutionality
2. Need presentment and bicameralism if actions are “properly regarded as legislative in
character and effect”
v. Powell (concurring): This invalidates all legislative vetoes- frequently used historically – the
Court should have decided the case on narrower grounds
vi. White (dissenting): Bad to take away legislative veto- congress has to make laws all very
specific now, or leave all lawmaking to the executive and independent agencies
1. Legislative veto was a democratic tool used to keep government structure in check
without overburdening congress – functionalist approach
vii. Notes: Very broad opinion, usually courts shy away from a constitutional argument, or make a
narrow holding – but here the decision impacted many statutes
1. Maybe SCOTUS wanted to discourage Congress from expanding this legislative veto
into the APA
2. Many of these statutes still exist because people lack standing to challenge
b. Bowsher v. Synar: OMB/CBO were to independently estimate federal deficit, and tell Comptroller
General, who was to identify cuts needed deficit exceeded statutory limits
1. Congressional Budget Office (Article I), OMB (Article II) – wanted to insulate
Comptroller from special interest groups due to the importance of their decisions so
had budget cutting authority as executive, with the Comptroller removable by
congress
ii. Holding: Burger: INVALID- Congress encroached on the power of the executive by vesting
executive functions in the Comptroller, who is answerable to Congress
iii. Approach: Formalist - Congress wanted Comptroller as an officer of legislative branch, but
tasked with executing the laws (executive) so Congress is intruding on executive function (like
Chada)
iv. Rule: Congress can’t reserve for itself the power of removal of an officer charged with
execution of the laws except by impeachment
1. Congress can’t have control over the execution of the laws because that would
essentially give Congress control over execution of laws through veto power by
removing officer who didn’t execute the laws correctly
v. White (dissent): No actual threat to separation of powers (functionalist approach)
1. Congress can’t reserve an executive role for itself or its agencies, but removal of
Comptroller isn’t a Congressional execution of the laws- the statute articulated the
limited job of the agency
vi. Blackmun (dissent): If Congress attempts to remove him improperly, then it would be S of P
issue, but should be allowed to have Comptroller until then- functionalist
vii. Notes: Congress can only act through legislating – can’t do indirectly what they can’t do
directly (Chada applies to independent agencies)
c. Buckley v. Valeo: Federal Election Act tried to set campaign finance reform
i. Holding: Court found statue authorizing Congress to appoint officials to serve on Federal
Election Commission an INVALID violation of Article II
1. These congressional leaders weren’t within the “courts of Law or “heads of
Department” that the Constitution said Congress could appoint
ii. Rule: Congress CANNOT appoint an officer of the US besides those officers authorized by
Article I to assist in the legislative process
d. Metropolitan Washington Airports v. Citizens (1991): Federal airports transferred to Commission
operated by VA, MD and DC, Act gave Review Board right to veto Commission’s decisions, but
Review Board as made up of Congressmen
i. Holding: Stevens: Court found Act INVALID because Congress can’t vest in itself agents
with executive power
1. If they were being executive, can’t do that because Congress isn’t executive AND if
they were being legislative, can’t do that because violates Article 1 Section 7
(bicameralism & presentment)
ii. On Remand: Didn’t put Congressmen on the Review Board, but put individuals who are
registered voters not in DC, MD or VA, and are on lists of candidates supplied to Commission
by House and Senate
1. DC circuit struck down and SCOTUS refused to hear it again
III.
Presidential Control Over Agency Actions: Appointment
a. Article II allows president to appoint “Officers of the US” with advice and consent of senate
i. Congress can invest power to appoint “Inferior officers” in the President, Courts of law, or
heads of departments”
b. Morrison v. Olson (1988) Superfund law, DOJ’s OGC may have given false testimony, Morrison
appointed as special investigatory counsel, served subpoenas
i. If certain criteria are met, AG must call judges of the Special Court who must appoint an
independent counsel, who could be removed for “good cause/disability”
ii. Holding: Rehnquist: Since the Independent Counsel was an inferior officer, the inter-branch
appointment was permissible unless it impaired the ability of the Executive Branch to perform
its functions - “good cause” removal provisions don’t impermissibly undermine or impede on
the executive branch functioning
1. Does NOT disrupt the proper balance between the branches
iii. Approach: Functionalist- Allow appointment of prosecutors in judiciary contempt cases,
(policy reasons)
iv. Test for finding whether legislation is an impermissible intrusion on S of P: (Morrison v.
Olson)
1. Does it limit his ability to “take care” and faithfully execute the laws?
2. Does it impede his constitutional duties?
3. Does he still have effective control over the executive branch?
v. RULE: No violation of the separation of powers by increasing the power of one branch at the
expense of another. Grounds for finding that she is an inferior, not a principle officer, so no
violation of the appointments clause (is she subordinate/independent, scope of jurisdiction,
extent of duties)
1. Ability to remove someone at will isn’t imperative to carrying out executive
functions (different than Weiner and Buckley principle)
2. Subject to removal by a higher executive official (AG), only performed limited duties
(only one task), no policy making duty
3. Court can terminate to be used narrowly when task is virtually completed
(functional)
vi. Scalia (dissenting): Law has to be struck down because (1) Criminal prosecution is an exercise
of "purely executive power" as guaranteed in the Constitution and, (2) the law deprived the
president of "exclusive control" of that power (Congress can’t qualify by adding limits to that
exclusive control)
1. Two checks against abuses of power, can impeach a person who impedes
investigations, and political check, remove president at next election
vii. Notes: Should have independent counsel investigating executive wrongdoing
1. Most people think it falls under Myers, not Humphreys, but Rehnquist thinks its more
like Humphreys, but establishes a different test
c. Freytag v. Commissioner of IRS (1991): Whether Tax Court (Article I, leg) qualifies as a
department or a court of law (can special trial judges be appointed by the chief judge?)
i. Rule: Tax Court judges are inferior officers, BUT Department is only a division of the
executive branch - But Tax courts are courts of law for appointments purposes
1. Don’t want to let the power to appoint be a way to decrease public accountability
ii. Holding: Blackmun: Allowed even though Tax Courts are within the legislature (Article I),
court of law, because the court makes adjudicative decisions
1. BUT then how do the freestanding or independent agencies fit?
2. Limiting definition of “Department”
3. “Inferior Officers” includes special trial judges on US tax court – president can
appoint them if Congress vests power in President instead of “Courts of Law”
iii. Free Enterprise- Adopted reasoning of “self-contained entities in executive “branch” where
class of duties are allotted to a particular person
d. Edmund v. US (1997): Military judges have neither limited jurisdiction nor limited tenure – Court
found them to be “inferior officers” (other factors for determining inferior than Morrison)
i. No power to issue final decisions unless permitted by superiors, who were appointed
ii. Inferior/Superior: Inferior if you have a superior/have a relationship with a higher ranking
officer below the President, have work which is directly supervised at some level by a person
who is appointed by the president and confirmed by the senate
iii. Officers or Not: Whether they exercise significant authority over the laws of the US (Case)
e. Misretta v. United States: President appointed members to Sentencing Commission, approved by
senate, 3 of 7 are federal judges – attorney general is non-voting member
i. Holding: Blackmun: Court UPHELD Sentencing Commission act. The vesting of nonadjudicatory activities in the judicial branch DOES NOT violate S of P
ii. Approach: Functionalist: Separation of Powers not violated with an independent commission
in judicial branch – flexible, and practical approach used here
1. Commission is not controlled or accountable to the judicial branch, doesn’t add to
judicial branch powers, Commission has no judicial authority
2. Delegation doctrine: had guidelines and protocols, so clear about what congress
wanted- delegation doctrine was probably not violated
3. Not too political (which would be executive), not beyond their expertise (not
deciding foreign policy)
4. Executive and legislative branches voted for it (ok here, but argument didn’t work in
Chada or Bowsher)
iii. Test: Does the extrajudicial assignment undermine the integrity of the judicial branch? NoThe commission is only focusing on the development of rules, not sharing judicial powers in
decision-making
iv. Scalia (dissent)- Constitution not a suggestion, but a structure to be followed closely
f. Intercollegiate Broadcasting v. Copyright (2012): Copyright Royalty Judges issued a final
determination adopting royalty structure
i. Holding: Court INVALIDATED Act for appointments clause violation. CRJ’s were principal
officers who had to be appointed by president and confirmed by the Senate
1. Can’t have principal officers who are able to be removed by Librarian of Congress,
so remedy by changing Judges to be “inferior officers”
ii. Inferior or Superior? Have little substantive oversight, librarian can only remove for cause,
rate determinations weren’t reviewed or corrected by any other officer within the executive
branch – so they were probably superior officers – but changed status
1. Ratemaking has huge control over the industry, so need to make sure constitutional
appointment and supervision of authority
IV.
Presidential Control Over Agency Actions: Removal
a. Court allowed “for cause” removal power whether or not person was purely executive or quasijudicial/legislative – turned on impediment to executive functioning in Morrison
i. Court now takes a functional approach in reviewing congressional restrictions on President’s
removal of officials (1) What type of function do they exercise? (2) Are they a principal or
inferior officer? (Morrison))
b. Myers v. US: Postmaster General fired Postmaster of Oregon before end of 4-year term
i. Postmaster and cabinet members serve under a Tenure of Office Act
ii. Holding: Taft: Court UPHELD presidential authority to remove postmaster even though his
statutory term was longer (Postmaster is purely executive)
iii. Rule: The power to remove inferior executive offers, like that for superior executive officers,
is incident of the power to appoint them, and is in its nature an executive power
1. Congress can’t participate in the exercise of executive power
iv. Holding: President has exclusive power to remove executive branch officials whose functions
are purely executive- doesn’t need approval of Senate or other legislative body
1. (Dissent): Prescribing conditions under which an officer can be removed is a
legislative duty
2. (Dissent): Myers was an inferior officer, so should follow other rules about
discharging him
c. Humphreys Executor: FDR tried to remove FTC commissioner before his tenure was up
1. FTC commissioner made investigations and reports to Congress, and proposed
judicial decrees for the courts, so both quasi-judicial and legislative
ii. Holding: Court INVALIDATED removal. Congressional intent was to create body
independent of executive authority, except in selection – Commissioner was quasi-x
1. Congress can make place limitations on heads of independent agencies to dismissal
for things like “for cause” to insulate from political pressure
2. Coercive power of removal threatens independence of commission, plus Commission
had a very limited role, limited power
iii. RULE: If the officer is quasi-legislative or quasi-judicial, and not purely executive, then
separation of powers prevents placing an unlimited power of removal in Pres.
d. Weiner Case: Since president couldn’t dictate the outcome directly, he couldn’t do so indirectly by
having the power over their firing
i. Holding: Commissioner who was wrongfully removed could be sued for back pay
1. Didn’t decide if he could get job back –even if they get back pay, Pres. could violate
and fire
ii. Rule: No express provision that someone could be fired without cause, but Court found it
implied in statue because the agency exercised quasi-adjudicative powers
e. Sierra Club v. Costle (1981): EPA issued new sulfur emission standards, lower standard would
have been hard for economic stability (opposed by Senator Byrd and Pres. Carter)
1. Proposed draft rules, written comments, documents and written responses from
interagency review process during rulemaking should be in the docket
ii. Holding: It WAS NOT necessary for due process to docket a face-to-face policy session
between EPA officials and the President after the comment period because the rule wasn’t
based on any information arising from that meeting.
1. Don’t need to document every single rulemaking session
2. How is this an appointment/removal power issue? Isn’t it due process?
f. Portland Audubon v. Endangered Species Committee (1993): Litigation about timber sales in the
habitat of northern spotted owl: ESA’s 7 member committee can authorize exemptions from Act
during on-the-record hearing before ALJ and report by Sec of DOI
1. Section 557(d) prohibits ex parte communication between an agency decisionmaking member, and an “interested person” outside the agency
2. Numerous “off the record” meetings between white house and agency
ii. Holding: The committee’s proceedings are subject to the ex parte communications ban, and
POTUS is an “interested person” under the Act, so his communications are covered by the
provision
1. The Committee’s decisions are “quasi-judicial” so are adjudications under the section
- even though President appointed commission members, can’t dictate an outcome
iii. Congress hasn’t invaded any legitimate constitutional power of President in forbidding him to
attempt to influence a Committee decision – if President could influence decision, would
destroy the integrity of all federal agency determinations
iv. Rule: When an agency performs a quasi-judicial/legislative function, its independence must be
protected
1. President is not “an agency” and if he was, his actions would be reviewable by the
judiciary under an abuse of discretion standard
g. Free Enterprise Board v. PCAOB (2010): PCAOB members can be removed for “good cause” by
SEC Commission, and Commission can be removed by pres. for inefficiency, duty neglect,
malfeasance (multilevel protection from removal for PCAOB members)
i. Holding: Roberts: Court INVALIDATED Act, but allowed Board to continue its duties – the
removal process was contrary to Article II’s vesting clause – Act denied the President the right
to remove inferior officers directly
1. Decision of whether “good cause” exists isn’t with the president, but in the
Commissioners, who aren’t under direct Presidential control
ii. Approach: Formalist: Diffusion of powers is a diffusion of accountability
1. Board members are inferior officers whose appointment congress may permissibly
vest in a “Head of Department,” but President can’t here hold his subordinates
accountable, so his execution of the laws is impaired
2. Rejects Freitag – doesn’t worry about “Department” definition distinction
iii. Bryer (dissent): No S of P issues- doesn’t interfere with President’s executive power
V.
Presidential Direction of Regulatory Outcomes
a. Delegation: Statutes usually delegate decisional authority to a named federal official (Cabinet
Secretary, Administrator, head of a Commission, etc.) instead of the president
i. Stages of Regulatory Activity: (1) Agenda-setting, (2) Negotiation of Standards, (3)
Implementation, (4) Monitoring, (5) Enforcement
ii. Methods of Influence: Clinton was able to influence/dictate the content of agency rulemakings
and policy making (formal executive memoranda to executive agency heads, Bush had
“signing statements” when signing a statute into law
1. Influence by fear of his removal power, and his help in budgetary maters
2. Courts don’t pay attention to signing statements- little increase in authority re
Congress, but most authority still comes from his saying how statutes should be
interpreted and which ones are on his priority lists
iii. Increasing Politicization: Number of political appointees not stable, varied across agencies and
time with how close agency’s policy views were perceived to be aligned with the Agency’s
1. Issues with loyalty, trust and competence in agencies between career and political
appointees - need intra-agency checks and balances- make sure people on the inside
have long-term knowledge and no conflicts of interest like political’s might have
(close ties to industry after administration’s end)
iv. Obama Administration: Disavowed signing statements, but then used, appointed policy special
advisors/czars
1. But no real formal authority- can’t control budgets, hire or fire or promulgate
regulations – just powerful people influencing others
2. Czars make cabinet secretaries middle managers – disrupt executive power flow (plus
Czars have no accountability to Congress/voters)
b. Legal Basis for Presidential Directory:
i. Little Judicial Review: President’s directory authority has had little judicial review
1. Marbury v. Madison: President should use his discretion, accountable to his country,
political character, and his conscience
a. No review of executive officers except by President
2. Myers v. US: Even presidential power to remove doesn’t equate with power to direct
particular regulatory outcomes
3. Youngstown:
ii. “Take Care” Clause: President has authority to execute laws (even those that mention
Secretary as head) because President has power to execute all federal laws
1. Need a strong unitary executive to ensure effective governance
iii. General Deference: Deference among executive officials to presidents opinion –need
presidential oversight/ directory to make regulation democratically accountable
1. Maybe president has more oversight over everything- but can’t dictate outcomes?
Oversight as different from accountability
2. Accountability vests ultimate decisional authority in a person who is elected
(President is most accountable)
VI.
3. Popular control keeps check on unitary executive from becoming a dictatorship –
don’t want public power to be seized by private interests
Law & Economic Discussion
a. Libertarian Paternalism- Making it harder to do something, but not prohibiting it
i. Behavioral regulatory approach that manipulates how choices are framed to consumers
(Volokh Law Website- says L.P. will fail)
1. Ex: Soda size limitations, but can buy as many as you want
ii. Way of presenting alternatives - Nudge principle
1. Ex: check box to sign up or check box to opt out of Retirement Plan
iii. Change is designed to benefit your own welfare
b. Behavioral Economics: Econ & psychology shows that people are not always rational – risk
adverse, ex: lottery tickets
c. Veblen Goods: Theory of the Leisure Class (price goes up, you buy more- status)
d. Banzhaf: Favors government intervention in some circumstances
Topic 5: Other Legislative & Administrative Controls
I. Congressional Direction: Appropriations & Spending
a. Legislative Influence on Agencies:
i. Standing Committees: Oversight, hearings are designed to increase agency pressure, threats
of investigation
ii. Appropriations/Funding: Determine agency funding, not only x amount, but dictate what to
spend it in (limitations and riders)
1. Legislative bodies write laws which impact executive agencies
a. Can put riders in appropriations bills (“and no portion of this appropriation
shall be used for ___”)
2. Funds can be authorized in the legislation, but then have to be appropriated
3. Legality: No SC case has addressed whether appropriations directing agencies to act
or not unconstitutionally infringes upon president’s authority
4. Limitation rider- says that agency can’t spend any of the appropriated money to
engage in a specific activity
a. Used to prohibit finalization of particular proposed rules
b. Prohibits the development of regulations on particular statues or issues
c. Limitation riders help congressional majorities more under divided
government than under a unified government
5. Allowed as “spending retrenchments,” don’t require orders from House Rules
Committee to reach the floor, less Presidential ability to remove individual riders
6. Agencies can work around appropriations limitation – might issue a guidance
document instead of a regulation or another agency with overlapping statutory
authority might take the responsibility
7. Substantive riders- Impel (or impede) regulatory action (“can’t use this to pay for a
salary if that person will prohibit the enforcement of x”)
8. Presidential “impoundment” or refusal to spend money for certain activities
9. Programmatic impoundments- if money no longer needed, no mandate to spend it
iii. Congressional Review Act:
iv. Agency Proceedings: Legislature can participate in agency proceedings
1. Rulemaking: No limits on Congressional ability to submit proposals for rulemaking
or comments on existing rulemaking proceedings
2. Adjudicatory: Congress can initiate and participate in many agency proceedings (but
some limitations)
b. Executive Influence on Dependent Agencies:
i. Califano from HEW (not HHS): Hard to get agencies to operate
1. Political’s or career people might be resistant to change
ii. Harder to inject new ideas into agencies – hard to implement new strategies because of
bureaucratic inertia (but more stability?)
c. Executive Influence on Independent Agencies:
i. Harder to influence an independent agency, but possible.
ii. Budget Control: OMB of executive branch controls agency budget requests
iii. Litigation: Question of legal defenses in defense of an Agency is made by DOJ/ executive
branch, not by the agency (including settlement agreements)
iv. FOIA: Information requests go through executive branch agency – may influence response
v. Signing Statements: Used by president when legislation passed, often in relation to agencies
(not a veto, but not an endorsement)
vi. Impoundment: President can impound various funds
vii. Czars: Ability to appoint czar has persuasive power, but how does that impact agencies?
viii. Limitations: Limits on removal power - FTC Chairman: Paul Randixon: President asked him
to leave for new administration, but refused to leave office
1. Can’t fire Commissioners if the have a term limit EXCEPT for cause
2. Difficult to determine what is “cause” and how established
3. Most employees are protected by civil service
b. Other Influences on Agencies:
i. Industry - if regulatory agency deals with a small industry/smaller interest groups
1. FDA has close ties with drug companies/ FCC and Broadcasters
ii. Media has large influence on agencies – different today (blog/twitter)
1. Peace symbol, front page of Washington Post, trademark case shut down application
iii. Public Interest Organizations also influence
Topic 6: Methods of Obtaining Judicial Review (Damages)
II. Methods of Obtaining Judicial Review, Damages Actions, Suing States
a. Specific Relief: Injunctions, Declarations & the Prerogative Writs
i. Banzhaf: Favors more expansive judicial review, narrower reading of doctrines intended to
prevent judicial review (mootness, standing, etc.)
