Administrative Law Outline with Index - Bar Exam Mind

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Misretta: Congress creates an intelligible principle when it tells an agency to make rules following specific 'goals, purposes, and factors'; e.g., ..... Roth and Perry.
❖ Admin Law -- Williams

Fall 2005

❖ Non-Delegation Doctrine—Art. 1, §1: all legislative powers shall be vested in Congress = Congress can’t delegate legislative powers. o Intelligible Principle: If Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform, such legislative action isn’t a forbidden delegation of legislative power. Misretta ▪ Misretta: Congress creates an intelligible principle when it tells an agency to make rules following specific "goals, purposes, and factors" ▪ e.g., Panama Refining and Schechter: • where standard for rulemaking is "vague and standardless" and there is no restriction on discretion, the delegation is unconstitutional ▪ Whitman v. American Trucking: • dicta: the degree of agency discretion that is acceptable varies according to the scope of the power conferred by Congress





❖ Legislative Veto—Congress can delegate authority, but reserves to itself the power to nullify an individual action taken pursuant to delegated authority. o For legislative act (incl. legislative veto) to be constitutional, it must comply with: ▪ Bicameralism—need concurrence of a majority of members in both houses. ▪ Presentment—present to President for approval or veto. o INS v. Chadha ▪ the per se requirements of presentment and bicameralism emerge based on a formalist reading of the text of the Constition ▪ the Dissent in this case would use a functionalist approach and permit single-house veto in order to speed up decision-making o Bowsher v. Synar ▪ Congress cannot reserve for itself a legislative veto over the exercise of executive power Relationship to President—removal questions NW on Humphrey's: this case splits the definition of principal officer created in Myers

principal officer (at-will removal) purely executive (at-will removal)

vs quasi-legislative/quasi-judicial (Congress can restrict) NB: if official is not purely executive, then Congress must affirmatively grant President the removal power (Weiner) inferior officer (Congress can restrict)

o If person is an inferior officer or employee, Congress can insulate employees from President’s removal power b/c the President’s removal powers derive from statute or congress’ consent. o If person is a principal officer (appointed by President & approved by Senate), ask if they’re: ▪ Purely executive officials—President can remove at will b/c power is derived from the constitution. ▪ Quasi judicial or quasi legislative officials—Congress can insulate (limit) officials from President’s at will removal the President’s removal powers derive from statute or congress’ consent. Jobs require freedom from executive interference. • Humphrey's Executor: i.e., someone in an agency/capacity that cannot in any proper sense be characterized as an arm or an eye of the executive o …but Morrison... Core Function Test. Case controls to the extent there is any inconsistency between it and prior cases. (But is there really any inconsistency?) ▪ The determination of whether President’s power to remove an official does NOT turn on whether the official is purely executive (no rigid categories) but whether Congress’ removal restrictions interfere with the President’s ability to perform his core functions to exercise the “executive powers” and his constitutionally appointed duty to “take care that the laws by faithfully executed” under Art.II. • i.e., where a removal restriction impedes the Art II duties of the President, Congress can never insert itself into the removal process ▪ For quasi-judicial or legislative officials, all cases point to the same outcome. Only for purely executive officials is there a conflict between Morrison and Myers, w/ Morrison providing greater flexibility for Congress to insulate those officials from Presidential removal.

❖ Relationship to Judiciary—When does Art. III require an Art. III court to decide a matter and when does it forbid Congress to give the adjudicatory power to another official person or body for decision? Supreme Court hasn’t established a definitive test, so analyze using Schor and Crowell. o Art. III, § 1: judicial power of the U.S. shall be vested in one superior court and in such inferior courts as Congress shall from time to time ordain and establish. o Crowell—“Public/private right” distinction determines whether Congress can grant adjudicatory power to a non-judicial body: ▪ Public Rights cases—Art. I courts can always adjudicate (i.e., per se rule) • def: claim between private individual and the government o Marathon puts cases between individuals based on right created by statute into this category. • Statutory right closely intertwined w/ a federal regulatory program. • Suits by/against federal gov’t, but gov’t doesn’t have to be a party. ▪ Private Rights cases—Art. I courts can adjudicate if there’s judicial review and the Art. I court has expertise and therefore an "integral part" of the administrative scheme. • def: claim of liability between two private individuals • Any state law claim • Claim with a legal effect on an individual ▪ NB: Article I courts are: • tax court, courts martial, b/k court, and territorial courts o Schor—rejects the public/private rights distinction as an absolute basis and holds that an agency can adjudicate a case as long as ▪ the adjudication does not invade a core function[1] of Art. III adjudication [goes back to Marbury's desire to keep power of each branch within prescribed limits]; AND ▪ protects litigant's rights to have claims decided by judges who are not dominated by other branches of government. [cf. Congress's attempt to separate functions in the APA] • NB: O'Conner's discussion of personal/structural concerns (p. 10 notes) o Four factor functional balancing test: ▪ Extent of delegation • if limited, then weighs against violation of Art III ▪ Reservation of authority w/ in an Art. III court—judicial review? • if review of law and facts permitted, then weighs against violation of Art III ▪ Origins and importance of right to be adjudicated. • public/private right ▪ Concerns that drove Congress to depart from the requirements of Art. III.—is there a legitimate need? • i.e., the reasonableness test

