Admin Law Outline - Shaffer - Peter

8/4/2019 Admin Law Outline - Shaffer - Peter

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Background

I. Introductiona. “Agency” Defined

i. APA § 551— 1. “Each authority” of the US government, excluding—

a. Congressb. Federal courtsc. DC/territorial governmentsd. Military authority, courts martial, military commissions

2. This is applicable in most administrative-law contexts3. “Authority”—

a. Any officer or board, whether within another agency or not, whichby law has authority to take final and binding action with orwithout appeal to some superior administrative authority (APAlegislative history)

b. E.g., DOJ and sub-units of DOJ (Antitrust Division; SolicitorGeneral’s Office; FBI); cabinet -level officers (AG; Secretary of Labor)

4. In short —a unit of the US gov’t is an agency for APA purposes if it’ssufficiently important to be called an agency

5. President is not an agency for APA purposes. Franklin v. Mass (1992).ii. Constitutional Limits

1. Amtrak statute saying it’s not an agency doesn’t count for constitutional

issues dependent on whether it’s a state actor (successful 1A challenge).

Lebron v. Nat’l RR Passenger Corp. b. Agency Structure

i. Executive Agency1. Agency head subject to unlimited presidential removal authority2. Almost all single-headed agencies

a. All Cabinet-level agencies are single-headedii. Independent Agency

1. Agency head NOT removable at will by President 2. All the major multi-member boards and commissions

a. most of the alphabet soup agencies that broadly regulate economicactivity are multi-member boards or commissions

c. Agency Functions—Rulemaking vs. Adjudicationi. Agencies affect the rights and obligations of people through rulemaking and

adjudication (binding agency action)ii. Rulemaking

1. General/abstract 2. Prospective3. No application until it takes effect 4. Affects large numbers of people5. Focuses on the substance of the matter

iii. Adjudication1. Specific2. Retrospective3. Applies norm to specific facts4. Affects individual or small # of people5. Deals with enforcement and application

iv. Constitutional Review1. Procedural due process is required for adjudication but not rulemaking.

Londoner ; Bi-Metallic.



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2. Rulemaking procedural requirements = APA.v. APA § 551—

1. Rulemaking— a. “Rule”— future effect to make or implement law, can be general or

specific2. Adjudication—

a.

“Order”— final disposition in a matter other than rulemaking3. BUT Yesler (CA9 1994)—court applied general vs. specific distinction despitetext of APA

II. Theories of Agency Behaviora. First 100 years: 1789 – 1880

i. No Administrative Stateii. Founders were mistrustful of government power

b. Progressive Era: 1880 – 1930i. Goal: good administrative government

ii. Worried about large corporations and monopoly poweriii. Created: ICC, FDA, FTC, Federal Reserveiv. Agencies are independent, expert, commission-based, etc. (legal realism)v. Limited judicial review

c.

New Deal: 1930 – 1968i. APA (1946)—creates checks (constitutional checks had about disappeared)ii. Created: SEC, FCC, NLRB

iii. Agencies should solve problems; the law is generally not relevant iv. Pragmatism: experimentalism is good; there is no single, deductive truth; what’s

important is what worksv. Shouldn’t take separation of powers too seriously

d. Capture Theory: 1968 – 1978i. Agencies become pawns of industry—will always be “captured” by industry

1. Industry can monitor agencies much more effectively than normal people;collective action problem; public choice theory (self-interestedness:agencies don’t want to be haled into court , so they take into account theregulated industry’s perspective)

ii.

Created: EPA, OSHA, NHTSA, FOIAiii. Nader movement —public interest —want agencies but don’t trust them, so we want

increased judicial review .e. Modern Era: 1978 – present

i. Move toward deregulationii. Distrust of all political institutions (including courts)

iii. Pluralist thinking: there are competing interest groups, it’s not that bad

The Constitution and the Administrative State

I. Separation of Powersa. Formalism vs. Functionalism

i. Formalism—

1. Constitutional separation-of-powers provisions are important 2. Reason from premises to conclusions to determine constitutionality of

statute3. There’s some legislative-executive-judicial overlap, but we can draw lines4. More judicial policing of Constitution—courts should enforce boundaries5. Administrative state and much of today’s government would be

unconstitutional under a strict formalismii. Functionalism—

1. Focus on practical governance needs



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2. Assumes modern practices are constitutional until proven otherwise3. Each branch serves fundamental core functions, but otherwise believes the

boundaries of the branches’ power are fuzzy and that any branch can

perform functions of any other branch even where those functions do not so clearly overlap

a. Courts should enforce only the separation of the most core

functions4. Basic postulates:a. Few limits on congressional powerb. Few limits on ability of Congress to delegate that near-limitless

power to other actorsc. Reluctant to draw any substantive lines among legislative,

executive, and judicial powersd. It’s OK to insulate government actors from political influence e. Governmental functions can be combined in one institution

II. Delegation and Article Ia. Art. I: all legislative power is with the Congress

i. Functionalist —Congress can grant (revocable, modifiable) authority to President todo certain things

ii.

Formalist —there’s a line, legislative power can’t be delegated to executive b. Non-Delegation Doctrinei. Nondelegation doctrine holds that Congress can’t delegate its legislative author ity to

the executive, judicial, or private actorsii. Early cases—

1. Unconstitutional Delegationa. National Industrial Recovery Act is an unconstitutional delegation

of legislative authority (only statute Court’s held this about) i. Maybe important — Act delegated authority to private

parties b. Panama Refining (1935)—this delegation goes too far and exceeds

constitutional limits because Congress:i. Declared no policy

ii.

Established no standardiii. Laid down no ruleiv. Created no definition of circumstances and conditions to

allow or disallow the transportationc. Schechter Poultry (1935)—just seems like it went too far again

i. Problem = “virtually unfettered” discretion of the

President —no standards for trade industries/activities,didn’t create rules, general principles were very broad

iii. Modern test —“intelligible principle”

1. Bottom line:a. Congress has very broad, open-ended authority to delegateb. Delegation to a private body prob. not okay

2. J.W. Hampton (1928)—President can alter the amount of a duty to imported

merchandise to equalize costs of production (still cited as good law )a. If a statute articulates an INTELLIGIBLE PRINCIPLE to which theperson or body authorized to act is directed to conform, thelegislation is not a forbidden delegation

b. Amount of discretion Congress can give President must bedetermined “according to common sense and the inherent necessities of the governmental coordination”

3. Mistretta v. US (1989)—Sentencing Guidelines promulgated by SentencingCommission upheld as constitutional



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a. Intelligible principle guiding Commission’s creation of Guidelines,

so not unconstitutional (actually have a bunch of criteria here,underlying policies, specific directives for specific situations, etc.)

b. Should apply canon of constitutional doubt in construing statutesc. Stands for the proposition that nondelegation doctrine is

effectively nonjusticiable (except maybe in very extreme

circumstances)4. American Trucking v. EPA (2001)—Clean Air Act uphelda. “Requisite” is enough of a standard for air quality because it means

“sufficient but no more than necessary”—Congress doesn’t have togive determinate standards

b. Agency’s interpretation of delegation is irrelevant—it’s either an

intelligible principle granting authority to agency or it’s not c. Scalia/majority—some discretion, i.e. lawmaking, inheres in most

executive (or judicial) actiond. Stevens/dissent —would abandon the fiction that agency

rulemaking is executive (rather than legislative) power under theConstitution

c. Controlling Delegations

i.