ii. More review creates more agency expense, harms public interests, adds to delay of agency
actions, weaken agency action
b. Historical Judicial Review:
i. Judicial Review in France: Had to bring a common-law cause of action (strong presumption
against judicial review)
1. Agencies treated like people – charge with conversion for tax issues
c. Means of Getting Judicial Review of Agency Decisions:
i. APA is not a source of jurisdiction, then frame action (not like a common law) but within
boundaries of APA
1. But 28 USC §1331 – federal question statute – provides jurisdiction for suits in
federal district courts raising questions under federal law
2. Or under the specific statute – details review by a court of appeals (usually)
a. But what if the organic statute doesn’t make its statutory jurisdiction
exclusive – can they use either that statute or 1331 or something else?
b. What about if they’re raising a claim not exactly within the provision
allowing judicial review?
i. Might allow suits failure to act under that specific portion
ii. Issues: Sometimes not clear which court to go to because statute may not be as clear about
where to review (if file in wrong court, issues with Statute of Limitations if refilling)
iii. Specific Statutory Review: A statute sets process for judicial review
1. As long as your situation falls within the statutory requirements, you get the review
2. Ex: FTC says “person ordered to cease and desist from unfair trade practice may
seek judicial review of a final order by filing in US court of appeals”
3. Normally in Court of Appeals – appeal from an agency decisions is similar to an
appeal from lower court (petition for review)
iv. General Statutory Review:
1. Ex: Same FTC, but want to appeal something that isn’t a “final” order – doesn’t fit
in specific statutory framework
a. TRAC: Where a statute says final action reviewed in court of appeals, bring
all actions in court of appeals because otherwise might affect future statutory
powers to review decisions {hard to know what fits in this rule}
2. Normally but NOT always in District Court – need jurisdiction
a. Still have to find jurisdiction and a cause of action
v. Non-Statutory Review:
1. Federal courts only have jurisdiction given to them by statute (§1337: commerce,
§1342: deprivation of constitutional rights by state officials, or §1331: federal
question, §133x: diversity), so have to give the courts that statutory jurisdiction
2. Have to use historical writs, etc. because no particular statue
a. Ex: Equitable maxims
3. Issues: Injunction, writs are remedies, not causes of action
a. Sometimes in district court, or force agency to go to court
d. Prerogative Writs: Originate in British law (common law), equitable rights with equitable relief
i. Most equitable rights or actions come with equitable maxims
1. May have a legal right, but if relief you want violates an equitable action, can be
denied remedy (“Equity won’t reward dirty hands, etc.”)
ii. Certiorari: Order by a higher court directing a lower court to send the record in a given case
for review – like SCOTUS petitions
iii. Habeas Corpus: Challenging validity of holding person; demands that a prisoner be taken
before the court to determine whether there is lawful authority to detain the person
iv. Mandamus: Remedy/Order issued by higher court used to compel or to direct a lower court
or a government officer to perform ministerial/non-discretionary duty (ex: license)
1. But limited, because few governmental duties are purely non-discretionary
2. If an official goes beyond his discretion: Can still seek a remedy in the nature of
mandamus to compel them to stay within ‘zone of discretion’
a. 28 U.S.C. §1361: “District courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or of the US or any
agency thereof to perform a duty owed to the P”
b. Ex: 20 years of fireman service, right to retire and get pension
i. Pension Board said no, court declined to consider the order because
would “Let a Public Mischief” which was an equitable doctrine
v. Prohibition: Directing a subordinate to stop doing something the law prohibits;
vi. Procedendo: Sends a case from an appellate court to a lower court with an order to proceed
to judgment;
vii. Quo Warranto: Requiring a person to show by what authority they have to hold
office/exercise a power;
viii. In Re: An action brought on behalf of something which is not properly able to represent itself
(historically wives had no legal capacity so, sued on their behalf)
1. Bribes MD Governor/VP: Guilty, but not required to give $ back
a. GW Students brought suit: Agent and principle- if someone bribes an agent,
then the principle has a cause of action against the principle to recover the
funds
b. Qui Tam- Can recover from an injury for a person who is dispossessed and
not able to bring the action
ix. Writs all impact agency behavior and policy (unlike damages which is just $$)
1. Not really a suit against the sovereign because sovereign didn’t order its agents to
violate the law (certain relief is codified- determines what rights you can seek)
e. Damages: Good option- “sue the bastards” if you have a tort claim – less issue with standing and
cause of action because more explicit
1. Sue agency or the individual – more likely to have impact on agency action
2. Contingency fee- so makes it easier for poor people to sue
3. If agency action injured a private party, could sue in tort or contract for damages
ii. Tort Action: Sue agency or the individual – more likely to have impact on agency action
1. Contingency fee- so makes it easier for poor people to sue
2. No need for new common law theory, don’t have to worry about standing, because
you got tort-ed AND it’s a good way to deter government repeating mistakes - $$
3. Banzhaf loves tort actions – “most effective way of getting judicial review of
agency actions because potential for assessing real and substantial damages”
(sometimes punitive) both against governmental official and governmental unit
4. Limitations: Sometimes agency did wrong, but didn’t commit a tort, but strong
public interest in redressing wrong-doings to citizens
a. (1) P must have suffered significant harm of torts-damages injury type
i. Not like Mass v. EPA damage – injury-in-fact
b. (2) Injury must be a TORT (not just the agency violated procedure)
5. Issues: State or Federal? Action against a governmental unit (state or municipality)
or an individual (cop to AG)? Cause of action constitutional or common law? Is the
person being sued immunity from suit (qualified or absolute)? How to overcome?
a. If tort claims are allowed to get too broad, it might “dampen the artier” of
gov’t officials who will no longer have the courage of convictions to carry
out their official duty – or nobody would run for those positions
6. Cures: (1) Give immunity (qualified or absolute) or (2) Allow them to sue
government entity but NOT the individual (shield employees)
a. Scales of immunity – maybe need immunity because deal with more people
so more potentially aggrieved by your actions – things you do are more likely
to be harmful/controversial to average person (big decisions about spending
allocations, disability claims, etc.)
b. Give absolute immunity because if point of immunity is to prevent wasting
official’s time with too many suits, discovery may be too intrusive
c. Don’t want people just putting causes of action in the complaint and letting
them sue
III.
Damages actions against government officials ARE VALID when:
i. Looking at the existence and nature of enforcement mechanisms when trying to obtain
damages for statutory AND constitutional violations
b. (1) Constitutional Violations are Committed in the Course of Their Duties
i. Consider “constitution” to be a statute giving certain causes of action
1. Court won’t imply when there is an alternative effective remedy, court perceives a
special factor counseling hesitation or if it is difficult to define a workable cause of
action
2. Federal Tort Claims Act (FTCA) immunity form personal liability doesn’t extend to
constitutional wrongs
ii. Historical: Used to be immune if you acted “in good faith or in reasonable belief” but that
didn’t work because both subjective (good faith) and objective (reasonable belief)
iii. Now: “Knew or should have known” that actions violated the constitution, then enjoys no
immunity (objective)
iv. State Officials: Statutory action for constitutional violation damages: 42 USC §1983: Persons
acting under color of state law- meant to create a dividing line between suing feds (Bivens)
and suing state (§1983)
1. States/state agencies can’t be sued under this statute
2. Judges get absolute immunity, others get qualified immunity
v. Damages claims against state/local officials in individual capacity are subject to the same
official immunity defenses available to federal officials in Bivens actions
vi. Statute can be used to seek damages against government entities below the level of the state
itself – entities can’t assert immunity defenses, but limited liability for their employees’
actions
vii. Bivens Actions: Action can’t be brought against an agency or a top official just because of
their supervisory position (applies to federal officials who violate US constitution)
1. Ex: Applied to members of Congress- even though blatantly firing someone because
of their gender, can’t be sued (but can under equal protection)
c. (2) State and Local Officials Commit Certain Federal Statutory Violations
i. Common Law: Originally, no immunity- tax collector would be sued, and he would have to
pay (not the government)
1. But then judges didn’t want to abide by that, so created absolute immunity for them
– now applies to any employee exercising discretion
ii. Law Enforcement: Police are largest single gov’t agency, wrong decisions are more likely to
create harm
1. Lower level officers have no immunity from common law suits because they do not
“exercise discretion,” but higher officials do have immunity (differentiate by rank)
iii. Federal Officials: Absolute immunity, because always considered to be exercising discretion
1. Suing for “wrongfulness” under CL tort, have issue with absolute immunity SO:
Bivens Action- Some torts arise out of statutes – court implies new cause of action
for statutes
d. Suing States to Enforce Regulatory Obligations
i. Some statutes require state agencies to conform to same regulations as private parties
1. Sometimes federal courts allow enforcement of a federal obligation imposed on a
state actor by suing the responsible state official seeking an injunction that the
official conform his conduct to federal law (Ex Parte Young- pg. 1205)
2. Congress can require that states consent to suit in order to get some benefit that the
Federal government doesn’t already give them
ii. As long as regulation is not “commandeering” the process of state government, and Congress
makes sufficiently clear that states are to be included in the class of those regulated, SCOTUS
hasn’t brought up 10th amendment claims (“Powers not granted to the federal government nor
prohibited to States are reserved for the states and the people”)
iii. Can impose substantive obligations on states, but can’t create legal enforcement of those
obligations
1. SCOTUS has held that states’ sovereign immunity from suit without their consent is
embodied in the Constitution – Article I doesn’t give Congress the power to
abrogate this immunity
iv. States can’t assert sovereign immunity in actions by the US (if US sues a state)
e. Suing Cities/Municipalities to Enforce Regulatory Obligations
i. Cities as entities can be sued for constitutional torts under §1983: Applies to “persons
operating under color of . . .”
ii. City responsible for respondeat superior- if the agent is liable, then ordinarily the employer
becomes liable – but not the way it works under §1983- no automatic respondeat superior
1. Entity liable only if the official was acting “in accordance with the policy or practice
of the municipality” (so have to show that it’s the policy/practice of the city – like
certain methods are involved in training, or encouraged)
iii. Municipalities have immunity? NO (but not liable for punitive damages)
1. Maybe an individual officer would be off the hook, but not the city
f. Suing Federal Officers to Enforce Regulatory Obligations
i. Federal government has no sovereign immunity under the FTCA
ii. (1) Diplomats, foreign nationals (look at statute)
iii. (2) Some intentional torts (but not all- decided by statute)
iv. (3) Torts from which gov’t were exempted (rule for law enforcement officer)
1. People who have the power to arrest and detain
v. (4) Discretionary Function Exemption (excepts the government if what’s involved is a
discretionary exception)
1. No good clear test of what that means- but maybe distinction between
“governmental and proprietary” (too simplistic- not used anymore)
a. If gov’t is engaged in an activity normally done by private groups (hospitals),
then can be held liable
2. Whether it required “governmental discretion”
a. Ex: Plane hijacking, Waco, TX situation (Reno)
g. Process for Interim Relief:
i. §705 of the APA: Allows reviewing court, on application for certiorari/ appeal/writ, to issue a
process for postponing date of an agency action or to preserve statutes or rights pending
conclusion of review proceedings
ii. Power to issue a “stay” doesn’t need statutory authorization – part of traditional tools for the
administration of justice
iii. Considerations for an application for a Stay: (VA Jobbers) Petitioner must:
1. (1) Strong showing that moving party is likely to prevail on merits of its appeal
a. Without such a substantial indication of probable success, there would be no
justification for the court's intrusion into the ordinary processes of
administration and judicial review.
2. (2) Without such relief, moving party will be irreparably injured.
a. Mere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough. If
compensatory relief will be available, weighs heavily against a claim of
irreparable harm.
3. (3) The issuance of a stay will not substantially harm other parties interested in the
proceedings.
a. Determine whether, despite showings of probable success and irreparable
injury on the part of petitioner, the issuance of a stay would have a serious
adverse effect on other interested persons. What qualifies as the equitable
judgment that a stay represents?
4. (4) Show where lies the public interest
Topic 7: Standing to Invoke Judicial Review
I. Standing to Invoke Judicial Review
a. Complicated because often used as a cover if judges don’t want to deal with a substantive issue
(like ripeness, mootness), judicial deference to legislature for political decisions
b. Standing: Justice Douglas: “Generalizations about standing to sue are largely worthless”
1. Standing is a jurisdictional requirement – so challenge can be raised at any time
2. Constitutional – courts can only hear Cases & Controversies
3. Prudential – can be altered or eliminated by statute, judicially created
ii. Historical progression of standing - Change in 20th century to allow more individual claims
for judicial protection from gov’t action without a common law injury (and courts agreed)
1. More difficult when litigants aren’t impacted differently than the rest of population
(Flast v. Cohen tax case), environmental regulation where many groups had a stake
iii. (1) Invasion of Legally Protected Right
1. Only people who were ordered by government to act who could challenge
iv. (2) Expansion of government benefits
1. Expansion of standing with Medicaid, GI bill, etc.
v. (3) Protecting the general public interest/welfare
1. Clean air, safe cars, etc.- those who clearly have standing were those who were told
to do something, but more issues about those not directly regulated
vi. (4) Incentive to Third Parties
1. Tax benefits to encourage hospitals to help poor people
vii. Shows shifting opinion about role of judiciary in the regulatory process
1. Normally, in private rights model, who could seek relief was not recognized as
distinct from whether the complaint stated a cause of action
viii. J. Scalia argued that access to the courts should be more difficult for regulatory beneficiaries
than for members of the regulated communities
c. Allen v. Wright: Asked SCOTUS to invalidate government action authorized by the normal
democratic political process
i. Are the judiciary, legislature and executive branch in the same position when individual is
attempting to force agency to comply with their authorizing statute?
II. Historical Standing  Standing under the APA
a. Alexander Sprunt v. US: Challenge to the Interstate Commerce Act- Commission to set “just and
reasonable” rates for RR carriages
i. SC didn’t recognize standing as an inquiry separate from case on the merits
ii. Their organization wasn’t harmed by higher rates, can’t be harmed from government creating
competition – NO STANDING
iii. No legally protected right to be free from competition
b. Tennessee Electric v. TVA: Private utility claimed creating TVA exceeded Congress’ Article I
power
i. SCOTUS: Neither statute or constitution gave companies right to be protected from
competition
c. At this point, got rid of the “legal right” test, and began the “aggrieved person” standing
d. APA 5 USC §702: “A person suffering a legal wrong because of agency action or adversely
affected or aggrieved by agency action within the meaning of a relevant statute is entitled to
judicial review thereof”
i. Standing challenges are really statutory challenges to how agencies exercise their regulatory
authority
ii. APA Standing: Doesn’t actually mention “standing” so maybe it just codified existing
standing law requiring a legal interest unless statute empowers aggrieved people to sue
1. OR APA §702 confers a right of review to anyone adversely affected in fact by
agency actions or aggrieved within the meaning of any statute
e. FCC v. Sanders: Communications Act of 1934: Radio station sued because of issuance of a FCC
license to a competitor
i. Even though no legal right to be protected from competition, SC allowed it because statute
gave standing to “any other person aggrieved” by agency action
ii. SCOTUS found congressional granting of standing to that class – best people to vindicate the
public interest were the public themselves
f. Scripps-Howard Radio v. FCC: Communications Act: Purpose of Act was to protect public
interest, private litigants have standing only as representatives of the public interest
i. SO “person aggrieved” statutory grant creates a “private attorney general” because can sue as
a private individual, ONLY IF you represent the public interest (sue because grant of license
damages public interest)
g. Associated Industries of NY v. Ickes:
i. Rule: Can’t give standing to bring suit to determine the constitutionality of a statute if there
is no justiciable controversy BUT Congress can give Attorney General OR another nonofficial public officer statutory right to bring suit to prevent an officer from violating his
statutory powers (therefore is an actual controversy)
1. Court found plaintiff’s DO HAVE STANDING
ii. Congress can’t give standing to someone who doesn’t meet the Article III case or controversy
– but can designate them to give people the right to sue on behalf of the public interest
(private attorney general)
iii. Notes: Sometimes Congress creates private AG’s in citizen suit provisions – so more people
can bring actions- provides with incentives (attorneys fees, treble fees)
1. BUT encourages people to litigate for small technicalities which might not be in
the public interest
h. Church of Christ v. FCC: Challenge by public representatives to a license renewal of a stationalleged radio had racial and religious biases – wouldn’t play MLK (DC Circuit)
i. Holding: Burger: FCC had to allow standing to some appellants – don’t need direct,
economic injury from the administrative action –– DO HAVE STANDING
1. Broadened category of injury (no longer economic), was a less tangible injury
2. Don’t need a “legally protected interest” to intervene anymore – intervention
should be allowed whenever the person seeking intervention would satisfy
constitutional standing requirements
ii. Rule: The point of standing is practical and functional- only those with a genuine interest in
the proceeding can participate, thus the radio listeners have genuine interest in licensing
iii. Consumers are best indicators of public interest, but Commission doesn’t have to give
everyone standing, can set criteria to determine who qualifies as a “listening community”
i. Agency v. Constitutional Standing: Not an Article III case originally, so no constitutional standing
requirement – issue is whether they could intervene in proceeding before the agency
i. Sometimes associations can be the best representatives of public interest
ii. Church of Christ was an existing procedure – interest of how well the broadcast was serving
their viewers was central to FCC’s purpose, people seeking to intervene are clearly people
protected by the statute
j. Associational Standing: Still has to meet injury in fact, causation, redressability to bring suit in a
federal court, but need to meet the three requirements PLUS
i. (1) At least one member of the organization must have independent standing
ii. (2) Interest that association seeks to protect is germane to the organization’s purpose
iii. (3) Lawsuit doesn’t require participation by individual members – organization is capable of
representing the members
k. Scenic Hudson Preservation Conference: NYC blackout power crisis, proposal to build a large
reservoir and pump water up at night, and release it during the day
i. Hudson River Fishermen- needed to prove injury in fact because most other landowners were
counties or factories
ii. Holding: UPHELD standing, and expanded the Church of Christ standing requirement
1. Should be granted standing because (1) no opportunity to intervene in proceeding
(no agency hearing on issue) (2) Interest which they were asserting wasn’t central
to the case, but was peripheral (agency worried about power standards, not river
pollution, recreational uses), (3) Not clear that plaintiff’s were among those meant
to be protected by that agency (power generation v. fishermen)
2. So courts needed to protect the litigants’ claims and grant standing
iii. Rule: Litigants can secure standing if they are aggrieved within the meaning of the statute
because of the preservation of scenic integrity was in small statutory provision
l.
m.
n.
o.
p.