HEARINGS

|Organic Statute Requirement of Decision on “Record” After Opportunity for | |“Hearing” | | |Yes |No | |Rulemaking |Formal Rulemaking |Notice-and-comment | | |§§ 553(c), 556-57 |rulemaking § 553 | |Adjudication |Formal Adjudication |Informal Adjudication | | |§§554, 556-57 |(no APA procedures) |

❖ What the Constitution requires o Bi-Mettalic: individuals are not entitled to a hearing when the legislature makes a policy decision that affects everyone equally because it would be impracticable to hold more than a general hearing o However, the APA often imposes additional procedural requirements o Southern Railway: while a legislature could impose a burden on RR without a hearing, an agency cannot without violating DP because it must gather facts before making a decision ▪ e.g. of legislative vs. adjudicative facts





❖ Formal Rulemaking (small area after FL East Coast) o Promulgation of rules through a formal public and deliberative process. o § 553(c)—when rules are required by statute to be made on the record after opportunity for an agency hearing, §§ 556 & 557 apply (formal rulemaking). o To trigger formal rulemaking, congress must use words “hearing on the record” in the organic statute. FL East Coast ▪ Hybrid Procedures: In informal rulemaking, if there’s a provision in the organic statute for judicial review, the agency should provide an adversarial, adjudicative type procedure even when the organic statute doesn’t say “hearing on the record.” See §556(d) (Overruled? By Vermont yankee) ▪ These procedures developed by courts to ensure the ability to give proper judicial review because FL East Coast basically killed formal rulemaking o [see also "separation of functions" section below]

❖ Informal Notice and Comment Rulemaking o the judicially-created "paper hearing" o agency must disclose information on which it will rely to make its rule so that parties may address this information in their written comments. Nova Scotia Food ▪ failure to disclose vitiates the element of fairness essential to any kind of administrative action o final conclusions of an agency must be a logical outgrowth of the n&c proceeding (i.e., can't ambush a party with a rule based on all new conclusions). Weyerhauser. o agencies must explain the basis of their decision and respond to all comments of "cogent materiality" ▪ in practice, agency responds to ALL comments so as not to have rule invalidated o Vermont Yankee: ▪ APA precludes judicial requirements that agencies use additional procedures beyond those specified in the APA and other relevant statutes absent extremely compelling circumstances. ▪ adequacy of record turns only on whether the agency has followed the statutory mandates of the APA and its organic statute

o Challenging Agency Rules ▪ FPC v. Texaco says that no agency rule may be challenged on its face during an adjudicatory proceeding ▪ The only thing that cannot be established by rule are facts needed for each case-by-case adjudication (Heckler) – adjudicative facts ▪ How to challenge the rule (see NW's comments at p. 18 of notes): • argue that procedure in creating the rule was defective under DP or APA. • argue that rule is "arbitrary and capricious" based on the facts in the record

❖ Informal Rulemaking: Exceptions o Used in rulemaking when the applicable statute doesn’t provide for a “hearing on the record” under § 553. o Agency doesn’t have to comply w/ notice-and-comment rulemaking under § 553 b/c public participation isn’t useful or necessary when: ▪ Good Cause that a hearing would be: • impracticable • unnecessary; or • not in the public interest (e.g., it would give heads up to violators) ▪ Interpretative rules[2]—allows agency to explain ambiguous terms in legislative enactments w/out having to undertake cumbersome proceedings. Test to determine if rule is interpretative: • Does reg have present & binding effect? If not, reg is interpretative. 4 part test under American Mining to see if interpretive rule has “legal effect” [if you answer yes to any of these factors, then you have a legislative rule; no to all is an interpretive rule][3]: o Whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties (most weight put on this first factor) o Whether the agency has published the rule in the CFRs o Whether the agency has explicitly invoked its general legislative authority o Whether the rule effectively amends a prior legislative rule • Does the agency have discretion on whether to enforce the rule? If yes, reg is interpretative. See Shalala ▪ General policy statements—allows agency to announce its tentative intentions for the future w/out binding itself. ▪ Rules of agency organizations, procedure, or practice—agency retains latitude in organizing its internal operations.

