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ADMINISTRATIVE LAW

[placeholder for FDA v. williams]


constitutional status of the "fourth branch"
I.
art. I constraints on agency law-making: "non-delegation"
a. agency is creature of cong --> now power to act until cong confers power on it
i. Const. art. 1, 1: "all legislative powers...shall be vested in a Congress of the
United States."
ii. Const. art. 1, 8: N&P clause
b. non-delegation principle: statue amounts to or effects a delegation of legislative
power if scope of grant too broad or if vests too much discretion in executive -->
effect is cong abdicating constitutional responsibility by giving away lawmaking
powers
c. short-lived non-delegation doctrine
i. schecter poultry v. united states (1935) (42) finding national industrial
recovery act unconstitutional b/c president has too much discretion in deciding
whether industry codes would promote "fair competition"
1. no procedures for determining what's meant by unfair (constrain
agency discretion)
2. broad scope (nothing inherently limiting application) --> concentrate
too much power in agency
3. cong can't abdicate or transfer to others the essential legislative
functions w/ which its vested
ii. policy
1. political accountability
a. no deliberation or reason to explain actions
i. ensure deliberative democracy
b. no opp. for cong's input
2. no participation through public comment or adversarial process
3. commitment to dual-branch law-making
d. j.w. hampton v. united states (1928) (42) "if cong shall lay down by legislative act
an intelligible principle to which the person or body authorized to take action is
directed to conform, such legislative action isn't forbidden delegation of legislative
power"
i. note: read text of statute closely to identify intelligible principles / sources of
discretion
ii. note: delegation of power to private individuals not non-delegation problem
--> generally permitted
e. the benzene case (OSHA workplace safety case) (1980) (50) finding that chemical
safety law requires stds that "most adequately assures, to the extent feasible, on the
basis of the best available evidence, that no employee...suffers material impairment of
health or functional capacity..." & that are "reasonably necessary or appropriate to
provide safe or healthful employment" requires chemicals meet substantial health risk
threshold before regulation
i. feasibility --> technical, economical & (sometimes) administrative
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ii. construe statute to require threshold finding


1. assume cong reasonable (don't want to bring industry to knees)
2. aggressive statutory interpretation to reduce agency power
a. avoids non-delegation doctrine (constitutional avoidance
canon)
i. increases agency accountability by constraining /
specifying decision-making criteria & providing rule
that can be enforced
iii. note: textual interpretation + avoidance canon
iv. note: case confuses amount of power granted to agency w/ intelligible
principle
v. note: bad agency reputation may increase ct's skepticism
vi. DIS (Rehnquist) strong non-delegation doctrine
1. whole statue unconstitutional b/c lacks intelligible principle -->
delegation doesn't have standards
a. discretion increased where competing statutory values (e.g.,
safety v. feasibility)
b. statute must have determinant guidance
i. cost not concern just specificity of guidance
2. fundamental policy choice needs to be made by cong
f. intelligible principle (agency discretion) solutions
i. judicial interpretation
ii. agency decision-making procedures
g. amer. trucking v. EPA (2001) (69) finding that cost may not be considered when
EPA sets NAAQS under CAA b/c statute allows agency only to consider whether
standards "requisite to protect public health" w/ an "adequate margin of safety"
i. delegation well w/in realm of what's permissible --> SCOTUS almost never
second-guessed cong w/r/t permissible degree of policy jdgmt left to those
applying or executing law
1. e.g., "unduly or unnecessarily complicated," "generally fair &
equitable," "public interest" satisfy intelligible principle
a. must lack all guidance to create problem
ii. scope of power less important than intelligible principle, but where power
greater, need for intelligible principle increases
iii. note: lack of discretion seems to satisfy Rehnquist benzene dissent:
1. policy jdgmt clearly made by cong
2. lack of competing criteria limits agency choices
iv. note: lower ct misapplies intelligible principle doctrine --> looks at statute &
lack of "determinant" agency guidance
1. remands to agency to improve guidance, but non-delegation focused
on grant of authority from cong --> agency can't cure non-delegation
problem
v. statutory analysis tools:
1. textual:
a. expressio unius: omission of $$ from section important b/c
included elsewhere
2

II.