1. Expanded Church of Christ’s holding to include broader standing
Association of Data Processing v. CAMP: Trade organization challenged Comptroller that
national banks could enter data processing business 1. Zone of Interest Test: (1) Does plaintiff allege that the challenged action has caused
him injury in fact (economic or non-economic)? (2) Is the interest sought to be
protected by plaintiff is arguably within the zone of interests to be protected or
regulated by the statue, constitution, or a public interest in which Congress
recognized the need for review of administrative action?
a. First is a constitutional requirement (Article III case or controversy)
b. Second part of the test is prudential – for the purpose of judicial
economy, but not a constitutional requirement
ii. Holding: Douglas: NO STANDING because (1) no invasion of a legal interest (property,
contract, protected against tortious invasion or one founded on a statute which confers a
privilege), (2) which is protected by a legal right (freedom from competition isn’t a legally
protected right)
iii. Rule: If the interest sought to be protected is arguably within the Z of I sought to be protected
or regulated by the statute or constitutional guarantee, Court should grant standing (Tennessee
Electric v. TVA)
1. But look at statutory purpose and congressional intent in determining scope of
standing (zone of interest)
iv. Trend toward enlarging the class who may protest administrative action
Barlow v. Collins: Challenge by tenant farmers of a Dept. of Ag regulation assigning crop
payments, someone would be hurt regardless of agency action
i. Brennan: Applied the “Zone of Interest” standard
ii. Thinks only the first step should be used- the second one is just like the discredited inquiry
that P has to show government action invaded his “legally protected interests”
Sierra Club v. Morton (1972): SC challenged USFS’s permitting of Disney park
i. Plaintiff wanted to create standing that didn’t require pleading specific facts showing
individual members being specifically impacted
ii. Holding: Court found NO STANDING – Organization cannot aggregate interests and injuries
of their members - no ideological plaintiff can have standing (4-3 decision)
iii. Test: Court recognizes non-economic injury (environmental well-being)
1. Stewart: “Injury in fact” test requires more than an injury to a cognizable interest
2. Requires the party seeking review to be among the injured
iv. Just because it’s a public action from a public interest group doesn’t mean that individual
members need to have a proven injury in fact – no proof here of how members injured
1. Prudential limitation on standing – prevent flood of suits by only allowing those
who have a direct stake in the outcome to bring the suit
Notes: Shockwave through environmental community
i. Was a ploy to get around “plaintiff shopping” to get plaintiff’s who meet certain criteria and
just reason to sue – regarded as a major roadblock by anyone who would want to bring
environmental action in the future
US v. SCRAP (handout) (1973): GW students tried to restrain enforcement of orders allowing
RR’s to collect a surcharge, said ICC didn’t do an EIS under NEPA
i. Holding: DO HAVE STANDING under §704 because the students used the forests and
mountains in the Washington area to hike and fish, and this was disturbed by the non-use of
recyclable goods caused by rate increase
ii. Standing is not confined to those who show economic harm (even though Data Processing
and Barlow had economic injuries), aesthetic and environmental well-being recognized too
1. Aesthetic and environmental well-being are valid and just because shard by many
rather than the few, doesn’t make them less deserving of protection
2. Otherwise, the most injurious and widespread government actions could be
questioned by nobody- cannot accept that conclusion
iii. Test: Plaintiff has to show that he has been or will be perceptibly harmed by the challenged
action (not just imagine that he could be)
1. No reason to adopt threshold for standing beyond the “adversely effected” or
“aggrieved” (as opposed to “significantly affected”)
2. Defendants could have asked for a more definitive statement about where they
would be harmed (what forests would be cut?)
iv. Notes: Included CEQ as “involuntary plaintiff” (could move to be realigned or say that they
didn’t care- both are bad options, so had standing through CEQ too)
1. Goal: Don’t want people suing just to “vindicate the value interest of concerned
bystanders”
III.
Procedural Rights: Standing & Article III Requirements
a. Administrative law uses procedural requirements to improve agency decision making, control
regulatory power and improve legitimacy of agency action (NEPA process)
b. Lujan v. Defenders of Wildlife: Challenged DOI rule interpreting ESA to only apply domestically
as opposed to on international government projects - injured by potentially not being able to see
certain animals after international projects destroy their habitats.
i. Holding: Scalia: NO STANDING – no proof of actual injury, and no redressability, and
difficulty in proving causation
ii. Rule: To be heard, P must have: (1) Injury in Fact- invasion of legally protected interest
which is concrete and particularized (injury affects P in a personal way), and actual or
imminent, not hypothetical (2) Causal Connection between injury and conduct complained
of (fairly traceable to challenged action of the defendant, not result of a third party not before
the court) (3) Redressability- Likely, not speculative, that injury complained of will be
redressed by a favorable court decision
iii. Party invoking federal jurisdiction bears the burden of establishing the elements
1. Higher threshold when P’s injury arises from government’s allegedly unlawful
regulation of someone else- “when the P is not himself the object of the
government action or inaction he challenges, standing is not precluded but is
substantially more difficult to establish
iv. Injury: General government grievance doesn’t have an Article III case or controversy
v. Redressability: District Court ordering the Secretary wouldn’t actually provide relief for the
endangered species, as the agencies wouldn’t have to follow his orders, other $ sources
vi. Separation of Powers: Congress can’t give just anyone a right to sue - is executive not
judicial right to make sure the laws are faithfully executed
vii. Kennedy/Souter (concurring): Might recognize procedural injury standing
viii. Blackmun/O’Connor (dissent): Enough evidence for trial on whether D was injured- let jury
decide, just because you can’t show the exact place where a species is killed doesn’t mean
you can’t show injury- “ecosystem nexus” argument works
ix. Notes: Without good showing that it’s protected information, can file FOIA request and get
whatever information (unless protected)
1. Appointment of special counsel – debate-gate: alleged that citizens have interest in
seeing that justice be done, lawyers want to see laws be enforced, had
particularized interest because of past association with the special counsel
2. Procedural harm- special prosecutor statue provided that people can petition AG
who is required to act
c. Steel Co. v. Citizens for a Better Environment: (1988)
i. Holding: NO STANDING: Emergency Planning and Community Right to Know Act didn’t
constitutionally authorize private suits alleging past Act violations
ii. Past activities are not sufficient for Article III Case or controversy. If the only remedy for
noncompliance penalties are paid to the US, not the individual plaintiff, doesn’t meet Lujan
d. Federal Election Commission v. Akins: FEC interpreted PAC to be a group with a “major
purpose” in nomination or election of candidates
i. Holding: Plaintiffs HAVE STANDING – Court allowed procedural standing, (denied in
Lujan), but found Congressional intent to give this class a claim
ii. Injury in Fact: Inability to obtain information on list of donors/amounts
1. Congress can create procedural rights, violation of which give rise to Injury in Fact
(even if small, can support action). These injuries were sufficiently concrete and
particular – need to evaluate candidates who receive $ from this group
iii. Scalia (dissenting): APA shouldn’t allow individual enforcement of executive regulation
against a third party – this generalized grievance is widely shared AND undifferentiated
e. National Credit Union v. First National Bank: Allowed banks to challenge regulations that
permitted credit unions to enroll unaffiliated members
i. Holding: Thomas: HAVE STANDING: Court does NOT require Congress to specifically
intend to benefit a particular class of plaintiff’s for them to meet the zone of interests test
ii. Rule: To be within the ‘Zone of Interest’ protected by statute, the court doesn’t need a
congressional indication of purpose to specifically benefit the would-be plaintiff, just has to
relate to their interests (more loose zone of interest test)
1. One of the Act’s goals is to limit the market that federal credit unions can serve –
changed interpretation impacts Bank’s – don’t want an unfair advantage
iii. O’Connor (dissenting): Majority is misinterpreting the Z of I test – should require that the P’s
alleged injury fall within the Z of I sought to be protected by provision in question
iv. Notes: Postal Workers: Previously had a monopoly, now allowed FedEx and UPS to compete,
employees denied standing to enforce laws because they lack competitive injury
f. Simon v. Eastern Kentucky: Challenged rule not requiring non-profit hospital to treat indigents
i. Holding: Powell: NO STANDING – Even if injury by hospital is alleged, insufficient case or
controversy if no hospital is a named D- can’t address injury done by a third party that is not
present in court
ii. Injury in Fact: Were being denied hospital services
iii. Traceability: Speculative whether denial of service can be traced to petitioner’s
encouragement through tax benefits
iv. Redressability: Even if granted relief, might not redress injuries because hospitals could just
choose to lose non-profit status, then they wouldn’t be required to provide indigent care
v. Rule: To have standing, the court must be able to craft redress that addresses the party’s
injuries, and the party causing the injury must be before the Court
vi. Notes: Could have pleaded that IRS claims “caused” instead of “encouraged” hospitals not to
treat indigents - just need a “good faith belief” that this would happen (analyst saying that
without tax deduction hospitals wouldn’t function)
1. SCRAP had 5 pages of standing with multiple alternatives
g. Allen v. Wright: (1984) IRS code allowing racially-discriminatory schools to have tax-exempt
status - racially segregated private schools expanded during desegregation, still getting tax ben’s
i. Holding: O’Connor: NO STANDING: Right to have Gov’t act in accordance with the law
isn’t sufficient for standing – the indirect injury here is too attenuated
ii. Rule: Injury must be distinct and palpable, not abstract or hypothetical, must be fairly
traceable (causation) and relief must be likely to follow from a favorable decision
iii. Injury in fact: Claim they’re injured by lack of opportunity to received a desegregated
education BUT this is not fairly traceable to government conduct – fairly traceable only if
there were enough racially discriminatory private schools (but poor pleading problem)
1. No injury from theoretical discrimination- need to actually apply and be rejected
iv. Flast v. Cohen: Taxpayer standing is too attenuated- taxpayers don’t have standing just
because they suffer a minute injury in fact
1. Exception if it directly violates a spending clause (church funding which violated
separation of powers)
v. Notes: IRS changed tax code, and congress blocked– their intent was clear, plus Court
shouldn’t decide how agencies should spend their resources for prudential reasons
IV.
Traceability & Redressability
a. FOE v. Laidlaw: CWA allowed citizen to bring civil action against any person alleged to be in
violation of an effluent standard– D complied with NPDS, but free to resume behavior
i. Holding: Ginsburg: Court found STANDING. D said there no demonstrated proof of harm to
the environment from mercury discharge violations but the injury was the perception that
river was polluted - not the actual pollution (aesthetic and economic injury counts)
ii. Standing because these people lived by river, knowing pollutants were in water, injured their
way of life, pollution still occurring when suit filed (adequate injury in fact)
1. But this injury cant be an unfounded fear, “reasonable concern”
2. Civil penalty as a deterrent (redressability)
iii. RULE: Defendant has the “formidable burden” of showing that it is absolutely clear that the
allegedly wrongful behavior couldn’t reasonably be expected to reoccur – then is moot- could
change management, new practices, etc.
b. Massachusetts v. EPA: Org’s asked EPA to regulate GHG emissions under CAA
i. Holding: Stephens: Massachusetts has standing under Article III to challenge EPA’s
requirement of federal regulation of GHG emissions under the CAA
ii. Congress gave states a right to sue the government under the CAA for withholding action
unlawfully- to protect their sovereign interests (standing to enforce a procedural right to
challenge denial of rulemaking petitions)
1. Standing- whether petitioners have such a personal stake in the outcome of the
controversy as to assure that concrete adverseness (Baker v. Carr)
iii. Injury: Massachusetts would be harmed by global warming because it has a large coastal
property- rising sea levels would harm them (Sovereign interest independent of its citizens)
1. Just because injury is widespread doesn’t lessen its protection
iv. Causation: EPA recognizes a connection between GHG and global warming
v. Redressability: Just because EPA can’t stop global warming, doesn’t mean that they can’t
take steps to try and slow or reduce it – will slow the pace and relieve an injury to the state
vi. Rule: If there is sufficient proof of injury in fact, causation and redressability, then the
petitioner has standing to bring a constitutional claim.
vii. Roberts/Scalia/Thomas/Alito dissenting: The challenges are “nonjusticiable,” redress of these
grievances are ‘the function of Congress and Chief Executive,’ not federal courts, redress
wouldn’t help petitioners specifically, but all humanity
c. Standing by Banzhaf:
i. Banzhaf thinks causation element in Mass v. EPA is even more extended and attenuated than
SCRAP. Look at Georgia suing to protect its own citizens (Parens patriae)
ii. Banzhaf sued about lung cancer- causation- if a smoker dies of lung cancer then probably
from smoking but more difficult to establish if smoker dies from a stroke or heart attack
1. Companies couldn’t claim assumption of risk because states didn’t assume
anything, their citizens did – then could use statistics (if only 30% is valid, then get
30% of money for state)
iii. Be thorough about pleadings- allege everything, lots of alternatives, take time and space in
your pleading- lay out as many as possible, slightly different phrasing
iv. Add as many good types of plaintiffs- who can add new injury or causation, etc.
v. Be creative about theories (like 3rd party beneficiaries for hospitals, involuntary plaintiffs)
1. There is no adverse precedent if a new theory
vi. Plead as specifically as you dare – look at what the court says “need more specific pleading”
(‘tends to do that’ or this ‘encourages this’ instead of this makes this happen’)
vii. Make them want to take the case- appropriate for the court to become involved, if you don’t
take it, these horrible things will happen
1. Include policy arguments if judge is receptive to it- why is standing helpful here,
why should/shouldn’t it be construed strictly
viii. Use supporting quotation – Massachusetts had better language than Lujan
1. Clearly distinguish cases that are against you
ix. If you can assert a procedural injury, burden of causation is greatly decreased
1. If there is a procedural injury, only have to show that the procedural step was
connected to the substantive result
Topic 8: Reviewability (Presumption, Express & Implied Preclusion)
I. Presumption: Express & Implied Preclusion
a. Statute could implicitly foreclose judicial review
i. Standing and Reviewability: Congress can create injuries (procedural) and give standing to a
certain class, but if no standing for any plaintiff, then maybe just not reviewable?
b. APA Reviewability: Review under §707 abuse of discretion unless under §701: Preclusion &
Restriction: Chapter applies except that:
i. (1) Statutes preclude judicial review (either expressly or by implication); OR
ii. (2) Agency action is committed to agency discretion by law.
iii. APA now creates a strong presumption of review
c. Courts least likely to find reviewability where it’s a broad constitutional issue, more likely if
it’s a question of fact or mixed question of law and fact
II.
Implied Preclusion
a. Implied Preclusion: Nothing written saying you can’t do it, but implication that it shouldn’t be
reviewed (from history, statute’s terms/structure, or problem it addresses/type of agency, etc.)
i. Review will generally be permitted unless there is a reasonably clear indication of an attempt
to preclude review (APA PASSED IN 1946)
ii. Precluded not by express language, but by the structure of the statute and provisions for
alternative methods for review
b. Before APA: Switchmen’s Union v. National Mediation Board: Union lost a representation battle
with a rival union, wanted to challenge an election decision made by the Board
i. Holding: NOT REVIEWABLE. If Congress had wanted the judiciary to review the
Mediation Boards’ decisions, they would have “made its desire plain” BUT the statutory
language points to the decision that Congress DID NOT want the courts to hear it
ii. Other Reasons: Didn’t want to drag out the controversy (courts are slow), it was a mixed
question of law and fact, only involved one union, made it more difficult to review
iii. Notes: This case is usually distinguished, instead of followed today
c. After APA: Changed presumption toward reviewability unless explicitly says not to
d. Abbott Laboratories v. Gardner: Background of FDA implementing rule requiring disclosure of
generic name on bottle “every time” brand name was mentioned
i. Issue: Did congress intend for judicial review of pre-enforcement of FDA rulemaking?
ii. Rule: Judicial review of a final agency action will be presumed unless there is “persuasive
reason” to believe Congress wanted otherwise
iii. Holding: Court ALLOWED REVIEW. Court changed pre-enforcement review presumption
– Court respected Congress’ intention for broad scope of APA reviewability
iv. Court finds it RIPE - Companies want to sue now before they have to use challenge to rule as
a defense – make themselves look like they’re hiding
1. Injunction: Had to claim irreparable harm that if they disclose too much
information, would lose competitive advantage, don’t want to be seen as violating
the law and have the public repercussions
v. Fortas (dissent): Shouldn’t allow an injunction on a matter crucial to public health
vi. Notes: Both sides moved for SMJ – so government made the error of saying that there were
no facts at issue – so court can decide it as a matter of law
1. Government should have said facts were undecided, and tried to make it not-ripe for
judicial review
e. Block v. Community Nutrition Institute: Agricultural Marketing Act set minimum prices between
milk handlers and producers, issue over delay in assigning pricing scheme
i. Holding: O’Connor: Reversed court of appeals- found that there was NO STANDING
ii. Standard then: The ‘clear and convincing evidence’ standard
1. Only use that to support presumption for finding judicial review of administrative
action (unless Congress’ preclusion is “fairly discernible”)
iii. Rule: The presumption favoring judicial review is overcome when congressional intent to
preclude judicial review is “fairly discernible” in the statutory scheme
1. Don’t strictly apply the clear and convincing evidence standard – use the lower,
easier “fairly discernible” test
iv. View intent legislative history or specific statutory language – statute says that the buyers
cannot obtain review of the process only after they exhaust administrative remedies
1. Original statue had no judicial review provision – complex statute so would have
made sense to include that language if they had intended review
f. Bowen v. Michigan Academy: Family physicians challenged HHS regulation that set higher
Medicare reimbursement levels for board certified physicians than non-board certified.
i. Issue: Are Part B issues reviewable? (Part A provides for judicial review, Part B does not)
ii. Holding: REVIEWABLE. Legislative history provides specific evidence of Congress’ intent
to foreclose review of amount determinations (minor matters) but matters to which Congress
didn’t delegate to private carriers are susceptible to judicial review
1. Not an amount determination, but method for obtaining amounts (don’t want to have
federal review for every claim) BUT review for method is permitted
iii. Here, the presumption for allowing judicial review hasn’t been adequately overcome
iv. Rule: Congress ordinarily intends that there be judicial review, and a contrary intent must be
expressed with “clear and convincing evidence of an intent to withhold” judicial review
1. Mere failure to provide specially by statute for judicial review is no evidence of
intent to withhold. Heavy burden on agencies to prove that Congress did not mean
to prohibit judicial review
v. So goes back to “clear and convincing evidence from “fairly discernible’??
g. Thunder Basin Coal v. Reich: Non-unionized mine workforce was being represented by two
employees without the miners’ knowledge (Dept. of Labor required posting of representation)
i. Owner sued in district court to enjoin regulation enforcement (pre-enforcement review)
1. Challenged statute not on its face, but as it applied to him
ii. Federal Mine Safety Act required Commission to review challenges to enforcement, THEN
reviewed by court of appeals (allowed pre-enforcement review in district court in two
circumstances, neither of which were present there)
iii. Holding: Blackmun: Statute’s comprehensive scheme of enforcement and administrative
review IMPLICITLY PRECLUDES a pre-enforcement challenge
1. Because they had explicitly provided for review in separate agency, implies
preclusion of review in Article III courts – depends on the circumstances
2. Could only get review by not complying with regulation, then forcing agency to
begin enforcement proceedings (pay penalty only after Commission, then Court of
Appeals decision)
iv. Notes: Banzhaf Rule: If ruling of agencies are to be appealed and reviewed by another
agency, then review by Article III courts is precluded
h. Free Enterprise Fund v. Public Co. Accounting: Act stated that PCAOB rules and orders were
reviewable by the SEC then by Court of Appeals
i. Rule: Provisions for agency review do not restrict judicial review unless the ‘statutory
scheme’ displays a ‘fairly discernible’ intent to limit jurisdiction, and the claims at issue are
‘of the type congress intended to be reviewed within the statutory structure’
ii. Holding: REVIEWABLE- No way for plaintiff’s to pursue constitutional claims in the
agency- didn’t turn on fact-bound inquiries within the SEC’s special competence
iii. Notes: Free Enterprise is different than Thunder because of facial/as applied distinction
1. Can an agency rule on a constitutional issue? Depends on if its facial or as-applied
challenge – Can challenge the method or the process used by the agency, but
agency can maybe review the constitutionality of one specific instance
2. Agency can’t decide whether the statute that created them is constitutional
3. Can’t act on a facial challenge striking down its own statute – attack on the structure
of the agency themselves
III.