Allocation of $$—if agency doesn’t have any money, it can’t do anything ii. Statutory override—change the law to overrule specific agency action, or amendorganic statute to eliminate agency discretion or even eliminate agency altogether

1. Constitutionality not in doubt generally, but bicameralism and presentment

constraints make it hard to get stuff doneiii. Legislative veto—give agency discretion that’s conditional on subsequent approval

or lack of disapproval by Congress, either House, or a legislative committee —NOTALLOWED

1. INS v. Chadha (1983)—unicameral veto (of AG’s discretionary decision not to deport deportable person) held unconstitutional

a. Legislative action to “be exercised in accord with a single, finely

wrought and exhaustively considered, procedure,” i.e.

bicameralism and presentment

b.

Presentment protects executive branch from Congress and thewhole people from improvident lawsc. Bicameralism assures an opportunity for full study and debate in

separate settingsd. Supermajority override of presidential veto prevents final arbitrary

action by one persone. Action by House here was exercise of legislative power because it

had the purpose and effect of altering the legal rights, duties, and

relations of people outside the legislative branch (Chadha, AG, INSofficials)

2. Bicameral legislative veto is also invalid . Consumer Energy Council of Am.

(1983).

III. Article II— Appointment Power

a.

Appointments Clause (art. II, § 2, cl. 2)— i. Presidential appointment subject to advice and consent of the Senate for officers of the US for principal officers

1. Specifically includes ambassadors, SCOTUS Justices, public ministers andconsuls, as well as “all other officers” who aren’t inferior officers

ii. Congress may by law vest the appointment of inferior officers, “as they think

proper,” in the President, the Courts of Law, or the Heads of Departmentsb. Officer vs. Non-Officer

i. Buckley v. Valeo (1976)—members of Federal Election Commission are officers



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1. Any appointee exercising significant authority pursuant to the laws of theUS is an officer

2. Employees are lesser functionaries subordinate to officers3. Implied limitation of Appointments Clause—Congress may not appoint

officers itself 4. Commissioners—

a.

Investigative powers that Congress could delegate to one of its owncommittees are okayb. Administrative functions make them officers—

i. Administration and enforcement of public law

ii. Performance of significant governmental duty exercisedpursuant to public law

iii. Discretionary power to seek judicial relief ii. Freytag (1991)—special trial judges (tax court) are officers

1. Tax Court = Art. I court 2. Special trial judges (STJs) ≈ magistrates—assist regular tax ct judges, hear

cases, sometimes render decisionsa. Bottom line: they do more than perform ministerial tasks

iii. Landry v. FDIC (CA-DC 2000)—ALJ who conducts formal hearing is not an officer

1.

Like Freytag STJs—office/duties/etc. established by law; exercisesignificant discretion; conduct trials and enforce compliance w/ discoveryorders

2. Bottom line—unlike Freytag, no power of final decision in certain (any)classes of cases

3. DISSENT—power to render final decisions was an alternative holding inFreytag— ALJs perform functions essentially like magistrates and thusare inferior officers—an ALJ is functionally comparable to a judge

c. Principal vs. Inferior Officeri. Morrison v. Olson (1988)—Independent Counsel (appointed to investigate and

potentially prosecute high-ranking government officials for violations of federalcriminal law) is an inferior officer

1. Line between inferior and principal officers isn’t clear, but independent

counsel (IC) “clearly falls” on the inferior side of that line2. Four factors in this case— a. Subject to removal by higher executive branch official

i. May be removed by AG for good causeb. Empowered by Act only to perform certain, limited duties

i. All investigative/prosecutorial functions of DOJ, BUT— 1. No authority to formulate policy for gov’t or exec.

branch2. No administrative duties outside of those

necessary to operate her officec. Office is limited in jurisdiction

i. Only certain fed. officials suspected of certain serious fed.crimes

ii. Can only act w/in scope of jurisdiction granted by SpecialDivision (a special court) pursuant to AG’s request

d. Office is limited in tenurei. No time limit, BUT—

ii. “Temporary”—office is terminated when single task forwhich IC is appointed is accomplished (either by herself or by action of Special Division)—no ongoing

responsibilities beyond accomplishment of mission shewas appointed and authorized for



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3. SCALIA DISSENT—if not subordinate to a principal officer, then a principalofficer (necessary but not sufficient condition for inferior-officer status)

ii. Edmond v. US (1997)—members of Coast Guard Ct Crim App = inferior officers1. Not limited in tenure/jurisdiction under Morrison, but that’s not a definitive

test 2. TEST: “inferior” status depends on whether officer has a superior

a.

Clause is designed to preserve political accountability forimportant gov’t assignments b. Inferior officers are officers whose work is directed and

supervised at some level by principal officers 3. JAG exercises admin oversight over Ct Crim App4. Power to remove—important —JAG may remove from judicial assignment

w/o cause5. No final decisions—Ct App for Armed Forces has review & reversal power6. SOUTER/CONCUR—should look at powers/duties in light of the constitutional

schemea. No single sufficient condition—having a superior officer is

necessary for inferior officer status, but not sufficient to establish it d. Appointing Inferior Officers—By Whom

i.

Congress’s Choice 1. Congress has significant discretion b/c of “as they think proper” language .Morrison.

a. But not unlimited— i. Separation-of-powers concerns—if provisions for

appointment had potential to impair constitutional

functions assigned to one of the branchesii. “Incongruity”—vesting appointment power in the courts

might be improper if there were incongruity between the

functions normally performed by the courts and theperformance of their duty to appoint

ii. Heads of Departments

1. Doesn’t include Speaker of the House or President pro tempore of the

Senate. Buckley v. Valeo.a. NOT Congress or its officersb. “Departments” in, or at least having some connection with, the

executive branch 2. Departments in the executive branch and created by Congress (and

maybe have to be given the name of a department). Freytag.a. Does not include inferior commissioners and bureau officersb. Does include executive divisions like the cabinet-level departmentsc. Chief Judge of Tax Court ≠ head of dep’t (but = ct of law)

iii. Courts of Law

1. Freytag—Chief Judge of Tax Court = “court of law” a. Not limited to Art. III courts (Tax Ct. is Art. III ct.)b. TEST: exercise of judicial power of the US —it interprets and

applies IRC in disputes b/w taxpayers and US gov’t c. Congress has wide discretion to assign the task of adjudication in

cases arising under federal law to legislative tribunalsd. SCALIA/DISSENT—Art. III cts only

i. Look at identity of officer—this is executive, so a head of adepartment

e. Circumvention: congressional expansion of a previously appointed officer’s duties i. Weiss v. US (1994)—additional appointment not necessary for military officers

(already appointed to that role) to carry out duties of military judges



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1. Concern: congressional circumvention of the Appointments Clause byunilaterally appointing an incumbent (particular individual) to a new anddistinct office

2. TEST: are the additional duties germane to the offices already held bythem?

a. MAJORITY—might only be applicable if it looks like Congress is

trying to appoint the officer, i.e. if Congress is aggrandizing b. SCALIA/CONCUR—concern not just aggrandizement —Congress can’t

lodge appointment power outside of President, heads of departments,

or courts of law (JAGs don’t fit, but finds germaneness)

IV. Article II—Removal Powera. Text —No Removal Clause

i. 4 possible text-based theories:1. Only impeachment —it’s the only mode of removal of executive officers

specifically mentioned in the text 2. Executive function—President has the “executive power” 3. Follow the mode of appointment 4. Congress can do whatever it wants—Necessary and Proper Clause

b. Unitary Executive—all executive power vested in President, not executive dep’t

i.