b. assume reasonable cong made policy jdgmt


2. legislative history: cong made conscious decision w/r/t $$
3. assume good gov't: presumption cost can be considered when statutory
silence
vi. contrast w/ benzene:
1. CAA better drafted statute:
a. lang more determinant
b. more evidence of congressional intent
2. $$ not imposed directly (states impose $$ through implementation
choices)
3. other sections provide specifically for CBA
4. procedural restrictions on EPA: complex RM'ing process for setting std
5. EPA more credible agency
vii. note: terminology debate --> delegate lawmaking power? or simply enforcing
laws?
h. functional approach to intelligible principle:
i. cong must make core decision (intelligible principle)
ii. constrain agency action --> s/t to measure agency action against
1. if more power need more intelligible principle
a. else may promote aggressive statutory interpretation to avoid
constitutional problem
b. where limited agency discretion, need less of an intelligible
principle
i. agency actions re: non-delegation
i. impose self-constraints (develop procedures, criteria, etc.)
ii. ask cong for more specificity
j. delegation rationale:
i. political protection
1. appear responsible to constituents but avoid accountability
2. claim victory when convenient, otherwise scapegoat
ii. only way to pass needed legislation --> compromise w/ vague legislation
iii. president is elected --> can hold agencies somewhat accountable
iv. technical expertise
1. agencies better positioned than cong to make complex decisions
v. cong can constrain agency actions (pass new statutes)
vi. judiciary willing to let cong delegate power
k. summary:
i. intelligible principle
1. statutory language
2. accountability
3. cong policy determination
ii. benzene & amer. trucking --> NDD lives on as interpretive canon
art. III constraints on agency adjudication
a. Const. art. III, 1: "the judicial power...shall be vested in one supreme court & in
such inferior courts as congress may from time to time ordained & establish. the
judges..shall holder their offices during good behavior &
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shall...receive...compensation, which shall not be diminished during their continuance


in office"
i. assumes independence of judiciary
ii. power extends to all cases in law & equity
1. but early delegation to administrative cts for veteran benefits
determinations
iii. major concern = undermining core judicial power
b. "public rights": can be adjudicated by agency entirely (subject to due process
challenge)
i. issues b/t gov't & citizen
ii. stems from public law
iii. w/ sovereign immunity no concern about displacing traditional art. III role b/c
it needs to be waived before individuals can sue anyway
iv. longer history of administrative claims resolved through non-art. III
adjudication
c. "private rights": must be adjudicated / reviewed by cts (need judicial supervision)
i. issues b/t private individuals
ii. stems from CL
iii. important to cts' constitutional role
d. agencies delegated judicial functions
ALJ
-

fed ct
-

expertise in substance
partiality
o responsive to agency policy /
precedent
o politically accountable (e.g.,
appeal to agency head)
low cost
efficiency
uniformity of decisions
sensitivity to statutory schemes

expertise in law
impartiality
prevents concentration of powers
protects individual rights

e. judicial review of agency adjudications limits judicial power exercised by agencies


f. murray's lessee v. hoboken island & improvement co. (1856) (173) cong can't limit
judicial power over CL, equity or admiralty suits (private rights)
g. crowell v. benson (1932) (168) finding that agency can adjudicate workers'
compensation claims against employer under harbor workers compensation act even
where statute merely codifies CL claim of negligence & that parties do not need to relitigate claims on appeal to fed cts
i. cong may delegate judicial power to judicial or executive branches
1. agencies may adjudicate private rights, subject to judicial review, esp.
for actual legal conclusions, not just fact-finding --> don't need to be
fully re-litigated before reviewing court
a. maintain judicial role / separation of powers
4

b. assume cts handle CL claims better


2. agencies must ensure DP given in agency proceedings
a. e.g., oral hearings, cross-examination, opportunity to present
arguments
b. enhances accuracy of findings, limits deprivation of rights
ii. judicial review standard:
1. cts review Qs of law de novo
2. cs review Qs of fact under substantial evidence std (some room for
agency error)
iii. note: jdx + fundamental facts --> reserving right for cts to review some
factual issues de novo
1. distinction b/t statutory & jdx/fundamental facts not as important now
a. exceptions: citizenship claims, search & seizure cases, etc.
i. fundamental rights really important
ii. fact-finding may affect legal conclusions
iii. ensures law fairly applied
2. DIS (Brandeis)
a. no reason for cts to treat constitutional facts differently; should
still defer to agency findings in first instances
b. only constitutional role is for courts to review agency
decisions, subject de novo fact-finding for due process
concerns
i. otherwise shouldn't permit de novo trial when appealed
to fed cts
iv. balance b/t supervision & agency / judicial efficiency
v. note: lifts some art. III limits on agency adjudication
1. cong may delegate adjudicator functions to agency if there is judicial
review to ensure agency followed law & found facts in reasonable
manner
h. note: agencies adjudicate private rights, subject to judicial review
i. note: cong not obligated to provide judicial review of public rights or obligations
(e.g., social security, taxes) (though note schor's functional approach, replacing the
private / public rights distinction)
j. northern pipeline constr. v. marathon pipe line co. (1982) (174) finding that cong
could not allow agency judges to "decide all legal controversies arising in or related
to bankruptcy proceedings" e.g., state law contact claim w/o violating art. III
i. distinguishing crowell
1. private rights
a. private right created by statute (not subject to stringent art. III
constraints)
b. CL or state private rights (subject to art. III constraints)
2. pure public rights: b/t individual & gov't
3. more agency supervision in crowell
a. here, bankruptcy ct can enforce own orders (looks more like
art. III ct)