Express Prelusion
a. Express Preclusion: Statute explicitly says that this issue is not reviewable
i. Statute says no decision shall be reviewed by any court of law bla bla bla
ii. But to what extent can congress pass a statute to prohibit review of constitutional issues?
b. Strong judicial hostility to being told they can’t review things (can encourage the court to shy
away from finding express preclusion if you make them want to hear the case)
i. Presumption of judicial review is strongest when there is a constitutional challenge – need
interpretation of a statute that gets you around those
ii. BUT just because you raise a constitutional claim does NOT mean court gets to hear it, but
when language cuts off review of a serious constitutional challenge- needs very clear
statement of congressional intent
c. McNary v. Haitian Refugee Center: Haitian Refugee Center challenged INS practice
implementing amnesty program fro certain alien farmworkers created by the Act
i. Agency said it was unreviewable- §210 said no review “of a determination respecting an
application” referred to prohibiting direct review of denials of amnesty status, like here
1. Allowing individual claims wouldn’t allow a judge to see unconstitutional pattern of
all claims – also people would have to surrender for deportation to receive judicial
review – seems unfair
ii. Holding: Stevens: REVIEWABLE. Section §210(e) of the act prohibited review of an
individual denial not to challenge of unconstitutional practices for application processing
d. VETERANS BENEFITS: Before 1970, no judicial review of veterans benefit determinations
allowed. DC circuit interpreted prohibition “concerning a claim for benefits” to not apply to
reviewing agency action terminating benefits
1. SO Congress enacted §211(a) provision prohibiting “jurisdiction to review any such
decision by an action in the nature of mandamus or otherwise”
ii. Johnson v. Robison: Challenged 1A and 5A rights in denying benefits
1. Holding: Brennan: Claim didn’t arise under interpretation of the statute, but in the
ability of Congress to legislate the Act itself - REVIEWABLE
a. SO: §211(a) doesn’t preclude review of claims that VA procedures
violated DP or that VA regulations exceeded statutory authority
2. Rule: Prohibition of review of administration of the statute by the VA wasn’t under
review, but the challenge was to Congress’ ability to create a statutory class entitled
to benefits which excluded one eligible group
iii. Traynor v. Turnage: VA promulgated rule defining “primary alcoholism” as “willful
misconduct” making people ineligible to use aid under GI bill
1. Holding: White: Text and legislative history of §211(a) provide no clear and
convincing evidence of any congressional intent to preclude a suit claiming that
§504 of Rehabilitation Act invalidates previous Act - REVIEWABLE
e. HABEAS CASES: 28 USC §2241: Jurisdiction on all federal courts to hear petitions for write of
habeas corpus- in 1962 changed review of deportation orders from the district court to the court of
appeals (things changed after 9/11)
i. INS v. St. CYR: St. Cyr pleaded guilty to criminal offense, AG’s discretion to waive
deportation withdrawn by two acts constraining judicial review of deportation acts
1. Holding: Stevens: Strong presumption in favor of judicial review, need a clear
statement of congressional intent to repeal HC jurisdiction- REVIEWABLE
2. Rule: Preclusion of review of purely legal question raises Constitutional Questions
under the Suspension Clause: Article I, § 9: “The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”
3. Scalia (dissent): No ambiguity of congressional intent to preclude judicial review
under the IIRIRA and AEDPA
ii. Hamdan v. Rumsfeld: Rasul v. Bush found that HC was available and due process applied to
non-US citizens being detained in Guantanamo
1. Detainee Treatment Act – “No court shall have jurisdiction to hear application for
HC by Guitmo detainees, except for limited review given to exclusive jurisdiction of
DC circuit for those claims pending on or after date of enactment of Act”
2. Holding: Stevens: Government’s belief that DTA had immediate effect of repealing
federal jurisdiction over future and past HC actions is WRONG
a. REVIEWABLE - Statutory interpretation doesn’t make Subsection (1)
cases included into type to which restrictions were intended to apply
Topic 9: Reviewability (Committed to Agency Discretion by Law)
I. Scope of Review of Administrative Action: Present Day Framework
a. Difference between APA §701(2) committed to agency review, and §707 review an abuse of
discretion (“except to the extent that…” is under 701)
i. As long as decision falls within the statute’s zone of discretion, then not overturned because
falls within §701(2), but if beyond the zone, then is an abuse of discretion under §707
b. Overton Park v. Volpe: City park near Memphis, private citizens said Sec. of Transportation
violated Federal-Aid Highway Act and by proposing to build a highway through the park
1. Statue said that he “may approve if no feasible and prudent alternative”
ii. Holding: Marshall: REVIEWABLE. Doesn’t fall under “committed to agency discretion”
exception, no clear and convincing evidence Congress wanted to preclude review
1. §701(a)(1) applies when Congress expressed an intent to prohibit judicial review,
(a)(2) applies when statutes are so broad there is no law to apply
iii. Rule: If there is a legalistic standard for the court to use in reviewing the decision, then it is
not committed to agency discretion by law, and court can review it
1. No need for statute unless Secretary has to find that alternatives “present unique
problems” – so there is law to apply
2. No indication that Congress didn’t want judicial review and no legislative intent to
restrict access to judicial review
iv. Secretary’s decision is entitled to a “presumption of regularity”
v. (1) Step 1: Decide whether Secretary acted within the scope of his statutory authority.
1. Congress only set out a small range of choices – could the Sec have reasonably
believed there were no other choices?
vi. (2) Step 2: Decide whether the Secretary’s choice was “A&C, abuse of discretion.”
1. Was decision based on all relevant factors, was there a clear error of judgment?
2. No statement of why he didn’t think design changes could be made, no factual
basis for finding of attempt to preserve public lands
vii. (3) Step 3: Decide whether Secretary’s action followed necessary procedural requirements.
1. Failure of Secretary to make formal findings and state his reasons for allowing
highway to be built through the park
2. BUT absence of findings doesn’t require case be remanded- no requirement of
formal findings
viii. Notes: Potential Standards of Review
1. Substantial Evidence- Used when agency action is taken pursuant to rulemaking
provision of APA, or based on public adjudicatory hearing
a. Not applicable here because not rulemaking, hearing
2. De Novo- Authorized if (1) action is adjudicatory in nature and agency fact-finding
procedures were inadequate, (2) independent judicial fact-finding when issues that
were not before the agency are raised in a proceeding to enforce non-adjudicatory
agency action (this one)
a. Informal rulemaking here
c. Heckler v. Chaney: Challenge by death row prisoners to regulate execution drugs
i. FDA said its jurisdiction in that area unclear, not able to interfere with state criminal justice
practice, no danger to public health from no regulation, so declined rulemaking petition
ii. Holding: Rehnquist: UNREVIEWABLE. Agency’s decision not to prosecute or enforce is
within its discretion, decided based on a complicated balance of factors within its area of
expertise (agency sets its own priorities)
1. When an agency doesn’t act, not infringing upon individual’s liberty or property
rights which court normally is called on to protect
2. This falls within the special province of the executive not reviewable by the courtsit’s their responsibility to “take care that the laws be faithfully executed”
iii. Rule: Review isn’t permissible if the statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of discretion
1. “Prosecutorial discretion” includes what are the chances of winning, does this fit
within our agency guidelines, etc. - presumption against reviewability, BUT this
presumption is rebuttable agency violated established guidelines
iv. Breannan (concurring): Court properly decides that non-enforcement actions are reviewable
where (1) agency wrongly claims that it has no statutory jurisdiction to reach certain conduct,
(2) agency engages in a pattern of non-enforcement of clear statutory language, (3) agency
has refused to enforce a regulation lawfully promulgated and still in effect, or (4) the nonenforcement decision violates constitutional rights
1. Worried about intrusion into Article II function- ensure that prosecutions are
carried out – “take care that the laws are faithfully executed”
v. Marshall (concurring): Judicial review is not more important when agency acts against
members of the regulated community than when it refuses to act for regulated beneficiaries
1. Can review agency’s decisions not to enforce just like other actions, but subject to
the same abuse of discretion standards
vi. Notes: APA §551(13) Includes agency action as “a failure to act”
d. Farmworker Justice v. Brock: Farmworker sought review of a denial for rulemaking petition.
i. Holding: REVIEWABLE. Fewer petitions for rulemaking, but prosecutors have thousands of
petitions to prosecute – need justify failure to rule-make under APA if petitioned
ii. Rule: Heckler does not apply to petitions for rulemaking – non-reviewability supported by
the fact that agencies should decide how to use their own resources, and this is not a case of
state’s coercive power being used against a citizen’s liberty or property
1. Differences from Heckler. (1) Doesn’t recognize Heckler Court’s identification of
executive discretion (2) Moved toward Marshall’s concurring position in HecklerDidn’t extend presumption of un-reviewability (3) In Heckler, was a decision not to
rule-make,
2. Prosecutors frequently decide not to prosecute, fact-rich decisions, but decisions
not to rule-make are less frequent, turn on scope of agency’s authority
3. Even if reviewable, very high deference given to agency
iii. Deference is so broad that the process is similar to non-reviewability
e. Lincoln v. Vigil: Indian Health Service phased out a program, by not allocating $ to it
i. Holding: UNREVIEWABLE. When a lump sum appropriation is challenged, unreviewable
because whole purpose of a lump sum is to give agency discretion on how to spend
1. Should have had a congressional earmark, then wouldn’t be discretionary –
congress is always free to restrict agency discretion
ii. Rule: Traditionally treated as committed to agency discretion by law: (1) Decisions not to
take enforcement action, (2) refusals to grant reconsideration of an action because of a
material error, (3) decisions to terminate an employee in the interests of national security
AND (4) decisions about allocating funds from a lump-sum appropriation
f. Webster v. Doe: (1988) CIA employee told employer he was gay, told he was a threat to national
security, Secretary dismissed him under §102(c)
i. §102(c) gives Secretary discretion to terminate employment of anyone deemed to be a threat
to national security, so the statute is very discretion-heavy with significant deference to
Director’s determination of interests of the United States
ii. Holding: §701(a)(2) precludes judicial review of discharge decisions because there is no
standard for the court to apply- statute is too broad
1. Non-constitutional claim: Committed to agency discretion
2. Constitutional claim: NOT committed to agency discretion- would present serous
constitutional issues if court couldn’t review – constitution provides the law to
apply under Overton Park,
iii. No clear congressional intent to preclude review of constitutional claims, and the heightened
requirement from the constitutional issues arising form denying a litigant a forum for
constitutional claims was not met here
1. Discovery limitations could preserve national security questions
iv. O’Connor: Agrees in part, but Congress can close lower courts to constitutional claims
sometimes, but thinks that it was precluded here
v. Scalia (dissenting): Maybe should include common law and prudential concerns under
701(a)’s “law to apply,” but court doesn’t do that
1. There is a sufficient standard to apply to review it- can’t terminate out of personal
vindictiveness
g. Banzhaf’s Constitutional Questions: If arguing something committed to agency discretion by
law, try to reframe it as a constitutional issue, and then get in under “law to apply” under second
prong of Webster
i. Scalia in Webster said no serious constitutional questions are posed by denying judicial
review of constitutional claims
ii. Courts try to construe statutes to not raise constitutional claims – want to leave some avenue
for judicial review of constitutional questions (difficult for Gitmo detainee cases)
1. Article III, §1 – judicial power vested in SC and in such inferior courts as Congress
may establish
2. Banzaf: Congress can take jurisdiction away from certain courts, but the issues
must be able to go up to the SCOTUS
iii. Traditional View: Congress should not use its power to withdraw jurisdiction – but power
does exist as part of constitutional system of checks and balances
1. Otherwise court could hold everything legislature does unconstitutional, so
congress can decide that courts don’t get to review some cases
a. Maybe legislative acquiescence legitimates judicial review in a
democracy – congress hasn’t tested the courts on it
2. But SCOTUS has never held that congress can foreclose all judicial review of a
constitutional claim – Plenary power
iv. Essential Function Argument: Uses constitutional history, structure and purpose to insist
that Congress cannot withdraw jurisdiction when the result would be to vitiate the essential
functions of the federal judiciary
1. Was first discussed about SCOTUS appellate jurisdiction, but then what is the
“essential function” of the judiciary?
2. Maybe if congress’ essential function is to follow the popular will, maybe the
court’s essential function is to protect the individual?
v. Independent Unconstitutionality Argument: Finds limits on Congress’ jurisdictionwithdrawing power in constitutional provisions outside of Article III
1. Can’t limit through a restriction that violates constitutional right (“no power to hear
cases brought by minorities”)
2. Equal protection clause prevents or due process prevent congress from withdrawing
jurisdiction over certain kinds of cases
3. If agency’s determination is later used for criminal proceeding, need some judicial
review of agency’s decision (Crowell v. Benson)
4. But what about if person is harmed by denial of something that isn’t a liberty or
property interest – so it’s unlawful, but not unconstitutional?
Topic 10: Control over Informal Decision-Making & Discretion
I. Banzhaf Lecture: Davis (Police Discretion, Judicial Discretion” books)
a. His views on “committed to agency discretion by law” especially with police/prosecutors
i. Discretion is necessary for justice, but there is significant unnecessary discretion – other
judicial systems don’t have as much and do ok
b. “Need a new jurisprudence that covers all of justice, not just the easy half”
i. No discretion in criminal statues – but in practice, even though not set forth in the law, police
exercised significant discretion
ii. Police frequently decline to prosecute if storeowner asked them to, or if they paid them back,
or if too young, etc. arrest prostitutes but not men, etc.
iii. Police’s Strict Enforcement Day– show that police can’t enforce all infractions – too many
statutes with so many crimes it’s assumed that police will exercise discretion
c. Powers: Discretionary power to prosecute is the most important
i. Negative power to withhold prosecution is even greater – less protected from abuse because
no occasion to review
d. Alternatives: German system: If prosecutor has a suspect, and fact and law seems clear but
declines to prosecute, has to fill out a detailed form describing why he’s declining to prosecute
i. That statement can be reviewed by the trial judge, and can be ordered to prosecute (made
available to injured party)
e. Remedy: Reexamine the amounts of discretion, and where it’s too much, cut it back
i. Make decisions somehow reviewable, and with remaining discretion, better controlled and
canalized/channeled/limited
ii. Use the common law technique to develop limits on discretion: Any time that an agency has
discretion, implied that they can control discretion by adopting rules
1. Can challenge agency’s refusal to not take prosecutorial action if there is a clear
statutory mandate to act
iii. Occupy Wall Street: New issues about long-term protesting
1. Davis would approach by recognizing discretion – if they stepped off the sidewalk
everyone would be arrested, camping without a permit
2. Decisions should be made by highest ranking officer there – write a brief report on
why he did what he did (sets precedent)
3. Then eventually rulemaking proceeding, inviting stakeholders
Topic 11: The Timing of Judicial Review
I. Exhaustion of Administrative Remedies
a. Whether agency has internal procedures for remedying errors that should be used before going to
court –inquiry depends on whether statute has exhaustion wording (APA §704)
b.
c.
d.
e.
f.
i. Still assuming you’re likely to win on the substantive argument, have standing
ii. Easiest way to duck the substantive issues if you can get out on procedural/timing issue, so
need to make court convinced that they have to hear the case
Test: Are there additional steps within the administrative process that he plaintiff seeking review
could take, if there are, generally (but not always) want to require plaintiff to take those additional
steps before seeking judicial review
Purpose: Don’t want litigant short-circuiting agency proceedings by taking judicial review
i. Allow agency to perform functions within its special competence, correct its own errors,
develop a record adequate for judicial review
ii. Harm of delaying review, character of issue – how gross is error, adequacy of procedure as a
remedy, what extent would review hurt or harm parties, interest of parties, value of agency
adjudication
Reasons: Constitutional separation of functions (Article II agencies have a different constitutional
function) want to keep separation between them
i. If congress has made it clear that it goes one way- have to defer to that
ii. Judicial economy- don’t want to bother courts if higher up chain in agency could remedy any
error BUT might not compel people to go through agency proceeding if the agency lacks
jurisdiction to hear the case, or if the action is unconstitutional as applied, etc
How to Decide: Step 1: Look at statute- if it’s reasonably clear that congress wants litigant to
work through the agency first, then courts will generally defer to the legislature
1. If not explicit (but implied), then court might have more leeway
ii. Step 2: (1) What is the harm to the litigant if we don’t allow him premature review, and if we
force him to go through the process? (2) What is the character of the harm? (3) Grossness or
obviousness of the issue (clear on its face – then exhaust would be futile) but if more
difficult, let agency work at it first
1. Irrevocable, incalculable? Or inconsequential?
iii. Step 3: Are there any administrative remedies available, and are they adequate?
iv. Step 4: (1) Extent to which the court would interfere with the administration of the agency,
(2) What are interests of the parties? (3) What is the value of the agency proceeding?
(Respected, expert, experienced agency and court wants the benefit, then let agency develop
record, but if they think less of them- court is less likely to require exhaustion)
Exceptions to Requiring Administrative Exhaustion:
i. If agency can’t give P adequate relief, (substantively or procedurally like prisoner case)
ii. Agency remedy would be futile (remedy is a sham from agency bad faith, bias)
iii. If undue agency delay which may make remedy inadequate (old people and Medicare)
iv. Agency action/inaction has a chilling affect on first amendment rights
1. Like the students at GW and drafting
v. Failure to exhaust remedies due to agency’s failure to inform litigant of his remedies
vi. Waiver – agency can waive requirement to exhaust remedies (work fair statute)
g. Myers v. Bethlehem Shipbuilding: NRLB began an unfair practice hearing against Bethlehem, D
got an injunction from district court against further administrative proceedings
i. Issue: Does P have to go through agency review to decide if agency has jurisdiction to hear
the case? P claims irreparable harm if required to do so
ii. Holding: Brandeis: Yes. NEED EXHAUSTION. Congress had the power to give authority
primarily to agency rather than judiciary- but in dismissing it, did resolve some of the claim
iii. Rule: A litigant can’t get around the statutory rule requiring exhaustion of administrative
remedies by claiming that the agency’s asserted claim is groundless
1. As long as agency procedures are fair, & have adequate review of those procedures,
then constitutional to require somebody to exhaust proceeding
2. Clearly a factual issue- need agency to develop a record
iv. Notes: How to get judicial review? Board would have to go to the courts and ask for an order
of enforcement- THEN person could challenge agency’s authority to order them
h. The Draft Cases: McKart: McKart free from draft as being sole son of father KIA, but when
mother died, he was drafted, didn’t report
i. Holding: NO EXHAUSTION. This is an issue of statutory interpretation of his exemption
status, don’t need the agency to resolve the question first – question of law, not fact
1. No reason to think many people will ignore agency and go right for the courts
because if they’re wrong, criminal prosecution & jail (20 year sentence)
ii. Rule: In a criminal procedure (when behind bars while “exhausting” agency procedure) don’t
require exhaustion unless interests underlying the exhaustion rule clearly outweigh the severe
burden imposed upon the registrant if he is denied judicial review
iii. Notes: If court precluded raising of constitutional claims here would be a big issue (using the
courts to force people into draft, so can’t make courts ignore potential constitutional issue
along with it)
i. The Draft Cases: McGee: Student, graduate program would “probably qualify” for exemption, but
he never requested ministerial student status, reclassified, didn’t appear before induction
i. Holding: NEED EXHAUSTION. Not an issue of administrative expertise or statutory
interpretation like McKart, but here the issue turned more on fact – agency is better
1. Actions jeopardized the interest in administrative fact gathering – which is
committed primarily to agency’s discretion with limited judicial review
ii. Test: Would allowing similarly situated registrants to bypass the administrative process
would impair the Selective Service’s ability to perform its functions?
iii. Notes: Allowing agency to hear the case means full agency review without opportunity for
judicial oversight – maybe SOL passed on judicial?
1. Decisions made by local draft boards- need uniformity in these cases, and would be
serious because some get drafted and die, and some don’t
j. McCarthy v. Madigan: Prisoner sought damages for unconstitutional denial of medical care
i. Holding: NO EXHAUSTION. (1) Damages sought weren’t available through prison
grievance process, (2) 8th amendment claim of deliberate indifference to medical needs
implicated prison – they were biased
1. Major purposes of exhaustion: (1) protect the authority of the agency, and (2)
promoting judicial efficiency. Let agency correct mistakes without being
undermined by frequent appeals (develop a full record)
ii. Rue: The Court should decline requiring administrative exhaustion if:
1. (1) Requiring administrative remedy may cause undue prejudice to subsequent
assertion of a court action (ex: unreasonable time frame)
2. (2) Inadequate Administrative Remedy - Doubt if agency is empowered to grant
effective relief (ex: like constitutionality or statutory interp.)
3. (3) Inadequate Administrative Remedy - Body is biased, predetermined issue.
k. Types of Constitutional Claims: (1) Constitutional as applied, (2) unconstitutional procedures, (3)
unconstitutional on its face
i. Usually require exhaustion in first two (agency has some competence and ability to decide
not to act, presumably can correct procedures if their procedures are unconstitutional
ii. BUT agency can’t hear the constitutional claim against the statue that authorizes the agency’s
existence in the first place (so court doesn’t always require exhaustion here)
l. APA Actions Reviewable:
i. APA §704: Agency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to judicial review.
m. Darby v. Cisneros: Darby sought review of an ALJ decision that he engaged in improper financial
practices – HUD regulations make ALJ’s decision final unless Secretary at his discretion reviews
the ALJ’s finding – after that party’s request
i. Holding: NO EXHAUSTION. Under APA and agency here, no requirement of exhaustion as
a prerequisite to judicial review unless required in the statutory rules
1. §704 shows that litigant seeking judicial review of a final agency action under APA
doesn’t have to exhaust administrative remedies unless exhaustion is expressly
required by the statute or the agency rules
ii. Rule: Federal courts can adopt other prudential limitations- but APA doesn’t have
requirements other than following statutory or agency procedures
II.