President must have supervisory authority over all discretionary decisions vestedby statute in executive officials—Congress can’t vest executive power in subordinate

executive officialsii. This is probably rejected by Morrison

iii. Question: Vesting Clause, or the more specific (very limited) enumerations in Art. II,§§ 2, 3?

iv. Not just removal—could be important on whether President can personally makediscretionary decisions vested in subordinates by statute

c. Early lawi. “Decision of 1789” —implicit legislative endorsement of a presidential power to

remove executive officials (debate in 1st Congress)ii. Myers (1926)—Constitution creates a presidential removal power

1. At least “heads of departments and bureaus” (and maybe most important

executive officials) subject to unlimited presidential removal poweriii. Humphrey’s Executor (1935)—Congress can limit President’s ability to remove FTC

commissioners1. Congress was trying to create a non-partisan agency, which has to be free

from political domination—this upholds independent agencies2. Distinguishes Myers—

a. Postmaster was a purely/exclusively executive positionb. FTC is quasi-legislative, quasi-judicial body, and is not purely

executiveiv. Wiener (1958)—statute creating War Claims Commission was silent ; Court finds it

implied that President can only remove for cause (b/c Commission acts like Art. Itribunal, providing adjudicatory-type function)

v. Bowsher v. Synar (1986)—Office of the Comptroller General case

1.

Congress can’t reserve for itself removal power over executive officialsbeyond its constitutional impeachment power2. Expressly does not say anything about presidential removal power

d. Modern lawi. Morrison v. Olson—AG removal of independent counsel only for cause upheld

1. Do NOT ask whether executive can be classified as “purely executive” 2. TEST: do removal restrictions impede President’s ability to perform his

constitutional duty?a. Art. II responsibilities: (1) exercise the executive power; (2) take

care that the laws be faithfully executed



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b. Analyze functions of the officials in light of this question3. Bottom line: President’s need to control IC’s discretion isn’t so central to the

functioning of the executive branch to constitutionally require that she beterminable at will—AG’s ability to terminate for good cause is enough to

ensure that IC is competently performing her statutory responsibilities inaccordance w/ the Act

4.

Dictum: maybe closer scrutiny if it looks like congressional usurpation of executive branch functions, e.g. Bowsher .5. Effective TWO-PART TEST:

a. (1) What was Congress’s intent? We don’t like congressional

aggrandizement.b. (2) Does it interfere w/ core functions of executive?

V. Article III— Agency Adjudicationa. Agencies have been upheld under the Constitution to perform adjudicationb. Background: through Northern Pipeline—historical recognition of 3 types of courts in which

Congress could vest part of the judicial power of the United States— i. Territorial courts

ii. Military courtsiii. Courts adjudicating disputes involving “public rights”

1.

This is ORDINARY agency adjudication—the difference in Schor is that it’slitigation of a private right as between individuals (counterclaim), and that’s

what Brennan has such a problem with2. Rationale: sovereign immunity—gov’t is creating rights where otherwise

you’d have none c. CFTC v. Schor (1986)—upholds Commission’s jurisdiction over common-law counterclaims

(here: contract) involving private rights between individualsi. 1st step: statutory interpretation

ii. 2nd step: constitutional issue1. Is it really interfering with “essential attributes of judicial power”? Is it

impermissibly threatening the integrity of the judicial branch?a. BALANCING TEST—3 factors—

i. Is it a power normally vested in Art III cts?

ii.

How important is the right being adjudicated?iii. Does Congress have valid concerns?iii. Important to the Court:

1. Narrow—ancillary claims only—incidental and tied to the claim created by

federal law , part of the same transaction or occurrence2. Art III availability—litigant voluntarily brought it before ALJ and could have

brought it in Art III court, and there’s Art III review3. ADR is good, we need prompt resolution that’s cost -effective4. Congress isn’t trying to usurp power; intrusion on the judicial branch is de

minimisd. 7A Jury Trial— Atlas Roofing Co. v. OSHRC (1977)

i. Where gov’t sues to enforce public rights and levies civil penalties (eventhousands or millions of dollars), no 7A jury right if adjudicated in agency rather

than federal court ii. Criminal penalty—DOJ has to prosecute in Art III court, get jury etc.e. Due Process—Withrow v. Larkin (1975)

i. DP requires a fair trial and forbids a biased decision maker—applicable to agencyadjudication

1. Bias—adjudicator’s pecuniary interest in the outcome, or having been

target of personal abuse by litigant, creates constitutionally intolerableprobability of bias



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a. Will normally only be found with very strong evidence that agencyadjudicator has prejudged both the facts and law of a particularcase

2. Fair trial—structure does not itself violate procedural due process—Boardmay act as both investigative and adjudicative body

ii. TEST—would what happened foreclose fair and effective consideration at the

adversary hearing of what was developed from nonadversarial processes?1. Presumption—these individuals are acting fairly and independently

Statutory Constraints on Agency Procedure

I. Intro: Administrative Procedure Act a. Rulemaking—

i. Informal: § 553ii. Formal: §§ 556, 557

b. Adjudication— i. Informal: due process floor

ii. Formal: §§ 556, 557 + some procedures required by § 554

II. Formal Rulemaking

a. US v. Florida East Coast Ry. (FECR) (1973)—organic statute’s “after hearing” language doesnot trigger formal adjudication

i. Court says statutory language other than “on the record” can trigger formal

rulemaking requirements if it carries that meaning, but this is a high bar that hasNEVER been met

b. Basically, magic word s = “on the record” i. Very few statutes require this

ii. “Full hearing” and “full opportunity for hearing” held insufficient to trigger formal

rulemaking by DC Circuit iii. No court after FECR has found formal rulemaking required absent phrase “on the

record”

III. Formal Adjudicationa. No SCOTUS case deciding what triggers formal adjudication

b. US Lines, Inc. v. FMC (CA-DC 1978)—apply FECR for adjudication as welli. No longer good law (at least in D.C. Circuit)

c. City of West Chicago v. NRC (CA7 1983)—Atomic Energy Act’s “hearing” requirement issatisfied by an informal hearing (pre-Chevron)

i. Absent magic words “on the record,” Congress must clearly indicate its intent to

trigger formal hearing provisions of APAii. No formal hearing required under NRC’s own regulations; defer to admini strative

interpretation unless “plainly erroneous or inconsistent with the regulation”