❖ Common Law Requirements for Agency Action o Explanation (Chenery) ▪ Whatever explanation of its conclusion given by the agency will govern judicial review, lawyers can't add better explanations in their briefs ▪ Reasoning should be expressed with clarity and thoroughness • reliance on informed discretion (i.e., expertise) is permissible reason for a decision o Consistency (Arizona Grocery) ▪ an agency cannot use adjudication to amend a rule; it must abide by the rule or change it in the proper rulemaking process • NB: adjudication by itself can have retroactive effect ▪ Caceres limited the Arizona principle to agency actions by permitting wiretap obtained in violation of agency rules to be used in a criminal action, but could not be used in an agency-only adjudication of the same person o Estoppel & Res Judicata (for comparison of the two, see fn 16, p 25 of notes) ▪ Estoppel cannot be applied against the gov’t when the remedy is money from the US treasury, but can apply estoppel when remedy is something else (land, license to operate business). Schweiker and Richmond. • unless we have affirmative misconduct • possible remedy: seek private bill in Congress!! ▪ Non-Mutual Collateral estoppel will NEVER run against gov’t—Once a court has decided an issue of fact or law necessary to its judgment, that decision is NOT conclusive in a subsequent suit based on a different cause of action involving different parties.

o Retroactivity—when is adjudication & rulemaking permissible when retroactive? ▪ Adjudication: • Agencies can apply retroactive policy changes, but cannot condemn a party’s action that was lawful at the time the party engaged in the conduct. o An agency’s retroactive policy change will be upheld if the prior conduct by parties was lawful. Change doesn’t effect party’s legal status. o An agency’s retroactive policy change will NOT be upheld if the prior conduct of parties was unlawful. o the test is ad hoc and balancing: what matters in not the change in the policy, but how the change impacts the regulated entities. ▪ "hardship altogether out of proportion to the public ends to be accomplished" ▪ Rulemaking • A court will not construe congressional enactments and administrative rules to have retroactive effect unless the organic statute states so. Congress must expressly delegate retroactive rulemaking. • this is a per se rule • NB: secondary vs. primary effects under Bowen.

❖ Due Process o Has there been a deprivation of life, liberty, or property? If not, stop inquiry. Bailey. ▪ If individual can be made whole by post-judicial remedy, they’ve received all the due process that’s necessary (can individual be compensated fully in monetary terms for destruction of property?). NA Cold Storage[4] • Cold Storage can be compensated for destruction of chickens. NA Cold Storage • Subcontractor can be made whole through an ordinary breach of contract suit. o i.e., where private interest has been historically protected by a CL cause of action, no need for pre-deprivation hearing because CL action protects person against erroneous deprivation. Lujan v. G&G Sprinkler o If yes, look to what process is due. Cafeteria Worker. ▪ NB: Cafeteria also rejected the privilege/right binary of Bailey

o Interests entitled to procedural protection: Due process protections are only triggered when there’s a deprivation of life, liberty, or property. ▪ Property right can be an affirmative grant or statutory entitlement. • Welfare entitlement. Goldberg. o NB: can't be made whole be post-deprivation process because of danger of immediate destitution. o However, NA Cold Storage is still good law, but limited to situation where there is a threat to public health or safety ▪ Old property—money, possessions, state common law, real property ▪ New property—statutory entitlements (jobs, welfare), state and federal regulations, contractual • govt benefit is only a property interest where the litigant has a legitimate claim of entitlement to it. Roth and Perry ▪ Liberty Interest – state employment (in some situations); freedom from stigma ▪ “Significant & Atypical” test—a prisoner does NOT have a liberty interest if he is free from atypical and significant hardships imposed upon them by prison officials. If state does something to prisoner that’s atypical and significant, it must provide prisoner w/ due process. Sandin and Wilkinson o What Process is due? ▪ NB: Court always reviews process required based on DP clause of the Constitution, not the type of substantive right created by a legislature. See Arnett. -Use Mathews’ Balancing Test (an elaboration on Cafeteria Worker): ▪ Private interests (of the entire class[5] of claimants) that will be affected by the official action. ▪ The risk of an erroneous deprivation (to whole class) of such interest through the procedures used and the probable value (to whole class), if any, of additional or substitute procedural safeguards. • Look to risk of error in process offered v. the probable value of added process. ▪ The government’s interest (vis-à-vis the whole class), including the function involved and the fiscal administrative burdens that the additional or substitute procedural requirement would entail. • Look to the govt's interest in avoid the added process.





❖ Separation of Functions in Rulemaking—only applies in formal rulemaking & not adjudication or informal rulemaking. o Agency head, but not mere agency employee, can sit as both investigator & ultimate adjudicator. The combination of investigative and adjudicative functions does NOT, w/out more, violate due process. See 554(d). Courts can look to specific facts and circumstances of case to see if the risk of unfairness is intolerably high. ▪ Unalterably Closed Mind Test—adjudicator should be disqualified only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to disposition of proceeding. • aka, prejudgment test applied where agency is making policy through adjudication ▪ An adjudicator with a substantial pecuniary interest in the case should not adjudicate the dispute.