Primary Jurisdiction
a. Way to resolve procedural and substantive conflicts – doesn’t involve judicial review of an
administrative decision – so different than other doctrines – decision before they hear case
b. Arises When: Court has jurisdiction, but there is a significant overlap with an administrative
agency in jurisdiction or expertise that might have an impact on what court decides
i. Court might have independent ground for jurisdiction (can have PJ over one issue but not the
whole case)
ii. Jurisdiction that a court has in a case might be based on one statute, but a second statute
might give the agency jurisdiction
c. Other Kinds: Incidental Jurisdiction (decide incidental facts- are they married or not?) – but
rarely defer to agencies, because no real expertise in those determinations
i. Mutually Exclusive Jurisdiction- Court and agency don’t overlap (injured at work, workers
comp OR tort- depends on whether it arises out of his work - whether it was work related or
frolic and detour-depends who has J)
1. Both agencies and courts can hear tort/workers comp, so just depends who gets it
first decides – either can decide if it was at work or not, then send to court or agency
depending on the
ii. Exclusive Jurisdiction- Only the agency has jurisdiction (like court can’t fine a TV station
for a violation- exclusive jurisdiction is at FCC)
1. FCC’s decision can later be reviewed by a court, but not at first
2. Court dismisses for exclusive jurisdiction, not primary jurisdiction
iii. Superseding Jurisdiction- Used to have overlapping jurisdiction between court and agency,
but there is a subsequent statute that gives so much power to an agency, that by implication it
has taken away jurisdiction by the court (like shipping)
d. Function: Allows court to use experience, expertise, let someone go first
i. Doesn’t allocate power between court and agencies, only decides who goes first, not who has
last say
ii. But if it does delegate, court gives power to agency, then the agency would have power over
what evidence to allow, what factual record is
iii. Fact-specific policy: Need for uniform resolution of particular regulatory issue, Degree to
which proper resolution is likely to require agency’s specialized expertise, Risk that judicial
resolution would impede agency’s ability to accomplish regulatory mission
1. BUT primary jurisdiction can create delay and litigation expense if final agency
order is reviewed by the court eventually
e. Texas & Pacific v. Abilene Cotton: Shipper sued in federal ct for excessive railroad rate
i. Rule: Federal courts have discretionary power to decline to hear case until agency decided
1. Even though statute preserved common law remedy, court found that Abilene must
go through the Interstate Commerce Commission first
2. Want to ensure uniformity in rate setting (less concerned with expertise), don’t want
agency to impede agency to function
ii. Holding: White: Act can’t be held to destroy itself – Congress hadn’t thought it through
because if all judges could substitute opinion for what agency would do, then no uniformity
f. Far East Conf. v. US: Anti-trust action brought by DOJ, Federal Maritime Board approved
practice and then SC found that practices violated Shipping act and Sherman Act, 6 years later
i. Different statute gives court jurisdiction (Anti-Trust) than agency (federal maritime board)
1. Some administrative agencies can approve transactions that would otherwise be
illegal if they meet certain criteria of serving public interest, then immunized from
the Anti-Trust law – but complex economic balancing
ii. Holding: DEFERS. Court evokes primary jurisdiction – defers to Federal Maritime Board to
decide if appropriate to immunize these actions (judicial deference, agency advocacy)
1. Notes: Potential other issues at stake – DOJ wanted an injunction (equity), and DOJ
could have filed before board, so they were forum-shopping for best remedy?
III.
Finality
a. Whether the action complained of is complete and authoritative rather than part of a larger
decisional process that is still ongoing
b. FTC v. SOCAL: FTC had “reason to believe” SOCAL was using unfair oil trading practices
i. SOCAL filed a suit claiming that FTC only brought suit in response to political pressure
ii. Holding: Court said complaint should be dismissed – Commission’s issuing a complaint was
NOT A FINAL AGENCY ACTION under APA, so not judicially reviewable before agency
adjudication was finished
1. Immediate review wouldn’t have served efficiency or enforcement of the act
2. Allowing these proceedings would open the floodgates and seriously interfere with
agency proceeding
iii. Rule: Complaint was not a definitive statement – no legal force/practical effect upon
SOCAL’s business operations – no immediate judicial oversight needed
iv. If SOCAL had legit claim, would likely win before the agency – no need to involve court
v. Notes: If it’s committed to agency discretion by law (unchangeable) BUT if it’s not yet a
final agency decision, just a timing issue – later reviewable
c. Pepsi v. FTC: FTC sued Pepsi, Pepsi said bottlers were indispensible parties, FTC denied
i. Holding: ALLOWED APPEAL. Reviewing court is in a better position to assess the matter
when “all the cards have been played,” BUT immediate review of interlocutory agency action
can be granted in some, unusual circumstances
1. FTC’s denial of party joinder request was a final agency action but committed to
agency discretion who is an indispensible party
ii. Rule: Review is most likely when petitioner can make a credible claim that failure to grant
immediate review will result in irrevocable loss of right asserted (Alabama Power)
iii. Notes: Normally not an immediately appealable order- has to wait until proceeding is over –
this is just the Pepsi circuit- the Coke circuit went the other way
1. There is a strong presumption of reviewability – even if there is review for A and B,
and you’re doing it for C or D, doesn’t mean that you don’t get any review – don’t
get it in the court of appeals, might have to go to the district court
d. National Automatic Laundry v. Shultz: Requested letter that Laundromat employees not covered
by amendments to fair labor standards act, D. of L. took opposite position
i. Holding: Court found letter to be FINAL. Need for authoritative determination before a
ruling is final, but want ability for agency to reconsider
ii. Rule: When a general interpretative ruling is signed by the agency head, entitled to deference
as a matter of fact and law – shows finality and ripeness and is subject to judicial review
iii. Court must balance: (1) Suitability of issues for court review, (2) hardship to parties of
withholding review, (3) finality – what is the affect of the ruling
1. Decision is far more final, more formal, because everyone was a party to this, this
decisions made at the outset will be in all advantage- don’t have to look individually
2. Was reviewable- compare/contrast with Helco – this wasn’t hypothetical, was
particularized – mostly legal, not aided by further factual development
3. Accept the ruing of a board/commission/head of agency as presumptively final
a. Rebuttable if stated as tentative or subject to reconsideration
e. Helco Case: Blue poppyseeds – dye white poppyseeds blue
i. (1) Suitability of Issues for Court- Requires fact finding and some expertise
f.
g.
h.
i.
IV.
1. Agency knows what occurs during dying of seeds better than court (fact)
ii. (2) Hardship to Parties of Withholding Review – More speculative, no current dying business
iii. (3) Finality- Informal advisory opinion, hypothetical facts, if it provided judicial review of all
opinions, would dry up source of opinions
Franklin v. Mass: State tried to regain seat lost in the house because of reapportionment
i. SCOTUS found that it was not a final action – president isn’t an agency under AA so review
isn’t available when action becomes final by presidential decision
ii. Once president acts upon recommendation, no longer reviewable
Dalton v. Specter: Secretary of Defense actions wasn’t final since reports identifying closure of
military bases have no direct consequences
i. But if you were a base, and was improperly put for closure would have no review because
once president made decision was unreviewable, but not final until he did – catch 22.
Flue-Cured Tobacco v. EPA: Sued EPA alleging that a report was a final agency action and that
EPA violated Radon Act by not including industry representative in an advisory committee
i. Holding: Court of Appeals found NO FINAL AGENCY ACTION. Created no legal right,
only allowed research, statute denied EPA regulatory authority
ii. Rely on APA § 702 (review if adversely aggrieved) and §704 (limited to final agency)
iii. Agency action is final when: (1) Definitive statement of agency’s position, (2) Action has
direct and immediate legal force requiring immediate compliance, (3) Challenges to
agency’s actions involve legal issues fit for judicial resolving, (4) Immediate judicial review
would speed enforcement and promote judicial efficiency
Bennett v. Spear: (1) action must mark consummation of agency’s decision-making process (not
tentative or interlocutory), (2) action determines rights or obligations from which legal
consequences will flow
Ripeness
a. Whether the action is fit for judicial examination now, as opposed to waiting for some future event
b. Rule: Balance: (1) Fitness of issues for judicial consideration at the time review sought, (2)
Hardship to parties of withholding consideration {how much harm, how serious, who is harmed?
When will harm occur? If harm isn’t immediate- maybe ok to let it ripen, can litigant stake steps to
prevent harm (similar to exhaustion)}
c. Ripeness Doctrine Intended to: Reserve judicial machinery for imminent, not abstract problems
i. Issue should be sufficiently clarified before court is asked to decide them (judicial economy)
ii. Courts reluctant to decide fact-heavy, expert-needed cases unless necessary to do so
iii. Courts should refrain from deciding constitutional issues, and if they must, they should
decide it narrowly based on those specific (and well-developed) facts
d. Historical: In England, Courts would issue advisory opinions – changed in the US
i. We have a more distinct separation of powers and functions than England
ii. Congress in 1934 passed declaratory judgment act – controversy must be definite and
concrete and have an adverse legal interest (but court said some ripeness issues because
something that hasn’t happened yet)
e. Abbott Laboratories v. Gardner: Background of FDA implementing rule requiring disclosure of
generic name on bottle “every time” brand name was mentioned, then pharmaceuticals sued FDA
saying agency exceeded tis statutory authority
i. Holding: Harlan: IS RIPE. Regulation is a finalized agency decision whose impacts being
felt by suing party - and a purely legal question
ii. Court changed presumption that pre-enforcement review isn’t allowed
1. Agency action has a real impact on industry action – regulation by ‘raised
eyebrows’ (different than Flue Cured – even though it has impact, not reviewable)
iii. Rule: Judicial assessment of need for supervision, safeguards to protect interests and
enforcement problems
iv. Notes: No exhaustion required because no steps to exhaust- putting your license on the line
isn’t really a remedy (plus this issue may never become “riper” – might just acquiesce and
then it wouldn’t ever come more ripe)
1. If you lower barriers to ripeness, allow regulators to delay whatever regulations
would be
f. Lujan v. National Wildlife Federation: BLM’s opening public lands to private development
i. Holding: Scalia: NOT RIPE. Land withdrawal review program was an overall program that
didn’t qualify as a final agency action – program managed on a case by case basis
1. No standing because a general policy – didn’t allege individualized harm
2. Didn’t have to follow SCRAP because relying on Rule 56 SMJ instead of a potential
Rule 12(b) motion to dismiss in SCRAP
ii. Harm of delaying isn’t great and don’t want to set precedent of courts reviewing general
policy that might be modified later, doesn’t require anyone to do anything right now
iii. Rule: An agency’s regulation is not considered ripe for judicial review under APA until
scope of controversy has been reduced to manageable proportions and there is a concrete
action applying regulation to claimant’s situation that harms him
1. Exception if a substantive rule requires P to immediately adjust his conduct – action
then is ripe immediately whether or not APA explicit statutory review is provided
g. Reno v. Catholic: Immigrants rights groups challenged INS regulations that narrowly interpreted
Act rendering plaintiff classes ineligible for amnesty
i. Holding: O’Connor: IS RIPE. Most of the challenges weren’t ripe until an immigrant had
applied for benefits and been denied, but a suit challenging a benefit-conferring rule isn’t
necessarily unripe just because P hasn’t applied for the benefit.
1. Exception if it’s inevitable that challenged rule will be in P’s disadvantage (and
firm prediction that P will apply and be denied benefit) then might be justiciable
2. Different than Abbott - not a pre-enforcement suit against a duty-creating rule, even
if you succeed here, wouldn’t benefit until you’ve applied, and then might be denied
for other reasons (but no incentive to apply – if you’re denied stakes too high
ii. Rule: Court allows pre-enforcement review of duty-creating rule, but not benefit-creating
rule (squares with Lujan because explicit statutory language can cure ripeness issue)
iii. Notes: Sometimes congress imposes strict statutory time limits to seek judicial review, and
unexcused failure to obtain pre-enforcement review precludes later challenges, but excusable
if challenge isn’t ripe until past statutory period
h. Eagle-Picher: 90 day review period for reviewing
1. Want to encourage certainty and predictability – don’t want too long before it goes
into effect before it’s been implemented for too long
ii. Rule: If there is any doubt of ripeness of a claim, petitioners must bring the challenge in a
timely fashion or risk being barred – courts aren’t suited to guessing what should have
happened in the past (don’t want retrospective ripeness analysis)
1. Constitutional – Court is very reluctant to save a late petitioner from the strict
timeliness requirement to make a retrospective ripeness determination UNLESS
events occur after the statutory period that creates a challenge that didn’t previously
exist or if a claim is indisputably not ripe until agency takes further action
i. National Park v. Interior: Issue over whether contracts to run concessions in national parks fall
under Contracts Disputes Act
i. Act has certain advantages for contractor, but DOI issued in its notice and comment period
that concession contract is not defined by Contract Disputes Act
1. SCOTUS reversed – NOT MOOT, but NOT RIPE
2. Harm isn’t serious – should await a concrete dispute about a particular concession
contract
ii. Thomas: Task of applying CDA rests with agency contracting officers, section for notice
doesn’t command anyone to do/not do anything – no legal rights
iii. Determining whether action is ripe for judicial review depends on: (1) fitness of the issues for
judicial review, (2) hardship to parties of withholding court consideration
iv. Fitness: Is a “final agency action” and is “purely legal”
1. But further factual development would help deal with legal issues
v. Hardship: No hardship because impact of regulation wasn’t felt immediately and no
irremediable adverse consequences flow from requiring a later challenge
vi. Stevens (concurring): Found it RIPE- it’s as fit for judicial decision as it will ever be
vii. Breyer (dissenting): Petitioners alleged sufficient concrete monetary harm in the form of
increased bidding costs to allow both standing and ripeness
V.
Reprise
a. Ticor Title Insurance v. FTC: (DC Court of Appeals)
i. Facts: FTC claimed Ticor illegally restrained competition by fixing prices for tile search and
examination services
ii. Edwards: Would affirm district court on prudential ground of exhaustion - no exhaustion
exception is applicable because commission’s exercise of enforcement powers isn’t clearly
unconstitutional and only irreparable harm is from cost
1. Court’s interest in avoiding premature judicial involvement is heightened if P raises
a constitutional challenge to agency action
2. Exhaustion: Looks at position of party seeking review – is he trying to shortcut the
administrative process?
a. Exceptions: (1) Agency’s assertion of jurisdiction violates clear right of
petitioner by disregarding specific statutory, regulatory or constitutional
directive, (2) postponement of judicial review will cause P irreparable
injury (not just money)
3. Ripeness: Look at relationship between courts and agencies and whether agency
needs to do anything else before a court can review
iii. Williams: Challenged action wasn’t final– merges exhaustion and ripeness
1. Exhaustion: Discusses steps a litigant must take (judge-made prudential)
2. Ripeness: Depends on fitness of issues for judicial review (judge-made prudential)
3. Finality: Looks at the conclusiveness of agency activity, similar to balancing test for
interlocutory appeals (analysis is essential when court’s reviewing authority depends
on granting appeal of “final” agency action)
a. Final if thy impose an obligation, deny a right or fix a legal relationship
(not including cost of the proceeding, and not including agency position
that might be changed - SOCAL)
iv. Green: Affirm district court, courts shouldn’t interfere with agency proceedings, even though
it meets the exhaustion test, doesn’t pass ripeness test
1. Exhaustion: Want to permit an agency to formalize its policies, apply its expertise
and develop a factual record
a. Absence of harm doesn’t harm judicial review under exhaustion
2. Ripeness: Courts must determine if there is a purely legal question or if a need for
further factual development, whether agency would benefit from delay of review
until agency policy has been finalized
Topic 12: Differences Between Rulemaking & Adjudication
I. Procedures for Administrative Action: Differences Between Rulemaking & Adjudication
a. Constitution says little about the structure of the Federal government
i. Sometimes rulemaking can turn on scientific fact (like litigation), sometimes adjudication
sets general policy, sometimes APA adjudication is informal
ii. Banzhaf: Agencies can be determined to make decisions regardless of procedural protections,
BUT ill-informed decisions are worse- make sure you get opportunities
iii. Justice Douglas: Most provisions in bill of rights are procedural
b. Constitutional Protections: Set floor for protection (death penalty- most procedure)
i. 5th Amend and 14th Amend.: No person deprived of life, liberty or property without due
process of law (applies to federal and state agencies)
1. Here, due process of law refers to some kind of fact-finding proceeding (like a trial
or a hearing) but nature and requirements vary with circumstances
ii. Minimum: Entitled to NOTICE and OPPORTUNITY to participate in some extent
(presentation of evidence)
iii. Distinguish classes of government actions in which a person is entitled under constitution to
some kind of due process protection
c. Agency Procedures: Legislative functions (rulemaking), Judicial functions (adjudication), and
then Executive decisions (most of agency action- no procedures)
i. Scope of review/procedural protections change if it’s adjudicatory or rulemaking
d. APA: Definitions under §551:
1. Every agency final disposition is either a RULE or an ORDER
2. Very fact-dependent to decide if it’s a rule or an order (Bi-Metallic)
ii. (6) Order: the whole or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter other than rule making but
including licensing;
e. Adjudication: §551(7): Agency process for the formulation of an order;
i. Adjudicative-type facts: Relate to a specific group – type of facts which go to a jury, involved
if something bad happens to one or more parties
1. Ex: Might not be entitled to a hearing- disputing public interest of showing full
frontal nudity - legislative fact- doesn’t involve specific, broad and forward looking
2. Formal: Some proceedings are required to be “on the record” (ex: ratemaking)
3. Informal: Not required to be on the record (designated by APA) – only require
prompt notice of denials of requests and brief statement of grounds for denial
f. Rulemaking: §551(5): Agency process for formulating, amending, or repealing a rule;
i. Legislative-type facts: Don’t relate to any specific party- generalized, broad facts
1. Usually forward looking, what happens if we do X
2. Closer relationship between overt policy authority and case decision in
administrative adjudication
ii. §551: (4) 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
iii. Process: (1) A decision to carry out a statutory responsibility, (2) developing a proposal within
the agency with advice from outside, (3) notice and comment period. (4) final rule
iv. Scope: Rulemaking can be either formal or informal- Those provisions relating to formal
hearings are applicable to only certain proceedings (on the record or not?)
1. Licensing is mentioned as adjudication- but applications for licensing
II. Distinguishing Between Rulemaking & Adjudication: Under the Constitution/ Due Process
a. Londoner v. Denver: Landowners weren’t consulted about tax for paved roads, but petition said
they would have time to object before the passage of ordinance assessing their costs
i. Issue: Is the charter provision finding that a proper petition had been filed without notice to
the landowners a denial of due process under the 14th Amendment?
ii. Holding: SCOTUS says NO- legislature can authorize general road improvements without
notice & comment, BUT have to give a hearing before assessing costs – VIOLATED D.P.
b.
c.
d.
e.
1. No individual has a right to notice and hearing before the street is paved (legislative
function) BUT the assessment of costs is more particularized (adjudicative), and so
how much they benefited from the street was particularized
iii. Rule: Due process requires that at some stage of the proceeding before a tax becomes
irrevocably fixed taxpayer shall have a chance to be heard, have notice
1. Due process requires notice and opportunity to be heard
iv. Notes: If they set price/square foot maybe not entitled to hearing because that’s general and
set across the board, but in Londoner, it’s more adjudicative because based on what was the
value of the property which could be in dispute
Bi-metallic Investment v. State Board: Was the raising of taxes without the opportunity to be
heard a violation of a Denver property owner’s 14th amendment right to due process of law?
i. Holding: NO D.P. VIOLATION.
ii. Rule: The concept of due process does not apply to general lawmaking. Where a rule of
conduct applies to more than a few people, impracticable that everyone should have a direct
voice in its adoption, otherwise government couldn’t operate
1. If all proper state machinery used, then the state can pass a uniform tax without DP
violations
iii. Notes: High correlation between # parties impacted generality of the facts, and admin v. legis.
iv. Difference between Londoner and BiMetallic: Here, matter decided in which all are equally
concerned, but in Londoner, small group that were effected, and in each case on individual
grounds, so right to a hearing
1. Davis: Party in a tax or assessment has a right to be heard when decision based on
individual ground, but not when action is based on general grounds
v. Ex: (Douglas) Bolls v. Willingham: Statue designed to keep prices from growing during
wartime from scarcity – if rented by specific date, then rate charged at that date has to be
fixed, but if after, could change it
1. Holding: SCOTUS upheld procedure – no right to trial-type proceeding because
congress can delegate rulemaking to an agency (applies to more than a few peoplenature of general statute)
2. Banzhaf: Application of a specific factual circumstance- what is value of
apartment? But no trial – because SMJ- no material facts if affidavits
3. If entitled to trial-type adjudicative hearing, not before agency, can be remedied if
given de-novo review before the court
Minnesota State Board: How would requiring opportunity to be heard be defined and enforced?