(Seminole Rock )d. Seacoast Anti-Pollution League v. Costle (CA1 1978)—adjudicatory hearing subject to judicial

review requires on-the-record hearing (pre-Chevron)i. Subject to rebuttal by evidence of contrary congressional intent, presume that

organic statute requiring a “hearing” triggers formal adjudication

1. Adversarial hearings help guarantee both reasoned decision making andmeaningful judicial review; require decision on basis of evidence adducedat hearing

2. Rulemaking—hearing allows opportunity for expression of viewsii. Overruled in 2006—no longer good law in 1st Circuit —could still be good law, or

persuasive authority, in some other circuit e. Chemical Waste Management v. EPA (CA-DC 1989)—informal hearing okay for RCRA’s

“hearing” requirement i. Chevron deference—



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1. “Public hearing” is ambiguous as to formal or informal hearing 2. Defer to agency regulation—permissible construction of organic statute

IV. Informal Rulemakinga. APA § 553—minimal requirements for informal rulemaking

i. Notice (time, place, nature of proceedings; statutory basis of authority; descriptionof subject with which rule is concerned)

ii. Comment (written comments or written comments + oral hearing)iii. Concise general statement (basis and purpose of rule)iv. 30 days from publication to when it takes effect

b. Hybrid Rulemaking—DC Circuit’s judge-made test (“liberal judicial activism”) i. Notice—still good law

1. Need public to really know what it’s about so the comment section can bemeaningful

2. What’s the basis of agency’s thinking? Methodology? Etc. 3. This lets those who might be affected by it hire their own experts and

contest stuff ii. Rulemaking proceeding—overruled, VT Yankee

1. Want to ensure agencies actually look at hearing, take in what participantsthink

2.

Oral presentation might be requirediii. Statement of basis and purpose—still good law1. We want a full record to review the basis for decision in order to conduct

judicial review2. Basically required to respond to all comments3. Why they chose the rule they chose

c. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (1978)— i. Holding: can’t require more procedure in the comment section

ii. Dicta: courts can’t require procedural devices beyond the § 553 textual minimad. Post-VT Yankee developments

i. VT Yankee limited to its holding w/r/t comment procedure1. Hybrid rulemaking requirements for notice of proposed rulemaking and

statement of basis and purpose are still good law

ii.

Key concepts— 1. We want meaningful participation and a final rule based on publicdeliberation

2. We want meaningful judicial review to be possibleiii. Connecticut Light & Power v. NRC (CA-DC 1982)—NRC creates rules for more fire

protection in nuclear power plants1. Notice—technical basis disclosure

a. Studies weren’t mentioned in original notice, but due to context thetechnical background was sufficiently identified (barely) to allowfor meaningful comment in the rulemaking process

b. Must reveal portions of the technical basis for a proposed rule in

time to allow for meaningful commentary .2. Re-noticing: Differences between proposed system and system ultimately

adopteda. Test: “logical outgrowth” (on notice of basic issues involved)b. Practical impact of new rules is close enough to that originally

proposed that interested parties did have a chance to comment onthe rules in their altered form. We don’t want a perpetual exercise

of never making improved rules.c. Again this is close, but the final rule isn’t so far away from the

postulated hazards that a new notice is required



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d. Agency must re-notice when the changes are so major that the

original notice did not adequately frame the subjects for

discussion.3. Statement of basis and purpose—justification for the final rules

a. It needs to sufficiently indicate the agency’s reasons for the rules sel ected so the court doesn’t have to “rummage” through the

record to piece together its own rationale b. Exemption procedure is apparently important here in allowing it toskate by

iv. United Mine Workers (CA-DC 2005)—notice requirements: 3 purposes:1. Ensure that agency regulations are tested via exposure to diverse public

comment 2. Ensure fairness to affected parties3. Give affected parties an opportunity to develop evidence in the record to

support their objections to the rule and thereby enhance the quality of judicial review

e. Notice of Proposed Rulemaking—3 forms of common challenges:i. Failure to disclose all the relevant data that animated agency’s thinking—

1. Failed to disclose important info in its possession when it issued its notice of

proposed rulemaking2. Challenge based on what agency knew when it issued its final rule—decisionbased in part on newly acquired information

a. Did it reject or modify the hypothesis?b. Extent of reliance on extra-record materials—supply basic

assumptions? Supplementary (clarify/expand/amend other dataoffered for comment) vs. primary evidence?

ii. Final rule concerns subject not adequately flagged by notice— 1. Can’t give notice that considering A, B, and C, then adopt rule concerning D 2. Public must be made aware of the agency’s proposals

iii. Rules covering same essential subject matter but differing from initially proposedrule in substance and details—

1. Courts try to stake out middle ground (CT Light & Power ): “logical

outgrowth” okay, but if it departs too drastically a new notice and newcomment period are requiredf. Statement of Basis and Purpose—agency’s justification for its rule

i. “Procedural inadequacy”— 1. Might really mean that agency failed to adequately explain its decision on

the merits2. Agency doesn’t need to respond to every comment, but must respond in a

reasoned manner to those that raise significant problems 3. Must respond to comments which, if true, would require a change in the

proposed rule ii. Statement refers to materials not specifically disclosed in notice—

1. Courts are reluctant to order new notice and comment for this2. We want agency to respond to comments made in the public-comment

periodg. Exemptions from Rulemaking Procedures

i. APA § 553—says its provisions don’t apply to: 1. § 553(a)—subject-matter exemption—

a. Rules w/r/t military or foreign affairsb. Relating to agency management or personnel or to public property,

loans, grants, benefits, or contracts2. § 553(b)(3)(A)—character exception—

a. Interpretive rulesb. General statements of policy



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c. Procedural rules (“rules of agency organization, procedure, or

practice”) i. Still have to give 30 days. § 553(d).

d. “Good cause” ii. Procedural Rules

1. No SCOTUS precedent

2.