❖ Who Decides? “He who decides must hear.” Morgan o The reviewing court will not probe into the adjudicator’s thought process to determine how they came to their decision—just need to show some material involvement. o Absent a showing of bad faith, a reviewing court will not allow discovery into the adjudicator’s process in reaching his decision. The P must make an evidentiary showing that the adjudicator has not complied w/ Morgan…but this will rarely happen b/c it’s almost impossible for outside parties to know if the adjudicator has failed to comply w/ Morgan. Nation Nutritional Foods Assoc.







❖ Agency Decision-Making Structure ❖ Separation of Functions in Adjudication (3 major prohibitions under §554(d) that apply to formal adjudication under statute or Constitution when performed by ALJs) o NB: unlike FL East Coast which requires magic words (or their functional equivalent) for formal rulemaking, formal adjudication may be required simply because the Constitution requires it (see DP). ▪ APA separates adjudicatory and prosecutorial functions under § 554(d)—“an employee or agent engaged in investigation or prosecuting function can’t participate or advise in the decision, recommend decision, or agency review.” ▪ ALJ can't engage in ex parte communications[6] §554(d)(1) ▪ ALJ is not subject to supervision or direction of an employee engaged in investigation or prosecutorial functions §554(d)(2)

▪ Congress must expressly state in the organic statute that the same person ("specially designated") can prosecute and decide a case if it wants to exempt the agency from §554(d).

❖ Judicial Review of Agency Actions ❖ § 706—court shall review the whole record or those parts of it cited by a party (incl. evidence that would contradict the jury verdict). ❖ Review of Factual Determinations—Standard of Review o Substantial Evidence Test—requires that the evidence be substantial after the reviewing court takes into account whatever in the record detracts from its weight. Evidence must be sufficient to support the conclusion of a reasonable person after considering the evidentiary record as a whole, not just the evidence that is consistent w/ the agency’s finding. Universal Camera (SC) ▪ Gives considerable deference to agency findings of fact—if evidentiary record would permit a reasonable person to reach more than one conclusion, the agency’s finding will be affirmed as long as it reaches any of those conclusions. ▪ In conducting review of discrepancy between ALJ & agency, court attaches great deference to agency findings of primary (credibility) inferences, but not to derivative (non-credibility) inferences. Universal Camera (2d Cir, concur) ▪ Test is dominant standard for judicial review of factual determinations by agencies in “on the record” proceedings, which includes formal adjudication and formal rulemaking. o POLICY ▪ we have judicial review to prevent agency from making biased findings in favor of particular classes of people (e.g., unions); NW: agency could use fact finding to evade legal limits on its authority ▪ however, we don't have de novo review because: it would be too expensive, and it would make agency factfinding superfluous o Why have whole record review? ▪ evidence matters because it may outweigh the inferences that the agency used to make its determination (e.g., Universal Camera and believing the ALJ's finding) o When must an agency defer to an ALJ's findings? (Universal Camera III) ▪ must defer to primary inferences (i.e., credibility-based findings), except when there is a "very substantial preponderance" of evidence to the contrary ▪ need not defer to derivative inferences o How much weight should a court give to a factual dispute between an agency and its ALJ?[7] ▪ depends largely on the importance of credibility in the particular case ▪ i.e., some undefined weight (Hand collapses this standard into the primary/derivative findings test) o Substantial evidence exists where the record does not preclude the finding based on a fair estimate of its worth or an agency's expertise ▪ NW: this is more deferential than clear error standard because of the deference to "agency expertise"

❖ Review of Legal Determinations o When Congress has NOT delegated (i.e., Mead step 0) interpretation to the agency, but agency has expertise, use Skidmore[8] “respect” Test to determine when the court should defer to agency: ▪ The thoroughness evident in its consideration, ▪ The validity of its reasoning, ▪ Its consistency w/ earlier and later pronouncements, ▪ And all those factors which give it power to persuade, if lacking power to control. o Chevron[9] deference Test for judicial review of agency interpretations of law when authority has been delegated by Congress. Court should defer if: ▪ Whether the statute is clear—has Congress spoken directly and unambiguously on the precise question at issue? • If intent of Congress is clear (it directly addressed precise question at issue), give effect to the unambiguously expressed intent of Congress [and no deference to agency]. o To determine Congress' intent, use traditional tools of statutory construction: text, legislative history, structure, policy. ▪ If statute is silent or ambiguous with respect to the specific issue, look to whether the agency’s interpretation of statute is permissible or reasonable.