Impossible – government would “grind to a halt” so focus on prudential concerns
i. Rule: Constitution does NOT grant members of the public a right to be heard by public
bodies making decisions of policy (right to speak doesn’t mean right to listen)
ii. Holding: In a republic that direct public participation in government policymaking is limited
– disagreement should be done at the polls
Coniston Corporation v. Village of Hoffman Estates: Coniston said that their DP was violated
when Village’s Board refused to approve a site plan for land development
i. Holding: Legislative decision, so no due process violation
ii. Rule: Legislature isn’t required to judicial-ize zoning – land use permitting decision is
legislative in nature – can range widely over political considerations – open-ended facts and
“ill-defined” here, judiciary has to make “more reasoned judgments” which isn’t needed here
City of East Lake: Apartment permit denied- Rules said changes in land use had to be approved y
majority vote in referendum
i. SCOTUS: Referendum isn’t a delegation of power – requirement that zoning has to change
with majority vote doesn’t violate constitution because property belongs to people anyway
ii. Smoking Referendum: passed in the state, tobacco company said if you get signatures,
referendum (5% of population) then automatically statue is held, and would be voted on in
next election
1. But different than City of East Lake, if group was small, they could veto
something that the state legislative body wanted
f. Pro-Eco v. Board of Commissioners: Petitioners protested ordinance that issued a moratorium on
building landfills
i. Holding: Not entitled to procedural rights. Board is an elected body that acted legislatively –
didn’t deny ProEco a permit, enacted generally applicable ordinance
ii. Rule: Governing bodies can enact generally applicable laws (legislate) without affording
affected parties notice and opportunity to be hard
iii. More procedure may be required if legislation affect only a small class of people
1. There was a public meeting, and Pro Eco attended
iv. Notes: Prospective, general zoning ordinance, impacted class is large and open, then
rulemaking and no adjudicative facts, so no DP requirements
1. But adjudication pretending to be legislation- only one person wants a landfill, and
applies a general rule that applies to only one person (ProEco)
g. Decatur Liquors v. District of Columbia: Liquor license owner sued DC for an amendment to the
liquor code declaring a moratorium on single unit sales
i. DC circuit court held that DC didn’t violate it – made a general moratorium on 73 stores in
Ward 4 (none of other wards)
ii. Holding: Individualized hearings would be impractical and unnecessary – maybe issue if
there was a dispute over whether store was included in the zone, but this moratorium
achieved the legislative goal – not individualized – no DP violation
1. No adjudicative issues- just link between sales and legislative goal, which is a
legislative policy decision – whether there is a problem with drunks is a public
policy issue
h. Wong Yang v. McGrath: Chinese man arrested for overstaying shore leave as member of a
shipping crew – administrative hearing- inspector recommended deportation
i. Holding: SCOTUS found that APA applied to deportation hearings- adjudications have
serious impact on private rights of individuals
1. Adjudicative proceeding – involved one individual, specific facts
2. Worried there weren’t enough safeguards to prevent arbitrary decisions
ii. APA Goals: (1) Ensure greater uniformity of procedure, standardize administrative practice
among all agencies (originally McCarran-Summers bill), (2) Change embodying in one
person duties of prosecutor and judge (no comingling of functions)
1. APA doesn’t require complete separation of investigating and prosecuting
functions- but wouldn’t allow comingling of investigative and decision-making
functions in Wong case
iii. Rule: Aliens have due process rights in deportation hearings (but APA rarely cited in federal
due process cases now)
iv. After passage of the APA, said that whenever DP required a hearing, adjudication under the
APA would be required – but then Congress amended the APA after this to not require a
hearing
i.
**Maybe APA isn’t equipped for the new, complex issues agencies deal with?**
Workers Compensation v. Greenwich: Harbor Workers Compensation Act and Black Lung
Benefits Act, Dept. of Labor followed “true doubt” rule for claims
i. Issue: Whether “Burden of proof” under §556(d) (“except as otherwise provided by statute,
the proponent of a rule or order has the burden of proof.”) refers to the burden of going
forward (burden of establishing a prima facie claim) OR the burden of persuasion (burden of
establishing a preponderance of the evidence)
ii. Holding: Department can’t allocate burden of persuasion in a way that conflicts with APA
iii. “Burden of Proof” not defined in statute, so construe it from legislative history leading up to
1946 (which was burden of persuasion)
Topic 13: Rulemaking under the APA
I. Administrative Procedure Act Overview
a. Every agency’s “final disposition” is either a rule or an order
i. Rule: Whole or 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
ii. Order: Whole or a part of a final disposition whether affirmative, negative injunctive or
declaratory in form, of an agency in a matter other than rule making but including licensing
b. APA §553: Rulemaking
i. (a) Applies to everything except: Military or foreign affairs, matter relating to agency
management (loans, benefits, contracts)
ii. (b) General notice, FR publication unless persons affected have actual notice or its excepted
iii. (c) Agency has to give people a chance to comment – with or without opportunity for oral
presentation (commenting period)
c. Hierarchy: Constitution  Statutes by Congress  Regulations by Agencies  Interpretations
and guidance documents by Agencies  Advice letters/policy docs by Agencies
i. Constitution provides a floor, but not a ceiling (just establishes minimum rights)
d. Types of Rulemaking Procedures:
i. (1) No Procedure (Procedural Exceptions): No procedure required in certain circumstances
1. Agency’s statutory interpretation rules- not ordering anyone to do anything
2. General statements of agency policy
3. Rules regarding agency’s organization and practice (which offices report where)
4. When agency “for good cause” finds N&C are impracticable, unnecessary or
“contrary to the public interest”
5. Other: Military or foreign affairs, management and personnel, loans/K’s, etc.
ii. (2) Notice & Comment: Provides some ground between nothing and full trial (most common)
1. If agency wants to make a rule (or amend, modify rule) then publishes NPR in FR
– what it wants as a rule, plus statement of its basis (jurisdiction) and purpose (why
agency needs the rule)
2. Provides an opportunity for any interested party to present their views (factual or
legal or policy considerations)
3. INFORMAL RULEMAKING
iii. (3) Adjudicative Rulemaking: Must have adjudicative procedure (find facts) before they have
to promulgate the rule – required by statute to incorporate an evidentiary proceeding – more
rules have far reaching economic, industry consequences
1. Lobbyists have found it’s a good way to interfere and challenge it even if you
won’t win on the merits (paralysis by analysis)
2. FORMAL RULEMAKING
e. Procedures Used to Create Regulations
i. Process: Formulate agency priorities  ID regulatory plan (check with EO 12,866(4)) 
place on agenda  formulate draft analysis (submit to OIRA, revision if needed)  publish
Notice for Potential Rulemaking  consider public comments  change/or publish
1. Scalia: “Constant and accelerating flight away from individualized, adjudicatory
process to generalized disposition through rulemaking”
2. Not focused on one party like adjudication, maybe more efficient because doesn’t
have to re-look at similar facts
ii. Judges can rarely require procedural protections beyond those outlined in the APA, specific
statute’s requirements or agency’s own regulations
iii. If authorized by statute and adopted, regulations have legally binding effect on the gov’t
f. Formal v. Informal Rulemaking
i. Whether it’s formal or informal depends on whether rules are required by statute to be made
on the record after opportunity for an agency hearing – depends on organic statute under
which the agency is operating
1. Agencies try to avoid formal rulemaking- (1) abandon program, (2) develop
techniques to reach same regulatory goal without a hearing, or (3) promulgate
noncontroversial regulations through negotiation and compromise
ii. Informal: APA §553: Notice-and-comment rulemaking, most commonly used today
1.
iii. Formal: APA §§556 & 557: Formal rulemaking is on-the record process similar to a trial
1. Rarely used today, common when agency wanted formality to require testing of
agency assumptions through cross-examination,
g. US v. Florida Railway: Interstate Commerce Commission issued a regulation establishing
incentive rates to send empty freight cars back to owners
i. Rule: UPHELD agency’s procedure- just because the organic statute has the word “hearing”
in the Act, didn’t activate §553(c)’s requirements
1. In a rulemaking proceeding, and statute uses “hearing” presumption against it being
an adjudicatory type proceeding – but rebuttable
ii. SCOTUS has found that words with the same meaning as “on the record and after hearing”
can trigger provisions of §557/§557, but “after hearing” doesn’t meet this
1. “Hearing” in adjudicatory setting normally means one thing, but don’t want to
impose it unless congress really meant it- they didn’t use the full magic words
iii. Notes: Previous cases had required hearing for ratemaking, but not in individual
circumstances – “hearing” isn’t dispositive, but “on the record and after hearing” might be?
h. National Petroleum Refiners v. FTC (DC Cir.): Unless legislative history shows clear intent to
the contrary, courts should resolve uncertainty about the scope of agency’s rulemaking authority in
favor of finding a delegation of full measure of power to agency
i. Vermont Yankee v. NRDC: NRC issued Vermont Yankee a license to build a plant in Vermont (1
permit for construction, 1 permit for operation)
i. Facts: Rulemaking to decide the spent fuel issue – so wasn’t an issue in the adjudicatory
proceeding, rule said it was negligible so no longer in controversy
1. NRDC didn’t want to substitute procedures for adjudication of Vermont Yankee
for procedures for rulemaking for spent fuel permitting
ii. Issue: Was the NRC allowed to issue a rule on the case’s issue instead of using adjudication
procedures to determine the scope of environmental effects at a specific hearing?
iii. Holding: Yes. Courts can’t impose additional procedural requirements on an agency that
went beyond what was required constitutionally, under the APA, and the governing statute
iv. Rehnquist: APA establishes maximum procedural requirements Congress was willing to
have courts impose on agencies in conducting rulemaking
1. If agency is making a quasi-judicial determination where a small number of
people are impacted, sometimes additional procedures may be required to afford
aggrieved individuals due process (US v. Florida RR) SO Court remanded to Ct.
App. to determine if rulemaking procedures were adequate under APA
2. Don’t want unpredictable judicial review, shouldn’t need as much procedural
protection used in adjudicatory hearings for rulemaking
v. Rule: When due process clause is not implicated and an agency’s governing statue contains
no specific procedural mandates, the APA establishes the maximum procedural
requirements a reviewing court may impose on agencies
j. NRDC v. EPA (App. Ct. 9th Cir): Logging issue based on the bark and debris created by log
bundles on their way to sawmills (significant change in how agency was to enforce rule)
i. Holding: The final Rule didn’t afford interested parties the opportunity to comment on
whether Alaska’s proposed change in zone of deposit definition conformed to substantive
requirements of Alaskan law – needed to include whether change required issuing a
conditional permit or a denial of the whole permit
ii. Rule: The law doesn’t require that every alteration in a proposed rule be reissued for notice
and comment- draft and final versions don’t have to be identical, BUT a final rule which is
different must be a logical outgrowth of the proposed rule
1. Test: Whether interested parties could have reasonably anticipated the final
rulemaking from the draft – whether new N&C would give a new opportunity for
interested parties to offer comments that would make agency modify the rule
iii. Reasoning: Final rule doesn’t have to be identical to the draft, but should be a logical
outgrowth of it so the parties reasonably could have anticipated the outcome, but that wasn’t
the case here – surprised parties so no adequate opportunity to submit their comments – need
next round of N&C to update rule
k. US v. Nova Scotia Food (App. Ct. 2nd Cir): Food poisoning issues so FDA issued NPR for
smoked or salted fish. Nova Scotia responded – said they would destroy fish if heating it to that
level, and so recommend different processing requirements for that fish
i. Issue: Claimed FDA used undisclosed evidence in promulgating the regulation
ii. Holding: Regulation was invalid because of insufficient procedure, should have disclosed the
scientific basis for their determination
iii. Rule: If failure to notify interested persons of the scientific research upon which the agency
was relying actually prevented the presentation of relevant comment, agency may not be
found to have considered “all relevant factors”
iv. Reasoning: Agencies have discretion in formulating basis for the rule, but can’t just make it
up- have to show the scientific report they’re basing their decision on – and should have
acknowledged impact on ‘commercial feasibility’
1. Prof. Davis wants to include whatever factual information the agencies considered
as part of the record for judicial review
v. Notes: Sometimes the regulatee who wants to challenge has to go to court, or other times
(like here) wait until enforcement action brought, then can challenge regulation
l. American Radio Relay v. FCC (DC Cir 2008): FCC adopted rule approving instillation of devices
on power lines to transmit broadband internet access, but this interferes with HAM radios
1. Five studies of field tests were uncovered by FOIA request – FCC placed them on
the record after rule was promulgated
ii. Rule: Agency can’t just cherry-pick the parts of a scientific report that it wants to rely on agency must make the whole record available especially where undisclosed portions might
undercut agency’s ultimate decision
iii. Holding: No APA §553 requirement that agency disclose other information as part of the
N&C – plain text of statute says N&C before issuing a rule, then concise general statement of
basis and purpose of rule
iv. Notes: Courts upset when there isn’t adequate disclosure, when information is incomplete,
added late, etc. – undercuts meaningful N&C and procedural protections
1. How to reconcile Nova Scotia & American Radio Relay & - ammunition to go after
the agency after the fact- not always clear what agency should do in rulemaking
process
2. If you’re an agency, put as much as possible on the record, allow comment, and
“bullet proof the opinion” to not allow regulatory lawyers to delay
v. So were they required to have everything on the record or no?
m. Independent US Tanker v. Dole: Secretary of Transportation issued a payback rule determining
how federal subsidies for building tanker vessels could be paid back
i. Issue: Must an adequate concise general statement address how a regulation furthers goal of
statute under which its issued?
ii. Holding: Notice doesn’t need to be exhaustive, indicate, but the statement needed to indicate
major issues of policy raised in the proceeding, why agency chose what they did, why
alternatives were rejected
n.
o.
p.
q.
1. Needed more discussion of how rule meets statutory objective of keeping
American merchant marine fleet, why secretary established economic efficiency as
most important reasons for the rule (not in statute)
iii. Rule: The more complex the proceeding, the more explanation needed in the rule
iv. Notes: Maybe the court is reading requirements in, or recognizing that concise general
statement of basis & purpose is designed to be an elastic concept
US v. Dean (Court of Appeals 11th Cir):
i. Facts: Defendant traveled in interstate commerce and failing to register as a sex offender
(have to register wherever you are located)
ii. Issue: Was the SONRA retroactive rulemaking without notice and comment a valid
exception under §553(b)’s “good cause” exception?
iii. Reasoning: Good cause exception should be read narrowly but exception is an important
safety valve – allowed for temporary gas shortages
1. Circuits split as to whether there is an actual public safety risk in “delay”
2. AG had delayed issuing the rule 7 months already – but this doesn’t matter –
agencies had to consider the rule
iv. Holding: Good cause because agency had sole discretion in rulemaking- public safety
argument validated AG’s bypassing of notice and comment (don’t need emergency if delay
could cause real harm) – NO NOTICE & COMMENT NEEDED
v. (Concurring): AG failed to show good cause to avoid notice & comment under APA,
Congress could have decided on its own if it applies retroactively so Congress didn’t think
there was an emergency – but concurs because it was a harmless error – even with notice and
comment, SONARA would have been promulgated as it was
Utility Solid Waste v. EPA (DC Cir): Involved EPA cleanup of PCB spills – EPA had a rule with
stringent standards for spills, then 1998 rulemaking lessened the requirements because of mistake
i. Reasoning: The “good cause” exception isn’t an escape clause and is to be narrowly
construed – the change here was important and substantive so they should have been given
the opportunity to comment
1. If you justify “good cause” here, need: “Time pressures don’t permit N&C, delay is
serious, if mistake is minor and inconsequential, if delay would permit improper
financial manipulation, don’t publish if all impacted can be named and
served/notified, but don’t apply here”
ii. Holding: Agency has the inherent authority to correct minor mistakes (but more in
adjudication than rulemaking), but this wasn’t an emergency setting that allowed bypassing
of N&C- not a time when the goal of the regulation would be defeated by prior notice
GE v. EPA (App. Ct. DC Cir): EPA issued a guidance document on how to conduct the PCB risk
assessment to decide if they can use an alternative method for disposing of PCB waste
i. Rule: If a document expresses a change in substantive law or policy (not an interpretation)
which agency intends to make binding or administers with binding effect, can’t rely on
statutory exemption for policy statement but must use APA rulemaking procedures
ii. Holding: APA PROCEDURES NOT FOLLOWED. The BCK Risk Assessment Review
Guidance Document is a legislative rule because it imposes binding obligations on applicants
to conform applications to Guidance Document
1. Binding on its face- directed companies to follow two forms of risk assessment and
practical effect – required forms of risk assessment
iii. Rule: A rule is binding if agency intends it to be, or treats it as such (EPA does in this case),
and it is a legislative rule, not guidance document, if it imposes binding obligations.
Center for Auto Safety v. NHTSA: Under National Traffic and Motor Vehicle Safety Act,
manufacturer has to give recall and offer a free remedy if product has a safety related defect
1. Policy guidance said agency may be ok with letters showing low and high risk
areas for the recall, based on objective factors, issued letters but never sued
r.