Air Transport Ass’n of Am. v. DOT (CA-DC 1990)—vacated as moot; non-precedential (majority + dissent = persuasive authority)a. MAJORITY—does it involve important substantive values or effects?

i. Does it substantially affect the rights or interests of

regulated parties?ii. Does it encode a substantive value judgment ?

b. DISSENT—“primary conduct” test i. Substantive rules regulate primary conduct ; procedural

rules are furthest away from that ii. Party’s interest in the agency’s adjudicatory procedures

isn’t necessarily a substantive right 3. JEM Broadcasting v. FCC (CA-DC 1994)—rules calling for rejection w/o

opportunity for amendment of any broadcast license app that didn’t

unambiguously contain all information fall w/in procedural exceptiona. Disavows the Air Transport “value judgment” rationale, at least in

its broadest formb. Agency housekeeping rules often embody a judgment about what

mechanics and processes are most efficient. This is too broad to usefor a substance/procedure test.

iii. Interpretive Rules and Policy Statements1. 4 tests for distinguishing from legislative/substantive rules:

a. Legal-effects test —If the rule creates a binding norm on regulated

parties, it is substantive; otherwise it is interpretivei. If a rule is substantive under this test, it WILL be

considered substantive by ALL COURTS. But a rule not substantive under this test could still be found substantive

under another test.b. Substantial-impact test —Substantial impact on regulated partiesi. INVALID after VT Yankee

c. Impact-on-the-agency test —Requires considerable experience w/agency’s application of rule before you can say it’s actua llysubstantive

d. American Mining test —see below2. American Mining v. Mine Safety & Health Admin. (CA-DC 1993)—policy

letters saying certain x-ray readings qualify as “diagnoses” w/in meaning of

agency reporting regulations are interpretive rulesa. Focus on whether agency needs to exercise legislative powerb. Does rule have a legal effect? (If yes, rule = legislative)

i. Adequate legislative basis for enforcement action (orother agency action to confer benefits or ensureperformance of duties) in the absence of the rule?

ii. Rule published in CFR?iii. Agency explicitly invoked its general legislative

authority ?iv. Amend a prior legislative rule?

1. Not an amendment just b/c it supplies crisper andmore detailed lines than the authority beinginterpreted

c. Interpretive rules vs. general statements of policy



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i. Interpretive rules advise the public of the agency’s

construction of the statutes and rules it administersii. Policy statements advise the public prospectively of the

manner in which agency proposes to exercise adiscretionary power

1. i.e. articulate rather than apply a legal norm

3.

Interpretation of substantive regulation is probably substantive if it effectsa fundamental change in agency’s interpretation of the substantive

regulationiv. Good Cause

1. § 553(b)(3)(B)—agency for good cause finds (and explains) that notice andpublic procedure are impracticable, unnecessary, or contrary to the publicinterest

2. Tenn. Gas Pipeline Co. v. FERC (CA-DC 1992)—vacates interim rule requiringadvance notice/disclosure of construction/replacement of pipeline facilities

a. Good-cause exception is not an escape clause to be arbitrarily usedat agency’s whim, but should be narrowly construed and onlyreluctantly countenanced

b. Exception should be limited to emergency situations

c.

Grounds justifying agency use of the exception should beincorporated w/in the published rule d. Interim status of challenged rule—

i. “Significant factor” ii. Scope: the less expansive, the less need for public

comment iii. BUT no matter how limited, agency MUST OFFER

EVIDENCE or indicate the basis for its prediction beyond

merely asserting its expertise

V. Informal Adjudicationa. APA text —no procedural constraintsb. Citizens to Preserve Overton Park v. Volpe (1971)— highway through park; judicial review

based solely on litigation affidavits is inadequate

i.

Reviewing court has to engage in “substantial inquiry”—must find:1. Decision was based on a consideration of the relevant factors; and2. There was not a clear error of judgment

ii. Review must be based on the full administrative record that was before theSecretary at the time he made his decision

iii. Litigation affidavits alone inadequate for two reasons:1. Post hoc rationalizations = inadequate basis for review2. Not the “whole record”

c. Pension Benefit Guaranty Corp.(PBGC) v. LTV (1990)—decision to restore pension plansi. Courts are not free to impose upon agencies specific procedural requirements that

have no basis in the APA. VT Yankee.ii. § 706(2)(A) imposes a general “procedural” requirement that an agency must take

steps necessary to provide an explanation that will enable the court to evaluate the

agency’s rationale at the time of decision. Overton Park .iii. Only specific procedural requirements in APA for informal adjudication are in § 555(you can bring your lawyer if you have to appear before agency; you can get anagency subpoena upon request)

iv. APA does not create rights to be part of the decision-making processv. Due Process Clause may require certain procedures

VI. Choosing Between Rulemaking and Adjudication: Chenery a. SEC v. Chenery (Chenery I) (1943)—

i. Chenery I Principle: A reviewing court must judge agency action solely on the

grounds specifically relied upon by the agency .



14

1. The court cannot accept post-hoc rationalizations for agency action .2. Judge agency action based on what it did, not what it might have done.

ii. Facts/analysis—SEC made its determination based on judge-made rules (expresslylimited order to that extent —legal interpretation of what “fair and equitable”

means), and that did not support its decision.b. Chenery II (1947)—

i.

Chenery I just means that a reviewing court must judge agency action solely by the grounds invoked by the agency in making its decision .1. Corollaries—

a. Usual remedy is to remand back to the agency for furtherconsideration rather than to reverse outright.

b. Rationale for agency’s decision must be clear enough to be

understandable so courts can decide whether those reasons areadequate.

ii. Facts/analysis—SEC did exact same thing, but this time said it was acting on thebasis of administrative expertise, which is okay

iii. The agency can choose between rulemaking and adjudication for creating a new

standard .1. Rationale: admin process needs to be flexible, not everything should always

be immediately cast into a rule2. Rulemaking might provide better notice and wouldn’t be retroactive, but

too bad. Agency has discretion.

Scope of Judicial Review of Agency Actions

I. Introduction: Standards of Reviewa. Doctrinal Approach vs. Legal Process Approach

i. Doctrinal approach—has basically won out ii. Legal process approach—

1. a.k.a. “institutional competence” approach 2. Ask directly which body is best suited to making the decision under review3. Largely coextensive with the doctrinal approach

b. Continuum in normal litigation: de novo clearly erroneous abuse of discretion jurystandard (jury fact-finding)

i. Agency review ≠ any of these

II. Findings of Fact in Formal Proceedingsa. APA § 706(2)(E)—only set aside agency findings “unsupported by substantial evidence” b. Universal Camera v. NLRB (1951)—review of formal adjudication

i. What does “substantial evidence” mean? 1. Less deferential than jury standard; more deferential than FRCP 52(a)’s

“clearly erroneous” standard 2. More than a “mere scintilla”—requires “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion” 3. Enough to justify refusal to direct a verdict on a question of fact for the

jury (in a jury trial)

ii. Courts must consider “the whole record” 1. Have to consider the whole record, not just the evidence in the record that

could support the decision2. Must consider ALJ’s findings. Evidence supporting Board’s conclusion may

be less substantial when ALJ and agency disagree.c. Allentown Mack v. NLRB (1998)—

i. Articulated the substantial-evidence standard as “whether on this record it would

have been possible for a reasonable jury to reach the [agency’s] conclusion” 1. This looks like the jury standard



15

2. Courts recite this language but still use the Universal Camera intermediatestandard

3. Even in this case the Court engaged in much closer scrutiny of a factualdetermination than an appellate court would w/r/t jury determinations of fact

d. Kimm v. Dep’t of Treasury (CA-Fed 1995)—court reverses b/c agency didn’t explain why it

disagreed w/ ALJ—this means that agencies must account for findings of initial adjudicatorsi. Not a § 706(2)(E) case?e. Laro Maintenance v. NLRB (CA-DC 1995)—question of improper motive (failure to hire b/c of

union membership)i. Will uphold decision if it is supported by substantial evidence considering the

record as a whole (Universal Camera)ii. Will not displace reasonable agency findings ( Allentown Mack )

iii. EXTRA DEFERENCE—findings w/in agency’s area of expertise (NLRB is good at

determining improper motive)iv. Note that the court actually scrutinizes the record very closely in this case

III. Findings of Fact in Informal Proceedingsa. Two steps:

i. First , look to organic statute. If it’s not there—

ii.