o Chevron rule as stated by NW: ▪ Defer if: 1) Congress has not "directly spoken" to the "precise" issue; and 2) agency's interpretation is "reasonable"

❖ Chevron’s Reach—Step 1 o Step Zero under Mead—Did Congress delegate authority to the agency generally to make rules carrying the force of law & was the agency’s interpretation promulgated in exercise of that authority? ▪ Yes—use Chevron. Look for agencies to act through adjudication, notice-and-comment rulemaking, or some other procedure indicating comparable congressional intent. ▪ No—use Skidmore. Interpretations that lack force of law are “entitled to respect” under Skidmore. Look to whether an agency’s interpretation may merit some deference whatever its form, given the “specialized experience and broader investigations and information” available to the agency. Expands on Christensen. • examples of things lacking force of law: o opinion letter (Mead) o tariff ruling letter (Christensen) ▪ Scalia would add: these have force of law if issued by agency head (i.e., if they are authoritative) Christensen (concur) • Mead severely limits Chevron's reach, keeping it almost entirely out of informal adjudication (which is a large portion of all agency activity) o Step One: Statutory Tools for Interpretation to determine if Congress "directly spoke" to the "precise" issue: (often used by court to cleverly avoid a finding of ambiguity and therefore permitting court to give no deference to agency interpretation because Congress has "directly spoken" to the issue. Cardoza Fonseca. ▪ Text (dictionaries) ▪ Legislative history— • Floor debates • Committee reports • Committee hearing reports (what outside experts have testified to) ▪ Statutory structure—compare statutory structure of this statute with complimentary statutes. ▪ Policy ▪ Canon—no avulsive (fundamental) change in statute ▪ Subsequent legislation ▪ History of administrative use of delegation ▪ Canon—delegation won’t be interpreted to push constitutional limits, unless there’s a clear statement to the contrary. o Clear Statement Principle—courts sometimes interpret statutes narrowly to avoid invalidating the statute or to avoid ruling on a serious constitutional issue. When Congress wants to push congressional limits, it must expressly say so.

❖ Chevron’s Reach—Step 2 o Is agency’s interpretation reasonable? Consistency based approach under Ohio. ▪ To determine what’s reasonable, look to whether the agency’s interpretation is consistent w/ what Congress intended (i.e., with the organic statute and overall statutory scheme).

❖ Review of Policy Determinations ( "Hard Look" Review o § 706(2)(A): “arbitrary and capricious” is foundation for policy review. Use for agency decisions with informal proceedings, including informal rulemaking. ▪ court's review is confined to the administrative record only • if record is inadequate, the district court should either: o depose admin officials (not liked under Morgan); or o vacate and remand for formal findings o Arbitrary and Capricious Review: Citizens to Preserve Overton Park ▪ Did the agency consider all the relevant factors? ▪ If the agency did consider all the relevant factors, did it make a clear error of judgment? (see below) ▪ Did the agency follow the necessary procedural requirements? § 706(d)(2) [( NW: don't worry about this] o Arbitrary and Capricious review applies to an agency’s initial promulgation, amendment, and rescission of a rule. MVMA v. State Farm o A court will reverse an agency action for inadequate reasoning if: State Farm (rescission of rule ( counts as informal rulemaking) ▪ Agency relied on factors Congress hadn’t intended it to consider ▪ Agency entirely failed to consider an important aspect of the problem ▪ Agency offered an explanation for its decision that runs counter to the evidence before the agency ▪ Reasoning is so implausible that it couldn’t be ascribed to a difference in view or the product of expertise o A court is justified to repeal a rule if there is no need to have the rule. Syracuse Peace Council

❖ Availability and Timing of Judicial Review: Reviewability o APA § 704 Actions Reviewable—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. Presumption of reviewability under APA.[10] EXCEPT: ▪ APA § 701(a)(1)—does not apply to the extent that the [organic] statute precludes judicial review; • Congress’ intent to preclude judicial review must be based on “clear and convincing evidence” of a contrary legislative intent Abbott Labs[11] • Inclusion of special judicial review provision does not by negative implication infer a congressional intent to preclude judicial review of agency action. o look to statutory scheme for additional evidence ▪ e.g., if scheme is complex and it only gives review to a small class of people, this is likely CCE of intent to limit review only to those classes. Block v. Community Nutrition Inst. • type of claim also matters (long-term effect of denying review: e.g., Bowen), particularly if it is constitutional ▪ § 701(a)(2)—The agency action is committed to agency discretion[12] by law. • Webster: law committed firing employees entirely to discretion of CIA director; therefore, no law existed against which to measure the director's action. Consequently, no review possible. (no law to apply) o The type of action the court is reviewing determines which presumption to apply: ▪ Agency action—use Abbott Labs presumption of reviewability. ▪ Agency inaction—use Heckler v. Chaney presumption of non- reviewability.[13] • Exceptions to Heckler’s presumption of non- reviewability: o Where Congress has provided guidelines and agency has ignored Congress’ guidelines. o Agency refusal to commence prosecution b/c of jurisdictional concerns. o Agency has “consciously and expressly adopted a general policy” that is so extreme as to amount to an abdication of its statutory responsibilities. • Norton: court will review inaction if complainant can show: o agency failed to take an action it was legally required to take; and o the action is a discrete act o Even if there is an express preclusion case, look to the nature of the legal challenge that P brings b/c there may still be judicial review if Congress didn’t intend to prohibit judicial review of the question raised, such as a constitutional issue. Johnson v. Robison (i.e., type of claim raise still matters where there is an express prohibition against judicial review) o Constitutional claims will NOT be excluded from judicial review unless there’s a clear indication from Congress.