II.
ii. Holding: This was a policy statement- NOT A RULE. Under Bennett v. Spear- policy
guidelines can’t be final agency action unless they are the consummation of the agency
decision-making process AND determine legal rights or consequences
1. Agency never codified regional recall practices in binding regulation
iii. Rule: If a policy guideline creates de facto compliance, but not legal compliance, it still
imposes no binding legal obligation or right, and so is not a final agency action requiring
APA rulemaking N&C before its promulgation.
iv. Reasoning: The policy guidelines don’t meet both parts of the Bennett test- don’t determine
legal rights, obligations or consequences (not a final agency action)
v. Notes: Company can always do a general recall – in Center for Auto Safety- either not require
you to do something you’re otherwise required to do, but in GE, you have to do the
calculation in one of two ways
1. Two cases used to show no simple line: effect must go beyond agency itself, not
just that agency will accept x and z, but that you must do it
Air Transport Association v. FAA: Challenge to FAA letter interpreting regulation setting
maximum flight time limitations– letter describing how “look back rest” is calculated
i. FAA published a notice in FR with intent to enforce existing regulations, trade association
challenged, said need N&C because the Letter was a substantive rule
ii. Holding: NO N&C NEEDED – letter is an interpretation of its own FAA regulation (exempt)
1. The interpretation was already “fairly encompassed” within existing regulation, the
letter doesn’t impose new rights or obligations, and it was the first gloss on the
statute’s interpretation, would need N&C if revising an existing interpretation tho
iii. Rule: Examine whether interpretation carries the force of law, or whether it spells out a duty
already encompassed within the regulation the interpretation references
Rulemaking Initiation & Development
a. Rulemaking either begins with (1) agency or, (2) public initiation, (3) or negotiated rulemaking
i. Step 1: Decide what issues warrant rulemaking. (Policy judgments, substantive mandate)
ii. Step 2: Develop concrete proposals. (Consult with others inside/outside agency)
1. Check with White House’s regulatory plans under E.O. 12866
iii. Staff Organization: (1) Team Model- (most common) team of representatives of all interests
in outcome of rulemaking process, (2) Hierarchical Model- single office is responsible for
all of rule except final determination of whether it’s consistent with statue, (3) Outside
Advisor Model- single office has primary responsibility but calls upon other offices for
advice as needed, (4) Adversarial Model- offices with different perspectives are forced to
reconcile before issuing rule (Team used most often)
1. EPA- convening a full working group isn’t needed for many rules
b. Professional Pilots v. FAA: No measure to distinguish safe/too old pilots so kept 60
i. Holding: Decision not to institute a rulemaking was based on merits of existing Rule –
FAA’s retention of rule was still rational (no data on safety of old pilots b/c blocked by rule)
1. Risk of finding out if they’re safe is greater than benefit that having them around
longer would provide – court found that the decision was reasonable under the
circumstances
ii. Rule: Agency refusals to initiate rulemaking are reviewable but lenient standard especially if
agency has chosen not to regulate for reasons ill suited to judicial resolution (budget/policy)
iii. Notes: Look at Farmworkers and Heckler v. Cheney
1. Could have looked at studies of lay people, probably same for pilots, but pilots
already have to go through 6 month tests, or allow it longer in non-passenger
flights where safety concern isn’t as great
c. Massachusetts v. EPA: SCOTUS reviewed EPA’s decision not to regulate greenhouse gases
i. Rule: Agency decisions not to rulemake are different than decisions not to prosecute – less
frequent, more legal as opposed to factual, subject to special formalities (including public
explanation) which non-prosecutorial decisions are not
ii. Holding: UPHELD decision not to regulate GHG. Decisions not to rulemake are subject to
judicial review- but deferential and extremely limited.
d. HBO v. FCC (DC App. Ct.): FCC had a three year N&C rulemaking proceeding adopting 4
amendments to rules governing programs that could be shown by paid services like HBO
i. Holding: Due process requires setting aside the Commission’s rules because the rule was
generated by compromise in ex parte communications – not at the agency’s discretion in
deciding what was in the public interest
ii. Rule: Communications received before issuance of a formal notice of rulemaking don’t need
to be published BUT if that information forms the basis for the agency action, then it must be
disclosed
iii. Dissent: Overton Park doesn’t require this – nothing in statute requires specific findings or
regulations limited to the full administrative record (narrow the holding)
e. C&W Fish v. Fox (DC App. Ct.): NOAA issued rule banning certain nets in mackerel fishing
i. Request for rulemaking had been repeatedly denied, no new evidence to support a policy
change, but new director reversed the decision and approved the ban
ii. Rule: Individual should be disqualified from rulemaking only when there has been a clear
and convincing showing that the Department member has an unalterably closed mind on
matters critical to the disposition of the proceeding
1. Discussion of policy or advocacy on a legal question isn’t sufficient to disqualify
an administrator – upholds his decision on the ban
iii. Holding: Factual basis for a rulemaking is so closely intertwined with policy judgments that
we would obliterate rulemaking if they equated a statement on an issue of legislative fact with
unconstitutional prejudgment
iv. Notes: You might intentionally appoint people to positions that have a specific bias, so can’t
say there is no predisposition even in independent agencies – having a strong opinion on
something isn’t enough to invalidate a proceeding, but a bias/financial/prior involvement
interest is different
Topic 14: Adjudication under the APA
I. Banzhaf’s Steps to Fighting a Case:
a. (1) Look at DP, then at the Organic Statute – they spell out what procedures agencies are required
to follow (courts can enforce, but not create more under Vermont Yankee)
b. (2) Then look at agency’s own procedures, then (at last resort) look at the APA
c. When is a “hearing” required to be a formal hearing?
i. (1) Statute uses the words “on the record;”
ii. (2) If Congress has spoken directly on the precise issue and said that there should be a
formal hearing on the record; OR
iii. (3) If the agency itself interprets that statute to require a formal hearing on the record
iv. Order from adjudication must include findings, conclusions, reasons for decision
II.
Adjudication under the APA
a. Section 555 details procedural requirements for both formal & informal proceedings
i. No guarantee of supplying counsel to indigents in agency proceedings
ii.
b. Formal Adjudication: Statute references APA §554, 556, 557 or states “on the record after
opportunity for agency hearing”
i. Then the agency is restricted to the record in making its determinations
1. Just like Rulemaking, if they use the exact words, but if less than that, maybe not
ii. Entitled to notice, discovery, intervention, settlement/ADR, at hearing, matters of fact and
law asserted, evidentiary hearing, heard by an agency member or ALJ
iii. Entitled to cross examination “as required for full disclosure of the facts,” sometimes get oral
testimony
iv. Still ranges from very detailed, formal hearings, to less formal-formal hearings
c. Informal Adjudication: §555- right to notice, right to appear, and can appear with counsel,
limited discovery, enforcement of subpoena, prompt explanation of denial, some prior warning or
opportunity to correct problems in licensing proceedings (and you don’t get an ALJ)
i. If hearings aren’t required to be “on the record” then those relevant formal adjudication APA
provisions don’t apply – just APA 555 (plus due process requirements) (Citizens Awareness)
ii. APA §555 has provisions applicable to all agency proceedings, but no real specific
proceedings for informal adjudication in particular
III. Formal Adjudication
a. Formal - Includes virtually all elements associated with a trial (listed in 556)
i. Seacoast – early approach that has since been discredited (said that “hearing” when used
in an adjudicative hearing ordinarily implies a formal hearing, we will presume that
“hearing” means a hearing on the record when used regarding an adjudicative
proceeding)
ii. Citizen’s Awareness – rulemaking could be used to require a scaled-back hearing
iii. Chevron – major shift of authority from the courts to the agencies; 2-part test
1. BEFORE CHEVRON – would have applied Seacoast and found that it meant a
formal hearing
2. DURING CASE – EPA had interpreted the statute to mean an informal
hearing; Court held that the EPA interpretation is reasonable
iv. Dominion – overrules Seacoast presumption and applies Chevron analysis; statute that
required “an opportunity for a public hearing”
b. Seacoast Anti-Pollution v. Costle: Public Service Company wanted permit to discharge heated
water into tributary of Gulf of Maine after being run through nuclear generating system
i. Don’t need exact “on the record” in statute to trigger APA – what type of hearing did
congress intend to provide?
1. Decision is factual, doesn’t set policy, rights of one applicant affected- more
adjudicatory than legislative (this statute only required a “public hearing”)
2. Disputed facts – presumption that a hearing is needed for adjudicative proceeding
ii. Rule: Unless a statute otherwise specifics, an adjudication hearing subject to judicial review
must be on the record
iii. Holding: Statute didn’t say that it doesn’t have to be on the record – no indication of contrary
congressional intent – so rebuttable presumption toward formal/on the record if the organic
statute calls for a “public hearing”
iv. Notes: Different than presumption for rulemaking (where presumption is not on the record
(South Florida/Vermont Yankee))
c. Citizens Awareness v. US (1st Circuit Court of Appeals): Atomic Energy Act requires a hearing
upon the request of any person whose interest may be affected, so NRC interpreted a portion of
statute to require a hearing on the record under the APA
i. Holding: The degree of formality that a hearing must afford does not necessarily turn on the
presence or absence of an explicit statutory directive
1. Absent an explicit directive, if the nature of the hearing intended is clear, that
intention governs
2. Seacoast is still good law – APA doesn’t require cross examination, only where
required for full and true disclosure of the facts
ii. The new “hearing” rules adopted by the NRC are consistent with the APA, so doesn’t matter
what kind of hearing the NRC is required to conduct for licensing
iii. Rule: There are only minimum hearing requirements under APA (5 USC 55(d): requires that
agency provide a hearing before a neutral decision maker and allow each party an opportunity
to present his case or defense by oral or documentary evidence, to submit rebuttal evidence,
and to conduct such cross examination as may be required for a full and true disclosure of the
facts”
1. Agency can repeal that their internal procedures required to those minimum required
under the APA (in this case repeal discovery provisions and limitation of crossexamination to where “necessary to ensure an adequate record for decision”)
2. APA doesn’t require specific discovery devices in formal adjudications
iv. Concurring: Formal/on the record hearings – must follow APA 554, 556, 557
1. APA leaves agencies with flexibility in tailoring on the record hearings procedures
2. The agency must give notice of legal authority and matters of fact and law asserted.
§ 554(b).
3. The oral evidentiary hearing must be presided over by an officer who can be
disqualified for bias. § 556(b).
4. Presiding officers cannot have ex parte communications. §§ 554(d), 557(d)(1).
5. Parties are entitled to be represented by attorneys. §555(b).
6. The proponent of an order has the burden of proof. §556(d).
7. A party is entitled to present oral or documentary evidence. §556(d).
8. A party is entitled “to conduct such cross-examination as may be required for a full
and true disclosure of the facts.” §556(d).
9. Orders can be issued only on consideration of the record of the hearing. §556(d).
10. The transcript of testimony and exhibits is the exclusive record for decision and
shall be made available to parties. §556(e).
11. The decision must include “findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law, or discretion presented on the
record.” §557(c)(3)(A).
d. Chevron v. NRDC: It was unclear if single factory was stationary source, or if both are single
stationary source – difference of interpretation of “stationary source” under CAA
i. Rule: A court may not substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency
1. Step 1: Has Congress “directly spoken to the precise issue” in question? If
Congress’ intent is clear- court and agency must defer to that
2. Step 2: If Congress hasn’t addressed the question at issue, and the statute is silent
or ambiguous on that issue, ask if the agency’s interpretation is based on a
permissible construction of the statute - interpretation upheld if it is reasonable
ii. Holding: EPA’s interpretation was reasonable – shift power from courts to agency to decide
what is a reasonable policy choice (found congress didn’t have an intent on bubble concept)
iii. Notes: Many courts extend Chevron deference to agency determinations about when on-therecord adjudication is required
1. Court has rejected that statutory requirement of a “hearing” triggered formal
rulemaking procedures (US v. Florida RR)
e. Dominion Energy v. Johnson: Involved a request for a discharge permit: EPA rejected application
for permit renewal – refused to grant evidentiary hearing on administrative review
i. Rule: APA’s procedures for formal administrative adjudications apply in every case of
adjudication required by statute to be determined on the record after opportunity for an
agency hearing
ii. Holding: Agency’s conclusion that evidentiary hearings are unnecessary and that Congress in
using phrase “opportunity for public hearing” didn’t mean to mandate evidentiary hearings
seems reasonable – entitled to Chevron deference
iii. Under Seacoast would have presumption that when “hearing” is used it means “evidentiary
hearing,” but applying Chevron, the agency’s interpretation is given great weight, so court
should uphold
1. Seacoast didn’t hold that Congress clearly intended the term “public hearing” in
§402 of the CWA to mean “evidentiary hearing”
2. Based its interpretation from the legislative history of the APA – so it was
ambiguous because could obviously find no explicit congressional intent
National Cable: A court’s prior judicial construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus leaves no room for agency discretion
i. If agency’s decision is going to deny liberty or property – then constitutional due process
might come in and require an evidentiary hearing
g. Armstrong v. CFTC (3rd Cir): Most adjudicatory hearings aren’t conducted by the agency –
conducted by ALJ’s, then the initial determination then goes to agency, who can adopt or not
adopt, then issue the final agency order
1. CFTC affirmed ALJ’s decision saying “ALJ reached a substantially correct result”
2. Want to ensure separation of functions under APA §554(d)
ii. Conclusory statements/statements that fail to identify what the agency decided are
inappropriate (Formal adjudication- looking at what §557 means)
iii. Holding: This violates §557(c) because it does not permit intelligent appellate review
1. Summary affirmance of all or part of an ALJ’s opinion must leave no guesswork
regarding what the agency has adopted
2. Also, CTFC and ALJ violated §557(c) by not addressing the requirements of the
statute for conviction
iv. Notes: If you agree with it, accept it all, or disagree with all, but if agency adopts most of it
spell out what they disagree with
f.
IV.
Administrative Notice
a. Rule of Convenience: Requirement that ALJ should take notice of adjudicative facts whenever
the ALJ at the hearing knows of information that will be useful in making the decision (looking at
whether it’s legislative or adjudicative facts in deciding when notice is appropriate)
i. Judicial notice is useful in a trial proceeding, more useful in administrative proceeding,
substantially more broad in administrative proceeding
b. Castillo v. INS: INS judge denied asylum, said mother was lying and none of the three had wellfounded fear of prosecution because of their political opinions
i. Petitioners were given no notice or opportunity to be heard whether notice should be taken or
whether political changes relaxed their fears of returning
ii. Don’t have juries, so not worried about usurping their functions, want agencies to develop
expertise and experience in certain areas, don’t need an expert to tell them things they
develop an understanding of (worried about boredom, unnecessary delay)
iii. Holding: Board should not have resolved the question of the effect of the change in
government on petitioners without giving them notice of its intent to do so and an opportunity
to show cause why notice should not be taken, or should have supplemented the record with
further evidence
1. The legislative fact of who was in power was debatable – should have had
opportunity or petitioners to rebut this
iv. Notes: Prof. Davis: Notice of legislative (general law and policy) facts may be taken more
liberally than notice of adjudicative (immediate party) facts
c. Envirocare v. NRC: Envirocare requested a hearing and to intervene to oppose the amendment for
radioactive waste received
i. Federal agencies sometimes allow people to intervene in an administrative proceeding even
though they wouldn’t have standing to challenge an agency’s final action
ii. Whether Envirocare could intervene turns on statutory interpretation – organic statute
required Commission to hold a “hearing on the request of any person whose interest may be
affected by the proceeding” – so how do you define “interest”?
1. Ambiguous so Chevron applies
2. Petitions for judicial review of denial for motion to intervene DENIED
iii. Possible to have standing for admin that is lower than standing requirement for courts,
because not limited by Art III
iv. Case: Statute is ambiguous: not clear to what extent congress in 1950s wanted to give
standing (especially since standing was restricted at that time)
v. Office of Communication of Church: First time associational standing was allowed
1. Issue: Based on Chevron, could the FCC limit the ability review licensing
discussions (such as the one at issue in OCCC)?
2. Took place when court encouraged public interest groups to intervene – but in
Envirocare, courts read standing more narrowly, began deferring to the
agency’s interpretation of the law on standing requirements
3. Distinguish Envirocare from OCCC: Interveners in Envirocare aren’t coming
in to protect the public interest, but are their to protect their own economic
interests (which the court stresses isn’t part of the statute)
V.
Ex Parte Communication & Procedures
a. Ex Parte Communication: Oral or written communications not on the public record with respect to
which reasonable prior notice to all parties is not given – prohibited under APA §557(d)
i. Ask whether the communications are between “interested parties” and “relevant to the
proceeding”
b. Morgan I (1936): Cases consolidated fixing the maximum rates to be charged by market agencies
for buying and selling livestock
1. Statute said “after a full hearing” secretary could fix rates, petitioners challenged
because their cases hadn’t been heard separately and the Secretary hadn’t personally
heard or considered oral arguments or made the decision
ii. Rule: The rule “the one who decides must hear” doesn’t mean the Secretary of the agency
has to preside over the hearing, read the whole record, but the person who is deciding has to
be familiar with the record
1. Rule doesn’t preclude administrative procedure in obtaining the aid of assistants in
the department. To the extent the statue permits it, can delegate to a subordinate.
c. Morgan II (1938): Gov’t formulated no issues or statements of its proposed findings – no
opportunity to examine findings prepared until they were served with the order (many ex parte
communications)
i. Rule: Right to a hearing embraces not only the right to present evidence but also reasonable
opportunity to know the claims of the opposing party and to meet them
1. Here, there was no specific complaint of government’s claims
ii. Issues: Did the ex parte communications invalidate the decision?
iii. Holding: NO. While inappropriate, the communications weren’t enough to vacate the
proceedings since they were short and were general for the most part.
1. Secretary didn’t listen to oral arguments, read briefs but that’s it, so the hearing
examiner’s report must be made a part of the record.
d. FTC v. Cement Institute: FTC alleged that the cement group engaged in unfair methods of
competition. One cement company thought Commission was prejudiced and biased against the
Portland cement industry – Commission refused to disqualify itself
i. Rule: Commission has the specialized knowledge that Congress wanted As long as the
decision-maker’s mind is not irrevocably made up, then not biased, so don’t need to
disqualify.
1. Cement industry had the chance to cross-examine and show trade practices that were
under attack which they thought were within the range of legally permissible
business activities – so would win on merits regardless of why the case brought
ii. Reasoning: If a normal judge has bias, then hears the case, then has to step down for bias, but
the ALJ’s are triers of fact, only this one place can hear the case
iii. Holding: No denial of DP to allow a judge to hear a case after he expressed viewpoint that a
certain conduct was prohibited. This belief, even if true, wouldn’t disqualify the Commission
from hearing the case – Commission properly refused to disqualify itself
e. Winthrow v. Larkin: Doctor who preformed abortions was investigated, said combination of
investigatory and adjudicatory roles on the Medical Examining Board violated Due Process
i. Due process requires a “fair trial” but there was no reason to suspect that board was
prejudiced by its investigation
1. Biased if: prosecutor has a pecuniary interest in the outcome, or if he has been the
target of personal abuse or criticism from the party before him
ii. Adjudicators are presumed to be honest (look at other protections in APA §554(d) that people
who investigate or prosecute can’t participate in adjudicating EXCEPT those in an agencyagencies have less presumed bias)
iii. Rule: The combination of investigative and adjudicatory functions doesn’t constitute a due
process violation, but it doesn’t preclude a court from determining from those specific
circumstances that the risk of unfairness is intolerably high
f. PATCO v. Federal Labor Relations: - Professional Air Traffic Controllers Organization called
members on strike in violation of statute forbidding federal employees to strike their employer
i. Statutory prohibition on ex-parte contacts under §557(d). DOJ gave evidence of improper
contact between labor leaders and member Applewhaite during PATCO case proceeding
1. (1) Meeting between Member Applewhaite and FLRA GC (Gordon)
2. (2) Lewis’ calls to Fraizer and Applewhaite
3. (3) Applewhaite’s dinner with Shanker
4. Requests for statuses are allowed, but no communication to or from an interested
person, not on the public record, relevant to the merits of the proceeding
ii. Holding: Do NOT need to vacate FLRA decision – none of communications had an effect on
final decision, no corrupt tampering, no party benefited from improper contact, no
deprivation of opportunity to refute arguments
1. Presumption of honesty for those serving as adjudicators – no demonstrated inability
to fairly decide the case – UPHELD FLRA order
2. Test: Was the agency’s decision-making process because of the improper ex parte
communications, irrevocably tainted to as t o make ultimate judgment of the agency
unfair to innocent party or to the public interest
3. Look at (1) gravity of the ex parte communication, (2) whether contacts may have
influenced agency’s ultimate decision, (3) whether party making improper contacts
benefited from agency’s ultimate decision, whether contents of communications
were unknown to opposing parties (so no opportunity to respond), (4) whether
vacation of agency decision and remand for new proceedings would be useful
iii. Remedies: Either disclose the previously withheld information, or make violating party
explain why case shouldn’t be dismissed against them
g. Pension v. LTV Corp: LTV reorganized pension arrangements without old liabilities
i. Holding: The determination was lawfully made by informal adjudication, minimal
requirements are set forth in APA §555- doesn’t include elements at issue – but failure to
provide them where Due Process Clause doesn’t require them, is not unlawful
ii. Rule: Vermont Yankee does apply to informal adjudication – courts can’t impose
greater procedural requirements than required under the APA
1. At most, Overton Park suggested that requirement that agency action not be
“A&C” imposes a general “procedural” requirement by mandating that an
agency take whatever steps it needs to provide an explanation that will enable
courts to evaluate the agency’s rationale at the time of the decision.
h. SEC v. Chenery:
i. Facts: Public Utility Holding Company Act tried to prevent pyramid structure form public
utility industries collapsing like in the Great Depression
1. Required notice and opportunity for hearing registered holding company to limit
operations of a part of a single integrated public utility system
i.
j.
ii. Test: Reviewing court must look at an agency’s judgment by the grounds invoked by the
agency. If the grounds are inadequate or improper, the court can’t affirm action by
substituting more adequate or proper basis
iii. Court needs to be able to identify “with such clarity as to be understandable” what basis the
agency is finding on, so the court can test it against that
1. Approved under the ground of Judicial Authority (didn’t create new rule)
2. On that basis the order COULD NOT stand – Commission didn’t rely on any
established principles of law or equity to justify their reorganization order
iv. Rule: Chenery I: SEC could only create a new principle of law through rulemaking, BUT in
Chenery II: Choice between making policy through rulemaking OR adjudication (ad hoc
litigation) lies in the informed discretion of the administrative agency
v. Holding: Just because the agency didn’t anticipate this problem, and issue a rule, doesn’t
mean that it can’t hear the case – should still deal with problems
1. Every case of first impression has a retroactive effect, whether the new principle is
announced by a court or by an administrative agency (unless it produces a result
contrary to a statutory design or legal and equitable principles)
2. Court’s review of an agency decision is the same whether the new principle or an
established one is used as the basis for the decision
3. Retroactive application may be unfair but not unconstitutional
4. Agencies should, as much as possible, proceed with rulemaking
5. Implication of Chenery is that yes, this choice is reviewable but it is extremely
limited
vi. Notes: JB: suppose court makes a decision for the wrong reason. The CA will apply
“harmless error” if the decision falls under a similar reason. Different for Admin agencies.