APAb. APA § 706(2)(A)—“arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law”

i. Catch-all—this picks up misconduct not covered by the more specific paragraphsii. Not the same as the abuse-of-discretion standard for trial courts

c. Data Processing v. Federal Reserve (CA-DC [Scalia] 1984)— i. Take-away: with respect to determinations of fact, the arbitrary-and-capricious

and substantial-evidence standards are the same 1. Difference: for formal proceedings, factual support must be found in closed

record2. A “nonarbitrary” factual judgment has to be supported by substantial

evidence (in the APA sense), otherwise by definition it would be arbitrary3. So you need enough to justify, if the trial were to a jury, a court’s refusal to

direct a verdict when the conclusion sought to be drawn was one of fact forthe juryii. This is all dicta, but it’s won out and is the law (at least in the DC Circuit)

IV. Review of Agency Legal Conclusionsa. APA § 706—not really clear on this. Informed by pre-APA case law.b. Pre-APA cases

i. NLRB v. Hearst Publications (1944)—newsboys are employees w/in meaning of NLRA

1. NO deference to agency interpretations on abstract, naked questions of lawa. Does NLRA incorporate common-law tort standard?

2. WILL defer to agency application of law to specific facts if reasonable andon the record

a. Are newsboys “employees”?

ii. Other doctrines— 1. Is agency interpretation consistent? If an agency is inconsistent, then thereare reduced grounds for a court to show deference.

2. Reenactment doctrine: if Congress reenacts or mends a statute, and in sodoing it’s deemed to be aware of agency interpretations and doesn’t change

the agency interpretation, the implication is that Congress has accepted theagency interpretation.

iii. Skidmore v. Swift & Co. (1944)—does waiting time count as working time?1. Deference may be appropriate even when not dealing with a formal rule or

formal adjudication



16

2. Continuum of deference—sliding scale based on the presence of a bunch of factors

3. We need “very good reasons” to have standards of public enforcement and

those for determining private rights to be at variance4. Agency’s rulings, interpretations, and opinions that lack controlling

authority are entitled to respect. Weighting factors:

a.

Thoroughness evident in its considerationb. Validity of its reasoningc. Consistency with earlier and later pronouncementsd. All other “factors which give it power to persuade, if lacking power

to control” 5. Casebook —two things to take away from Skidmore—

a. Deference can be appropriate even when agency doesn’t have

formal responsibility for administering a statuteb. Sliding scale for amount of deference to agency

c. Current Practice—Chevron etc.i. Chevron USA v. Natural Resources Defense Council (1984)—

1. Applies to an agency’s construction of the statute it administers2. Step 1: Has Congress spoken to the “precise question” at issue? Is the intent

of Congress “clear” or “unambiguously expressed”? If not— 3. Step 2: Is agency’s answer based on a “permissible” construction of the

statute?a. Express delegation—arbitrary/capricious or manifestly contrary to

the statuteb. Implicit delegation—“reasonable” interpretation

ii. Broad vs. Narrow Reading of Chevron 1. Broad reading—replace distinction between pure legal questions and

questions of law application with a single, uniform principle of deference2. Narrow reading—this is an unusual situation in which the traditional

panoply of factors warranted granting an agency deference on a purequestion of law

iii. Where does Chevron apply?

1.

An agency’s construction of the statute which it administers. Chevron.a. Agencies administer statutes for which they have some specialresponsibility

i. E.g. IRS administers tax laws; rate-setting agencies do not even though they often have to interpret and apply the IRC.

b. Substantive provisions of the organic statutes they enforce2. Agency’s construct ion of its own regulations? Seminole Rock ; Auer .

a. Agency’s construction of its own regulation is controlling unless it

is plainly erroneous or inconsistent with the regulationb. This is probably the same as Chevron in practice, and some circuits

have held that Chevron applies to agency regulatory construction.3. NO DEFERENCE to—

a. Constitutional mattersb. Agency interpretations of court opinionsc. State agenciesd. DOJ interpretations of criminal lawse. Agency interpretation of Ks, deeds, other legal instruments (but cts

give some deference here in practice)f. Interpretive rules

iv. Christensen v. Harris County (2000)—deals w/ agency opinion letter on compelledcompensatory time

1. No Chevron deference for an agency opinion letter—



17

a. Didn’t arrive after formal adjudication or notice-and-comment rulemaking

b. It lacks the force of law, like an interpretation contained in a policystatement, agency manual, or enforcement guidelines

c. Would get Chevron deference if this was an agency interpretationcontained in a regulation (but regulation doesn’t address the issue)

d.

The touchstone is exercising delegated lawmaking authority2. No Seminole Rock deference unless regulation is ambiguous3. Still have Skidmore!

a. “Entitled to respect” BUT only to the extent that the interpretation

has the power to persuadev. US v. Mead (2001)—tariff classification not intended by Congress to carry force of

law [Chevron Step Zero]1. Administrative implementation of statutory provision gets Chevron

deference only if:a. Congress delegated authority to make rules [or orders] carrying

the force of law; ANDb. Agency interpretation was promulgated in the exercise of that

authority

2.

On Skidmore—degree of agency’s care, consistency, formality, relativeexpertness, persuasiveness of agency’s position 3. Interpretive rules aren’t promulgated in the exercise of the authority to

make law (Court doesn’t announce this per se, but casebook says it) d. Step 1: How Clear Is Clear?

i. Dole v. Steelworkers (1990)—finds statute clearly expresses Congress’s intention (“obtaining or soliciting of facts by an agency through reporting or recordkeepingrequirements” doesn’t encompass disclosure rules)

1. Look to language, structure, and purpose of Act 2. Uses traditional canons of construction3. Considers object and structure of Act as a whole4. Purposes of statute wouldn’t be furthered by agency’s interpretation 5. [Degree of certainty: Confidence you have in the meaning that you

ultimately find?]ii. Pauley v. Bethenergy Mines (1991)—finds statute ambiguous (defers for “shall not be

more restrictive than”) 1. Act produced complex and highly technical regulatory program;

identification and classification of eligibility criteria require significant

expertise and policy-based judgment 2. Notes the “Byzantine” character of the regulations 3. [Obviousness: Degree of effort required to find meaning?]

iii. FDA v. Brown & Williamson Tobacco (2000)—tobacco/cigarettes clearly not “drugs”

or “devices” or “combination products” that FDA can regulate 1. Interpret statute as symmetrical and coherent regulatory scheme2. Meaning of one statute may be affected by other Acts, esp. if they’re

subsequent and more specific to the topic at hand3. FDA’s findings logically imply that if tobacco products were FDCA “devices,”

FDA would be required to remove them from market, but other laws makeclear that cigarettes cannot be removed from market

4. This may be “extraordinary case” where there may not be implicit

delegation to fill gaps in statute w/r/t tobacco productse. Step 1: How Precise Is Precise?

i. Texas Municipal Power Agency v. EPA (CA-DC 1986)— 1. The court draws this very narrowly—

a. Act defines “actual 1985 emission rate” as [science] “as reported in

NURF-NAPAP database”



18

b. Court: Act doesn’t mention how EPA should treat utility unit whose

emission rates were not included in the NURF-NAPAP database, andtherefore “precise question” at issue isn’t addressed by the statute

and there’s a gap for the agency to fill f. Step 2: How Reasonable Is Reasonable?

i. Agencies almost always win here

ii.