❖ Standing o Is P object of the regulation? ▪ If P is an object of the regulation, Zone of Interest test does NOT apply b/c P has been injured-in-fact because P has suffered a legal (common law) wrong. Analyze using Constitutional restrictions of injury-in-fact, causation, and redressability. ▪ If P is NOT object of regulation, use the Zone of Interests test under the APA, which denies a right of review if the P’s interests are "so marginally related to or inconsistent w/ the purposes implicit in the statute" that it can’t reasonably be assumed Congress intend to permit the suit to protect those interests. (See Clarke.) o APA Standing: § 702: A person suffering legal wrong b/c of agency action, or adversely affected or aggrieved by agency action w/in the meaning of a relevant statute, is entitled to judicial review thereof. ▪ Whether the P alleges that challenged action has caused him injury-in-fact, economic or otherwise. ▪ Whether the interest sought to be protected by the complainant is arguably w/in the zone of interests to be protect or regulated by the statute or constitutional guarantees in question. Data Processing • P doesn’t have to be intended beneficiary of statute so long as P has suffered injury in fact o Constitutional Restrictions • If the P is the object of the regulation, analyze using injury-in-fact, causation, and redressability. • If P is NOT the object of the regulation, but satisfies the zone of interests tests, P must still satisfy injury-in-fact, causation, and redressability requirements. ▪ Injury-in-Fact [purpose: ensure adversariness] • P must have a cognizable[14] injury & must be among the injured. o Do we really need this rule to weed out bad litigants? Won't people with a mere interest not want to spend the $ to file a lawsuit? • Can be aesthetic, economic, recreational, procedural injury + a concrete de facto injury to the plaintiff, not the public at large [see Lujan v. Defenders and FEC v. Akins] o FEC says procedural injury is enough (unlike Lujan) so long it is not abstract and indefinite; in other words, it must be "concrete and particular" ▪ Causation [purpose: ensures no advisory opinions[15]] • Courts only will redress injury that fairly can be traced to the challenged action of the D, and not from the independent action of a 3rd party. o There must exist an action to challenge, not a general policy one wishes changed. Lujan v. NWF • P has standing if their injury in fact is fairly traceable to the govt's actions, even if there’s a 3rd party between the P and gov’t in the causal chain. o Look for coercive/non-coercive (encouragement of) actions. Simon compared to Bennett[16] ▪ Redressability [purpose: ensures no advisory opinions] • If there’s no redressability, there’s NO standing. • The relief P seeks must reimburse the P for his injury in fact. o damages available o injunction available o civil penalties normally would NOT redress harm (Steel Company) o however, deterrence of ongoing injury using civil penalties does satisfy redressability. Friends of the Earth • P must prove future deterrence of D to obtain standing. o Likely v. merely speculative Friends of the Earth

❖ Ripeness o § 704—case can be reviewable if organic statute provides for pre- final review or there is no other adequate remedy in court. o Ripeness applies to all judicial review of administrative action. o Abbott Labs' two part pragmatic test for resolving ripeness issue: ▪ (0) Some scholars argue for a step zero for Abbott Labs: i.e., if the action is authoritative, then we move on in the inquiry; if it is not authoritative, then we stop. Shultz ▪ (1) Evaluate the fitness of the issues for judicial decision, and • Nature of judicial challenge is an abstract question of law (points toward ripeness). • Nature of legal challenge would benefit from further factual development (points away from ripeness). ▪ (2) The hardship[17] to the parties of withholding court consideration. • Does party have to take an immediate, affirmative action? ▪ Look to whether the agency’s action is the agency’s authoritative view (ripe) or a tentative position statement it intends to revisit (not ripe). Shultz. ▪ A regulation regarding awarding of gov’t benefits will likely never be ripe. Reno v. Catholic Services ▪ Non-final agency action will nearly always fail under Abbott Labs o Explicit provision for pre-enforcement review. NLRB Union ▪ where organic statute has specific provsion for pre- enforcement review and contains a statute of limitations, a party can only challenge the agency rule in two ways after the statute of limitations has expired: • ultra vires claim • petition for amendment of rule based on a substantive claim[18], and then appeal rejection of the petition (must raise exact issues in petition that you wish to appeal)