1. JB: Make sure to have as many reasons as possible to review-proof decision
2. Courts impose rules with retroactive impacts all the times in private law cases (eg.
Finding strict liability where there once wasn’t)
3. Courts however don’t have rulemaking so they have to operate retroactively.
Agencies, however, can act prospectively. Is it unfair when they act prospectively
instead of retroactively. Basis for part of the holding in this case
NRLB v. Bell: Bell refused to bargain with buyers of one of its facilities saying they were outside
the collective bargaining process, NRLB said they were allowed to unionize
i. Holding: Powell: NLRB can’t reinterpret Act to exclude managerial employees susceptible
to conflicts of interest if unionized
ii. Rule: Chenery II: An agency can reverse itself and announce new principles in an
adjudicative proceeding, so long as there is not significant reliance on the previous precedent.
iii. Board isn’t precluded from announcing new principles in an adjudicative proceeding- choice
between rulemaking and adjudication is first within the Board’s discretion
1. Adjudication is appropriate in this context – no broad rulemaking that could be used
to apply to all situations – very fact-specific factors
2. No fines or damages involved here – no issue from retroactive application
3. People impacted by adjudicatory decision are given full opportunity to be heard
4. Consider: Whether there is strong industry reliance on the existing policy
5. But need complete explanation of the fundamental change in policy because all of
Board’s decisions point to the opposite result
iv. Holding: (1) Need to remand allow Board apply legal standard to determine status of buyers,
(2) Board didn’t need to use rulemaking to find that buyers weren’t managerial employees
Bowen v. Georgetown University Hospital: Government reimburses health care providers for
costs in treating Medicare beneficiaries – Secretary of HHS can promulgate cost-reimbursement
regulation – can have retroactive corrective adjustments
i. Holding: Court allows Secretary authority to establish procedure for making adjustments to
regulation prescribing computation, but applies to case by case adjudication, not rulemaking
1. Presumption against retroactive adjudicative decisions unless expressly allowed by
statute – but no express authorization for retroactive rulemaking – Leg History says
prospective authority to set cost limits, not retrospective
ii. Scalia (concurring OR DISSENT?): Rules under APA have future effect, not past
1. Rule that has unreasonable secondary retroactivity may be A&C and invalid
2. Can’t look at Chenery II because that was adjudication and this is rulemaking
Topic 15: Scope of Review of Administrative Action
I. Standard of Review
a. Reviewing Cases: Almost all statutes delegate authority for agencies to decide cases, and also for
their decisions to be reviewed by a federal court
i. Scope = how much deference a court pays agency
ii. Sometimes reviewed “de novo,” if a constitutional issue, court replaces agency’s judgment,
but usually give discretion to the agency (assumes agency understands the subject matter best)
b. Why is Standard of review so complicated:
i. Prof’s Pierce/Davis: Difficult to come up with standards for scope of review
1. Different standards even for the same agency action
ii. Initially, lack of notion of scope of review. Courts would avoid making determinations on
scope of review by narrowly standing and broadly interpreting timing doctrines.
iii. Only scope of review to really come along clearly is the “substantial evidence” test. Once this
was completed, courts tried to come up with new standards of review
iv. Chevron messed everything up. Still trying to figure out how the decision impacts standards
of review that existed
v. Agencies sometimes act like juries, legislators, executive as well as a number of actions
where they overlap. As a result difficult to draw line for where scope of review is
c. Historical Scope of Review
i. APA exempts interpretive rules from going through a process
1. Courts generally give little deference (wide scope of review) for interpretive rules,
but if they are legislative rules (which normally need N&C), then given very narrow
scope of review – usually uphold them
2. Courts, when reviewing legislative in nature (substantive impact) historically have
given narrow scope of review, but not looking harder at them
3. Courts, when reviewing interpretive rules, changed even before Chevron, if it’s
technical, agencies have more expertise
4. Courts should honor agency’s awareness of what congress intended – close ties
between congress and agencies – so more reasonableness test instead of more
procedure-focused
ii. Hard Look Doctrine: A wider scope of review – because many courts have had a lot of
experience with the agencies, and are far more cynical of the agencies
iii. Reasonableness Test:
1. Reasonableness test – relevant evidence which a reasonable mind might find adequate
to support an adequate fact or conclusion – like the test a judge should apply in
deciding if case should go to a jury
2. Like on appeal- could reasonable people have found this? Can go back and change
iv. Rightness Test:
1. Court upholds agency decision even if they think it’s correct (legal issues)
2. Applies where agency statute requires adjudicative hearing on the record – applies
when agency does conduct adjudicative proceeding
3. Applies to findings of fact in an adjudicative proceeding where rulemaking requires
an adjudicative proceeding (but not always)
4. Not always required in situations where it’s not required to be on the record (like
airbag rulemaking case)
v. Substantial Evidence Test:
1. First Iteration: Agency decision with regard to a fact will be upheld – abandoned.
a. No scope of review by court: decision regarding a fact will be upheld
by a court (ie. court would always except agency fact-finding)
b. Scope of review is virtually null because of the total control over facts
2. Second Iteration: For every finding of fact, we look in the record for some evidence
in support of that fact. Provided that there is more than a scintilla of evidence in
support of that fact, we will sustain that finding of fact.
a. Under this standard, courts would uphold the finding of fact even if
there was other evidence that discredited the supporting evidence
3. Modern Iteration: Substantial evidence on the whole record
a. Universal Camera. Court looks at both sides. Doesn’t want to secondguess the agency’s finding of facts.
b. Applies to rulemaking, not informal adjudication (Overton Park)
d. Steps to Decide Proper Scope of Review
i. Step 1: Is it Rulemaking or Adjudication?
1. Rulemaking – Is it N&C? Is it adjudicative-like? Is there no proceeding?
2. Adjudicative – Is it formal? Is it informal?
3. Is it neither?
ii. Step 2: What is the Nature of the Issue?
1. Facts: adjudicative or legislative facts?
2. Findings: Is the finding on primary inferences or secondary inferences?
a. Primary/ basic inferences– how the credibility looked, what their
response to the testimony was
b. Secondary inferences – inferred from primary facts, make inferences to
something for which there are no direct facts
c. Should give deference to a court with regard to the basic or immediate
facts BUT more deference for derivative or secondary facts – agency
has a greater expertise in that area
3. Issue: Is it legal? Factual? A mixed question law/fact?
4. Interpretation: Did agency define statutory term in adjudicative proceeding
(eg. Chevron)? Was this determination jurisdictional?
e. Shaw Supermarket v. NRLB: Supermarket had a vote, voted against unionizing, but before vote
taken, bosses said they would retaliate against collective organizing
i. Previous NRLB cases held that employer’s bargaining from scratch statement didn’t amount
to threat of regressive bargaining – can’t find no violation in previous cases, and a violation
here – very similar facts
ii. Rule: An agency has a duty to explain its significant departure from its own prior precedent
so that a reviewing court can understand the basis for agency’s action and clearly judge the
consistency of the action with the agency’s mandate.
1. Only cases where “bargaining from scratch” comment was found to be a violation
was if it was accompanied by discriminatory treatment of labor organizers, which
didn’t occur here
iii. Don’t require agencies to “microscopically examine prior cases,” but here there was a clear
line of precedent which they disregarded
f. Universal Camera v. NRLB: Issue over whether an employee had been fired for testifying in
support of union’s position in NRLB proceeding or because he was a bad employee
i. NRLB’s organic statute said “facts if supported by evidence shall be conclusive”
ii. Court interpreted that to be “substantial evidence” – enough adequate to support a conclusion
1. Should still give Board’s decision deference – got to see witnesses, have a more
holistic view of the evidence
2. Board’s findings are entitled to respect, but they should be overturned when a record
before the Court of Appeals precludes the decision from being justified by the
witness’ credibility or informed judgment on the matters
3. If agency disagrees with the primary inferences, will give their findings somewhat
less weight because they weren’t there, and didn’t observe, BUT with regard to
secondary inferences, the agency’s finding will be given greater weight
iii. Holding: A court will defer to a federal agency’s findings of fact if supported by "substantial
evidence on the record considered as a whole."
iv. APA requires consideration of the whole record – reviewing court is not barred from setting
aside a Board decision when it can’t find that the evidence supporting the decision is
substantial, when viewed in light of the whole record, including the evidence opposed to the
Board’s decision
g. NRLB v. Hearst: Whether newspaper delivery boys are “employees” under NRLB Act
i. Look at the purpose of the Act (prevent interruption of commerce through strikes), what was
congressional intent for worker protection?
ii. Holding: NLRB's interpretation of the Act was not erroneous. When an administrative
agency engages in "specific application of a broad statutory term in a proceeding in which the
agency administering the statute must determine it initially, the reviewing court's function is
limited.”
1. Congress entrusted factual determinations of the Board- it’s not the court’s function
to substitute its own inferences of fact for the board’s when the latter have support in
the record
2. (1) Is it taken on a state-by-state basis? NO- federal uniformity
a. Congress obviously didn’t intend “patchwork”- telling agency that it
can’t be based upon a state by state basis
3. (2) As a matter of Court’s determination, can’t be based on common law standards
a. Don’t look as much at the technical, legal classification and look more
at the classification that would accomplish the legislative goals
iii. Rule: Board’s determination is to be accepted if it has “warrant in the record” and a
reasonable basis in law
II.
III.
Review of Interpretive Rules
a. Skidmore v. Swift: Employees were hired to answer alarms, but they rarely occurred
1. Whether time falls within or without the Act is a question of fact to be resolved by a
finding of the trial court
ii. Rule: Rulings and interpretations of the agencies aren’t controlling on the courts, but are a
body of experience to which courts can resort to for guidance. Weight of judgment depends
on the thoroughness of its consideration, validity of its reasoning, consistency with precedent,
and persuasive power
iii. Holding: It is the Court’s responsibility to decide if cases fall within or outside of the Act,
agency decisions are not conclusive and aren’t an interpretation of the Act which binds a
district court - but they are a response to more specialized experience and information
1. Step 1: Interpretive Rule or Legislative? Here it’s interpretive
2. Step 2: Scope of Review? Agency decision is not controlling, wide variation,
standard isn’t really helpful
Review of Informal Decision-Making
a. Since it’s informal, not really as developed a record as would otherwise have
b. Citizens to Preserve Overton Park v. Volpe: Statue said that the Secretary “may approve {the
road} if no feasible and prudent alternative”
i. Reasoning: Secretary’s post-hoc rationalizations regarding a decision to authorize
construction of a high way didn’t provide an adequate basis for judicial review under §706
ii. Marshall: §701 of APA provides that action of each authority of the government is subject to
judicial review except where there is a statutory prohibition on review
1. No indication that Congress didn’t want judicial review and no legislative intent to
restrict access to judicial review
a. No clear and convincing evidence to preclude review, looked at the
“no law to apply” test- if no basis for court to rely upon in reviewing
the decision, then it’s committed to agency discretion
iii. Standard of Review: §707 of APA determines Standard of Review: arbitrary, capricious,
abuse of discretion or otherwise not in accordance with the law, OR if the action failed to
meet statutory, procedural or constitutional requirements
1. Substantial Evidence- Used when agency action is taken pursuant to rulemaking
provision of APA, or based on public adjudicatory hearing
a. Not applicable here because not rulemaking, was adjudicative
2. De Novo- Authorized if (1) action is adjudicatory in nature and agency fact-finding
procedures were inadequate, (2) independent judicial fact-finding when issues that
were not before the agency are raised in a proceeding to enforce non-adjudicatory
agency action (this one)
iv. Secretary’s decision is entitled to a “presumption of regularity”
v. Notes: Can’t use substantial evidence, because no formal findings of fact are required, so
substantial evidence test DOES NOT WORK
1. Step 1: Interpretive or Legislative? Informal Rulemaking
2. Step 2: Standard of Review: Arbitrary & Capricious- narrow standard, deferential to
the agency – usually applied to statements of policy/appropriateness or judgment,
difficult standard to apply
a. Probably a “hard look” doctrine case
c. Motor Vehicle v. State Farm: Issuing improved standards for motor vehicle safety
i. Rule initially required the instillation of seatbelts in all automobiles – later rescinded
ii. Issue: Was the Agency’s rescission of the seatbelt requirement standard A&C?
iii. Reasoning: Motor vehicle safety standards are to be promulgated under the informal
rulemaking procedures of §553 of the APA
1. DO NOT treat revocations of rules the same as refusals to promulgate standards
iv. They tried to rely on Vermont Yankee, but court isn’t requiring any procedures for the agency
to follow, just identifying a technological alternative under the existing standard
v. Holding: A&C because the agency didn’t even explain what uncertainties existed
1. Agency didn’t only not require compliance through airbags, but didn’t even consider
airbags as a passive restraint – no findings and no analysis to justify the choice made
(airbags were one of two proposed solutions originally)
vi. Rule: The Court cannot supply a reasoned basis for the agency’s action that the agency itself
has not given – the agency must cogently explain why it has exercised its discretion in a
given manner, and an agency changing its course must supply a reasoned analysis
vii. Step 1: Agency said it was like petition for rulemaking, with huge deference ot agency but
really modification of a rule, so is RULEMAKING
viii. Step 2: Standard of Review: Arbitrary & Capricious – part of it might be governed by the
substantial evidence – are the finding of fact adjudicative or more legislative?
1. Agency has to provide a “reasoned analysis” so maybe hard look doctrine – did they
rely on factors congress didn’t intend for them to consider – does it offer explanation
that runs counter to evidence before the agency (which is more of a factual – so it’s a
cluster)
ix. Dissent: Willing to accept idea that change in administration might be significant enough to
justify a change in regulation
d. Chevron v. NRDC (1984): EPA’s CAA passed, different interpretations of “source” under Carter
and Reagan – DC Circuit said can’t change interpretation,
i. SCOTUS reversed: Case changed the standard of review when an agency interprets a portion
within its statute – courts used to give little deference
ii. Rule: Unless congress has spoken unambiguously on a the precise issue, then the agency’s
interpretation controls unless it is unreasonable
1. Agency interpretation is given controlling weight unless it is arbitrary, capricious,
or manifestly contrary to the statute.
2. Step 1: Legislative or interpretive? Interpretive
3. Step 2: Standard of Review? A&C, with two part test
e. MCI v. American Telephone: FCC can “modify” any requirement of common carriers obligation
to file tariffs with FCC – have to file tariffs and charge only field rates under §203
i. Rule: An agency’s interpretation of a statute is not entitled to deference when it goes beyond
the meaning that the statute can bear
1. De-tarrifing policy can be justified only if makes a less than radical change in the
Act’s tariff requirement – deregulation was A&C
ii. Reasoning: Word “modify” has a connotation of increment or limitation
1. Commission’s desire to increase competition by altering statutory requirements isn’t
permissible – agency can’t decide a better method for achieving statutory goal
iii. Holding: Elimination of crucial provision of the statute for 40% of a major sector of the
industry is too extensive to be considered a “modification” and thus is invalid
iv. Step 1: Interpretive
v. Step 2: If you strictly uphold Chevron, congress hadn’t spoken directly on the precise issue
vi. Notes: “Modify” isn’t a term for which this agency has particular expertise, plus Chevron
didn’t enlarge the agency’s jurisdiction, but this would have greatly enlarged their power
without requiring additional procedures
f. FDA v. Brown: FDA asserted its jurisdiction to regulate tobacco in 1996
i. Holding: O’Connor: FDA’s assertion of jurisdiction was unwarranted – FDA’s approach to
cigarettes wouldn’t regulating of advertising and labeling, but not sale wouldn’t make
“drugs” safe or take them off of the market
1. No room for tobacco products within FDCA’s regulatory scheme, Congress has
passed numerous statutes all based on the fact that FDA has no jurisdiction
ii. Rule: Chevron finds that ambiguity in a statute provision is an implicit delegation from
Congress to fill in the statutory gap. However, to decide if “Congress has spoken directly”
look not just at the statute, but also at the context
1. Congress has repeatedly excluded FDA from authority to regulate tobacco – so they
have spoken directly to this issue (even though indirectly)
2. Banzhaf: Thinks its clear that Congress didn’t speak directly on that issue – so should
follow Chevron
iii. Holding: Congress could not have intended to delegate a decision of such economic and
political significance to an agency in so cryptic a fashion
iv. Breyer (dissent): Agencies are politically accountable, this decision will be either overturned
by congress, or supported by the executive
g. SWANCC v. ACOE: ACOE interpreted §404(a) to include authority over an abandoned sand and
gravel pit which is habitat for migratory birds
i. Issue: Did Congress intend for §404(a) to be extended to these types of water bodies, and if
so, is its regulation consistent with the Commerce Clause?
ii. Rule: Congress’ definitional use of “waters of the US” does not constitute a basis for
reading the term “navigable waters” out of the statute. Where an agency interprets a statute
invoking the outer limits of Congress’ power we expect a clear indication from Congress to
do so (thus Chevron is not appropriate)
1. There is no clear statement form congress authorizing the extension of
Congressional power to cover such a broad area
2. Would impinge upon state’s traditional power to regulate land and water use, and
congress specifically wanted to “recognize, preserve and protect primary
responsibilities and rights of the states”
iii. Holding: No. Congress did not intend such expansive authority to be given to the Corps,
and so doesn’t address the Commerce Clause issue. Where an otherwise acceptable
construction of a statute would raise serious constitutional problems, the Court will construe
the statute to avoid such problems unless such construction is plainly contrary to the intent
of Congress
iv. Chevron deference is not appropriate – prudential desire not to needlessly reach
constitutional issues (creates exception to Chevron’s step 2’s deference), but also think that
statue is on its face un-ambiguous so doesn’t need to give Corps any deference
v. Stevens/Souter/Ginsburg/Breyer (dissent): Clear case of environmental regulation, not land
use regulation, so federalism concerns aren’t relevant
h. FCC v. Fox Federal law prohibits broadcasting of “indecent language”
i. Issue: Is the FCC’s new rulemaking changing its position a valid exercise of its statutory
authority?
ii. Rule: An agency does not always need to provide a more detailed justification than would
suffice for a new policy created on a blank slate – only needs to if new factual findings are
available or when prior policy has engendered reliance that must be addressed
iii. Reasoning: Can set aside agency action that is A&C under APA §706, but a court can’t
substitute its judgment for that of the agency
1. Scalia: No heightened standard under APA if agency is changing its position
a. Can’t just ignore that it’s changing course, still has to articulate its
reasons for new position, but doesn’t have to show why this is better
2. Declines to address constitutional first amendment issue- cannon of constitutional
avoidance
3. Rational to no longer differentiate between literal and nonliteral uses, require
repetitive use of non-literal uses (rational that giving word a safe harbor would lead
to more widespread use)
iv. Holding: Yes. Commission’s new enforcement policy and order finding broadcast indecent
are not A&C.
1. They acknowledged that they were changing course (discussion issue), AND notified
that previous holdings were “no longer good law” (reliance issue)
v. Notes: Hard look – agency has to look harder at what is before it, or that the court has a
harder scrutiny of review
1. Later had inadequate notice of violation – so struck it down for due process, still
ducking first amendment issue
Topic 16: The Due Process Explosion- Expansion of Due Process Requirements
Other Information:
e. Equal Protection: In some situations they apply rational basis test meaning anything goes. Strict
scrutiny a much higher bar.