Where agencies typically lose— 1. Interpretation completely fails to advance goals of underlying statute2. Interpretation is so bizarre that close analysis is unnecessary

iii. Basically look at interpretation’s “fit” w/ the statute iv. AT&T v. Iowa Utilities Board (1999)—

1. FCC’s rule giving blanket access to network elements is unreasonable b/c

Commission “shall” consider if the access is “necessary” and if lack of access

would “impair” ability of telecommunications carrier to provide services—

this requires FCC to apply some limiting standarda. FCC has to determine on a rational basis which network elements

must be made available, taking into account objectives of Act andgiving some substance to “necessary” and “impair” requirements

2. SOUTER/DISSENT—words necessary and impair can carry the meanings

identified by FCC; profits relate to necessity and impairment of business ina weak sense and that’s enough g. Stare Decisis and Chevron

i. Nat’l Cable v. Brand X Internet (2005)—agency not bound by CA9 interpretation of “communications service” in earlier case

1. Only a judicial precedent holding that the statute unambiguously

forecloses the agency’s interpretation displaces a conflicting agency construction—needs to hold that it’s the only permissible reading

2. Under Chevron, a court’s reading as to the best reading of an ambiguousstatute an agency is charged with administering is not authoritative; theagency is the authoritative interpreter

a. Precedent remains binding law in all other respects (e.g. to agencyinterpretations where Chevron is inapplicable)

3.

STEVENS/CONCUR—COA interpretation doesn’t foreclose contrary reading byagency, but a SCOTUS decision would remove any preexisting ambiguity and have stare decisis effect

4. SCALIA/DISSENT— a. This is probably unconstitutional—Art III cts don’t sit to render

decisions that can be reversed by executive officersb. Every case that reaches Chevron step 2 will be agency-reversiblec. If cts do this, it will be dictum anyway

V. Review of Agency Discretion and Policymakinga. Above analyses apply to the extent that discretionary or policy determinations implicate or

rest on factual or legal determinationsb. APA § 706(2)(A)—“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law” [arbitrary-or-capricious standard]

i.

Applies to parts of agency decision-making process that can’t be reduced toquestions of fact or lawii. Potentially applies to all agency action, incl. action subject to other standards of

reviewc. Agency discretion in various areas—

i. How agency allocates its budget (if not specified by Congress)1. Technically this is arbitrary-and-capricious review, but really it’s total

discretionii. Agency proceeds through rulemaking or adjudication

1. Chenery



19

iii. Agency’s prosecutorial powers 1. A different type of A&C review—you’d have to show some form of bias or

undue influence, real abuse of discretioniv. Policy issues (where statute is open-ended, doesn’t involve Qs of fact or law, just

policy choices)1. Chevron still applies in the background b/c you could say it acted so far

outside the legislative purpose of Congress as to be impermissible2. Hard-look review d. Three possible types of review:

i. Procedural reviewii. Outcome review

iii. Process review (hard-look doctrine, i.e. decisionmaking-process test)e. Hard-Look Doctrine

i. Greater Boston Television v. FCC (CA-DC 1970)—Bazelon creates hard-look test 1. We want agencies giving reasoned analysis to all the material facts and

issues2. TEST: Did agency (1) really take a “hard look” at the salient problems and

(2) genuinely engage in reasoned decision making?ii. MVMA v. State Farm (1983)—DOT revocation of airbag/seatbelt requirements is

arbitrary/capricious1. An agency changing its course by rescinding a rule is obligated to supply areasoned analysis for the change beyond that which may be required whenan agency doesn’t act in the first instance

a. Rescinding a rule is like enacting a rule—the agency is adopting apolicy decision

2. Arbitrary-and-capricious review:a. Agency needs to examine the relevant data and articulate a

satisfactory explanation for its action, including a “rational

connection” between the facts found and the choice made b. Was the decision based on a consideration of the relevant factors?

Was there a clear error in judgment?c. Agency rule is A&C if agency relied on factors Congress didn’t want

it to consider, failed to consider an important aspect of theproblem, or offered an explanation that runs counter to theevidence before it or is entirely implausible

3. After-the-fact justifications not good enough—it has to be on the record4. Bottom line: there needs to be enough there for the court to conclude that it

was the product of reasoned decision making

Timing and Availability of Judicial Review

I. Preclusiona. APA § 701(a)—review provisions apply except to the extent that (1) statutes preclude

judicial review or (2) agency action is committed to agency discretion by lawb. Express Preclusion

i. § 701(a)(1)—“statutes preclude judicial review” ii. Courts often strain to avoid giving preclusive statutes their full effects

iii. Constitutional claims are special—almost non-precludableiv. Shaughnessy v. Pedreiro (1955)—ambiguous word “final” construed to refer to

finality in administrative procedure rather than cutting off the right of judicialreview

v. Bottom line: construed narrowly to avoid preclusion of judicial review—need “clear and convincing” evidence of con gressional intent to preclude review

c. Implied Preclusion



20

i. § 701(a)(1)—“statutes preclude judicial review” ii. Block v. Community Nutrition Inst. (1984)—consumer-initiated (not handler-

initiated) review impliedly precluded1. Just a PRESUMPTION favoring judicial review of administrative action; may

be overcome by— a. Specific language or specific legislative history that is a reliable

indicator of congressional intent b. Contemporaneous judicial construction barring judicial review andcongressional acquiescence

c. Here—inferences of intent drawn from the statutory scheme as awhole

d. Basically—look at everything to determine intent : expresslanguage, structure of statutory scheme, objectives, legislativehistory, nature of administrative action involved