❖ Exhaustion: when a lawsuit brought to prevent agency proceedings o Exhaustion requirement may not apply to every legal claim regulated entity brings. ▪ Only imposed when court concludes agency should be involved by looking at entire statutory scheme & concluding that’s what Congress intended. ▪ Exhaustion not required for constitutional claims to administrative statute itself. Agency may not hear constitutional challenges to the statute that created it. o Parties must exhaust prescribed administrative remedies before seeking relief from federal courts. Bethlehem Shipbuilding ▪ policy behind using exhaustion requirement: • agency expertise • congress may have intended • saves judicial resources of regulated entities attempting to make end runs around the admin procedure ▪ counter argument against applying exhaustion: • save judicial resources of regulated entities o Doctrine of Waiver[19]: when lawsuit/court action occurs long after agency proceeding has closed/become unavailable ▪ party must raise all issues before an agency before it may contest them on appeal. ▪ Exception: McKart. If the gov’t commences judicial review of the claim, look to fact specific analysis: • Is the governmental interest compelling enough to outweigh the severe burden placed on individual? • Will allowing all similarly situated individuals to bypass administrative appeal procedure seriously impair the agency’s ability to perform its functions? ▪ why permit waiver in McKart? • Pure issue of statutory interpretation (no reason for agency expertise) • This is a criminal case which is brought by government (i.e., it is the state that has made the avoidance of the administrative process an issue) o i.e., no concern that McKart is attempting to avoid the admin proceeding the way Bethlehem did o Permissive agency appeal – Darby v. Cisneros (p. 1160) ▪ where statute does not require appeal of agency determination within an agency structure, but permits it, • exhaustion is not required in order to get into court

❖ Doctrine of Primary Jurisdiction—applies when a claim is originally cognizable in the courts & comes into play when enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed w/in the special competence of an administrative body. ▪ Deals w/ relationship between courts & agencies charged w/ regulatory duties—should court decide in first instance or the agency? • comes up where organic statute has no expression on who (court or agency) has jurisdiction over an issue [CL doctrine] ▪ what is nature of judicial action being brought and what are agency procedures available and how do they interact? • how necessary is agency expertise? • how important is uniformity in this area of public policy? ▪ Factors used in determining whether doctrine of primary jurisdiction should be invoked: ▪ Whether agency determination lay at the heart of the task assigned the agency by Congress. ▪ Whether agency expertise was required to unravel intricate, technical facts ▪ Whether, though perhaps not determinative, agency determination would materially aid court. ▪ Uniformity in the regulation of business.[20]