2. “Clear and convincing evidence” standard is not a rigid evidentiary test, but

a reminder to courts that where substantial doubt about congressional

intent exists, the presumption favoring judicial review is controlling 3. Facts/analysis—

a. Milk market orders set minimum prices that handlers (processors)

must pay to producers (dairy farmers)b. Act contemplates cooperative venture among Secretary, handlers,and producers in order to (1) raise price of agricultural productsand (2) establish orderly system for marketing them

c. Express provisions for participation by handlers and producers,but no express provision for participation of consumers in anyproceeding

d. Consumers not even required to pursue administrative remediesfirst —restriction of administrative remedy to handlers suggestsCongress intended similar restriction of judicial review of market orders

i. Allowing consumers to bypass this would effectively allowhandlers to circumvent the statutory requirement that

they first exhaust their administrative remediesd. Committed to Agency Discretion by Lawi. § 701(a)(2)—“agency action is committed to agency discretion by law”

ii. Overton Park (1971)—“ very narrow exception” — 1. Applies in “rare instances” in which statutes are so broad that there is “no

law to apply” 2. Exception inapplicable—Secretary only allowed to use public parkland for

highways if “no feasible and prudent alternative” and “all possible planning

to minimize harm”—judicial review is possible, so there is law to applyiii. Webster v. Doe (1988)—CIA director fired gay employee as security threat

1. Distinction between § 701(a) subsections— a. § 701(a)(1)—concerned w/ whether Congress expressed an intent

to prohibit judicial reviewb. § 701(a)(2)—statute drawn in such broad terms that there’s no

law to apply2. Does a court have a meaningful standard against which to judge

agency’s exercise of discretion?3. Must carefully examine statute on which claim of agency illegality is based4. Facts/analysis—

a. Nat’l Security Act: CIA director “may, in his discretion,” fire

employees “whenever he shall deem” it necessary or advisable in

the interests of the US



21

b. No basis on which reviewing court could assess agency terminationdecision—

i. Doesn’t have to be necessary/advisable to US interests,just be deemed by Director

ii. Not going to allow cross-examination of Directorconcerning his views of US security

5.

Constitutional claims—may bring colorable constitutional claim in district court a. Require a heightened showing—congressional intent to preclude

judicial review of constitutional claims “must be clear” b. Not allowing any judicial forum for a “colorable” constitutional

claim would raise a serious constitutional questionc. NSA precludes challenges based on statutory language, but doesn’t

give CIA ability to6. O’CONNOR/CONCUR—at least in nat’l security context (expansive presidential

authority), Congress can close the lower federal cts to constitutional claims(don’t want inferior fed cts used to infringe on President’s constitutional

authority )7. Scalia/dissent —

a.

Commitment to agency discretion by law includes, but is not limited to, situations in which there is “no law to apply” b. Common law of judicial review of agency application is

incorporated (“by law”); look at whether— i. Decision involves a sensitive and inherently discretionary

judgment callii. It’s the sort of decision that’s traditionally been reviewable

iii. Review would have disruptive practical consequencesc. (This explains why commitment to agency discretion isn’t

reviewable for abuse of discretion.)d. Not all constitutional claims require judicial review/remedy in

other contexts—they’re not special iv. Lincoln v. Vigil (1993)—Indian Health Service’s decision to discontinue program not

reviewable under § 701(a)(2)1. § 701(a)(2) also precludes judicial review of certain categories of

administrative decisions that courts traditionally have regarded as

committed to agency discretion, e.g.— a. Agency’s decision not to institute enforcement proceedings b. Agency’s refusal to grant reconsideration of an action b/c of

material errorc. National security (special executive area) (Webster )d. Allocation of funds from lump-sum appropriation

2. Touchstone seems to be the impossibility of devising an adequate standard

of review for the agency action3. APA contemplates judicial review for colorable constitutional claims, absent

a clear expression of congressional intent

II.

Standinga. Constitutional Standingi. TEST—

1. Injury in fact a. Concrete and particularized, distinct and palpable—not abstract or

conjecturalb. Actual and imminent —not speculative

2. Causationa. “Fairly traceable” link b/w unlawful conduct and injury

3. Redressability



22

a. “Substantial likelihood” that judicial relief requested can redressthe injury

ii. Friends of the Earth v. Laidlaw (2000)—finds standing for private citizens who don’t

like mercury being dumped in their river1. Injury—need to show injury to the plaintiff , NOT injury to the environment 2. Redressability—can include civil penalties paid to the government

a.

Sanction that effectively abates the conduct and prevents itsrecurrence = redressb. Civil penalties encourage Ds to discontinue current violations and

deter them from committing future onesi. Theoretical availability of civil penalties isn’t enough—

availability and imposition are interdependent (credibilityof threat creates deterrent value)

b. Statutory Standingi. APA § 702—“A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of the relevant statute, isentitled to judicial review thereof.”

ii. 1946 understanding1. “Legal wrong”—any kind of injury traditionally cognizable by courts

a.

Common law legal interest test —(1) competitive injury not a legalwrong unless competitive acts were themselves illegal; (2)ideological or aesthetic interests not enough

2. “Relevant statute” = special review statute— a. Expanded range of persons who could challenge agency actionb. Typically described class of permissible plaintiffs as “all person

adversely affected or aggrieved by agency action” iii. Erosion of 1946 understanding

1. Scenic Hudson (CA2 1965)—non-economic interests as well as economicinterests are protected (aesthetics, conservation, recreation); those withspecial interests in such areas are “aggrieved” parties

2. United Church of Christ v. FCC (CA-DC 1966)—direct economic injury in thecommercial sense not required; TV viewers can challenge, not limited to

competitor stationsiv. Modern Law: Zone of Interests1. TEST—is interest party seeks to protect an interest protected or regulated

by the constitutional or statutory provision upon which her claim rests?2. Ass’n of Data Processing Organizations (ADAPSO) v. Camp (1970)—creates

zone-of-interests test a. The “legal interest” test goes to the merits, not standing b. Is the interest sought to be protected by complainant arguably

within the zone of interests to be protected or regulated by the

statute or constitutional guarantee in question?c. Facts/analysis—

i. Organic statute prohibits bank service corps. from doinganything other than performing services for banks

ii. Competitor data processing co. is arguably w/in zone of interests protected by the substantive terms of the

organic statute, and thus is “aggrieved” under § 7023. Barlow (1970)—tenant farmers w/in zone of interests of Food &

Agriculture Act 4. Arnold Tours (1970)—travel agents can challenge Comptroller’s ruling that

national banks can provide travel services5. Investment Co. Institute (1971)—investment companies have standing to

challenge Comptroller’s decision to allow national banks to operate mutual

funds



6. Applying zone test —ct must discern whether interest asserted by party inthe particular instance is one intended by Congress to be protected orregulated by the statute under which the suit is brought. Control Data Corp.

(CA-DC 1981).7. Air Courier v. Am. Postal Workers Union (1991)—postal employees are not

within zone of interests of the Private Express Statutes

a.

Two-step analysis— i. 1st —injury in fact ii. 2nd—w/in zone of interests

b. Zone test —must determine Congress’s intent in enacting the

statutes—what was the congressional concern?c. “Relevant statute” under the APA is the statute whose violation is

the gravamen of the complaint d. Facts/analysis—PES concerned w/ receipt of necessary revenues

for Postal Service; labor-management provisions of PRA can’t be

used to support standing since complaint is based on allegedviolation of PES

8. Bennett v. Spear (1997)—whether P’s interest is arguably protected by the

statute requires that the injury fall w/in zone of interests protected by the

statutory provision whose violation forms the legal basis for thecomplaint [re-articulation of Air Courier ?]

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