Index

Abbott Labs, 14, 16 adjudicative facts, 4, 5 affirmative misconduct, 7 agency inaction, 14 APA §553, 4, 6 APA §554, 4, 9, 10 APA §556, 4 APA §557, 4, 10 APA §701, 14 APA §702, 15 APA §704, 14, 16 APA §706, 11, 13 APA Standing, 15 Arizona Grocery, 7 Arnett v. Kennedy, 8 Article I, 2, 3 Article II, 2, 3 Article III, 3 atypical and significant, 8 authoritative interpretation, 12 Bailey, 8 Bi-Mettalic v. St Bd of Eq, 4 Bowen, 7, 14 Bowsher v. Synar, 1 Caceres, 7 canons of construction, 12 Cardoza Fonseca, 12 causation, 15 Chenery, 7 Chevron, 13 Chevron –, 12, 13 Christensen v. Harris Cty, 12 civil penalties, 16 Clarke v. Securities Ind. Ass'n, 15 cogent materiality, 5 Community Nutrition, 6, 14 Community Nutrition Institute (Block v.), 14 consistency, 7, 12 constitutional standing, 15 core functions, 2 Crowell v. Benson, 3 Data Processing, 15 DP balancing test, 8 Due Process, 4, 5, 8, 9, 10 estoppel, 7 ex post judicial remedy, 8 exhaustion, 17 expertise, agency, 3 expertise, of agency, 11, 12, 17, 18 explanation, 7, 13 FEC v. Akins, 15 formal adjudication, 10, 11 formal rulemaking, 4, 9, 10, 11 FPC v. Texaco, 5, 6 Friends of the Earth v. Laidlaw, 16 hard look review, 13, 14 Hard Look Review, 13 Heckler, 5, 14 historically protected, 8 inferences, primary, 11 inferior officer, 2 informal rulemaking, 4, 9, 13 injury in fact, 15, 16 INS v. Chadha, 1 intelligible principle, 1, 14 interpretive rule, 6, 12 interpretive rules, 6, 12 judicial review, 14, 16 legislative rule, 6, 12 legislative rules, 6, 12 legislative veto, 1 logical outgrowth, 5 Lujan v. Defenders of Wildlife, 15 Lujan v. G&G Sprinkler, 8 Mathews v. Elridge, 8 McKart v. US, 17 Misretta, 1 Morrison v. Olson, 2, 3 Myers v. US, 2 NA Cold Storage, 8 Nader v. Allegheny Airlines, 18 negative implication, 14 NLRB Union v. FLRA, 16 no law to apply, 14 nondelegation, 14 Norton v. Southern Utah Wild Alliance, 14 Nova Scotia Food Products, 5 Ohio v. DOI, 13 opinion letter, 12 Overton Park, 13, 14 paper hearing, 5 Perry v. Sindermann, 8 pre-enforcement review, 16 pre-enforcement review and s.o.l., 16 primary inference, 11 primary jurisdiction, 18 principal officer, 2 private right, 3 property, 8 purely executive, 2 redressability, 15, 16 removal power, 2, 3 removal questions, 2 Reno v. Catholic Social Services, 16 retroactivity, 7 ripeness, 14, 16 Roth (DP case), 8 Sandin v. Conner, 8 Schechter Poultry, 1 Schor, 3 Schweiker, 7 separation of functions, 4, 9, 10 Shalala, 6 Shultz (National Auto Laundry v.), 16 Skidmore –, 12 Southern Railway v. Virginia, 4 standing, 15, 16 standing (constitutional), 15 standing (under the APA), 15 standing under APA, 15 state employment, 8 State Farm, 13 stigma, 8 tariff ruling letter, 12 ultra vires, 16 Universal Camera, 11 vague and standardless, 1 waiver, 17 Webster v. Doe, 14 Weiner v. US, 2 Weyerhauser, 5 What process is due?, 8 Whitman v. Am Trucking, 1 Wilkinson v. Austin, 8 zone of interests, 15 zone of interests (arguably in), 15

----------------------- [1] NB: Schor decided two years before Morrison; key: the public/private rights distinction was not responsive to the reasons for separating the judiciary from the legislative and executive in the first place (i.e., in 1789). [2] NW: cannot be used as evidence in court; not entitled to FPC v. Texaco deference the way legislative rules are [3] NW: this test is more protective of an agency because discretion is not a factor, the way it was in Community Nutrition, which used the American Bus test. [4] I.e., if it is only property being taken, then post-deprivation process is sufficient (but also means that life and liberty deprivations must have pre-deprivation process) [5] NW: should not consider an individual claimant's ultra-delicate situation because this could screw everything up; just consider the typical claimant [6] NB: §557(d) prohibits ALL ex parte communications, while §554(d)(1) only prohibits ex parte communications re a fact in issue in the case the ALJ is hearing [7] NB: this ONLY MATTERS when agency and ALJ disagree [8] for use also with interpretive rules [9] for use also with legislative rules [10] this comes from Marbury which states that executive action (as long as it is not discretionary) can be reviewed by the courts; APA; common law tradition; Constitution. [11] e.g., "negative implication" argument is not sufficient by itself for CCE [12] i.e., there is no law to apply (Overton Park) (i.e., where agency can make its own decisions) ( how does this not violate the nondelegation doctrine? i.e., the intelligible principle component of the nondelegation doctrine? [13] NW: what is the main reason for excluding things from review? Judicial efficiency is the top reason, b/c a lot of agency decisions are trivial. [14] NW: i.e., not a mere interest because this ensures adversity ( which in turn ensures accurate decisionmaking because both sides get all the good information out so that a neutral 3d party (the judge) can make a good decision [15] decision on what law means without any practical affect on any person [16] In Simon, no standing in 3rd party lawsuit because IRS did not force Hospitals to turn away indigent patients; in Bennett, the Fish and Wildlife opinion forced the Bureau of Reclamation to hold back irrigation water. [17] NW: after looking at the cases for Ripeness, it is fairly clear that the HARDSHIP prong is the critical prong that will drive the determination of ripeness of a pre-enforcement challenge – i.e., is the party on the "horns of a dilemma"? [18] mere procedural infirmity cannot be challenged after statute of limitations period [19] Another exception not discussed in case book is the constitutional claim, since federal courts always have jurisdiction over constitutional claims [20] NW: the two important things are Expertise and Uniformity. E.g., under Nader, the court is expert at determining fraud cases and there is no uniformity concern because the issue is whether Nader was defrauded because the airline did not disclose its overbooking practices to him NOT whether the practice itself is wrong. The elements of deception ARE NOT the same as the elements of CL tort of fraud.

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