k.

l.
m.

n.

4. here, agency has larger scope of subject matter authority (can hear
more claims)
5. here, weaker standard of review
ii. note: must have sufficient judicial review of agency adjudication to be
constitutional under art. III
note: now 3 types of rights
i. public rights
ii. statutory private right
iii. CL private right (can't be adjudicated exclusively by agency; traditionally art.
III territory)
CON (Rehnquist)
i. state law claims too traditionally art. III in nature for agencies to hear them
thomas v. union carbid agricultural products (1984) (177) finding that where
private right created by statutory scheme regulating pesticides, agency may adjudicate
claims b/t private parties, subject to very limited judicial review
i. identity of parties alone can't determine whether art. III requires ct
adjudication
1. creation of right by broad, regulator scheme most important
consideration --> treat essentially as public right
2. functional reasons for agency to resolve technical, specialized dispute
modern approach:
i. commodity futures trading comm'n v. schor (1986) (175) finding FTC can
adjudicate state law K claims b/t private parties when issue arises as C/C
when P brings claim against broker under commodities exchange act
1. functional analysis: 4 factor test for private right
a. personal interests: assess w/r/t maintaining individual rights
extent to which parties can have claims decided by judges free
from domination of other branches of gov't (waived in schor)
i.e., whether Ps given choice to access art. III cts
b. structural interests: assess w/r/t maintaining independent
judiciary
i. extent to which essential attributes reserved to art. III
judges
ii. extent to which non-art. III forum exercises
jurisdiction/powers typically reserved to art. III courts
iii. origins / importance of right to be adjudicated
iv. congressional concerns did cong mean to emasculate
judiciary?

RM'ing & adjudication: constitutional limits


I.
RM'ing & adjudication procedural limits
a. organic statutes
b. APA
c. fed CL requirements
d. adjudication triggers constitutional (DP) requirements (e.g., hearing); RM'ing (quasilegislative) does not
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II.

i. hearing purposes:
1. promote fact-finding accuracy
2. secure agency conformance to statutes
3. enhance quality of policy jdgmts
4. permit affected persons to have say
5. facilitate judicial review
DP requirements
a. londoner v. denver (1908) (502) (adjudicatory) finding that DP required that
property owners have opportunity for oral hearing before tax board approved
assessments to cover the costs of paving street
i. decision affects small #'s of people
ii. affects present legal rights
iii. individual interests at stake
iv. possess special knowledge w/r/t specific issue
v. adjudicatory in nature: applying legal standards to facts
b. bi-metallic investment co. v. state bd. of equalization (1915) (502) (legislative)
finding that DP not violated when state tax comm'n put in force across-the-board
property tax increases in denver w/o holding public hearing for affected property
owners
i. impractical to hear from all affected parties
ii. individuals less likely to have useful info w/r/t decision at issue
iii. decision is forward-looking, prospective
iv. public interest --> increased accountability through political process
v. increased accountability through legislative process
vi. separation of powers (reduce judicial interference w legislative branches)
vii. quasi-legislative in nature: broadly applicable, prospective rule
c. note: in adjudicatory settings, cong can't bar hearings or judicial review, though may
shape contours
d. note: DP rights N/A in quasi-legislative settings b/c legislative process provides all
process that is due

administrative procedure act & agency functions


I.
APA forms of agency action
a. RM'ing:
i. rule: agency statement of general or particular applicability & future effect
(presumably w/ some binding legal effect) ( 551(4))
ii. RM'ing: agency process for formulating, amending or repealing a rule (
551(5))
1. formal (520):
a. process similar to formal adjudication --> extensive,
burdensome
i. but broadly applicable / for quasi-legislative facts
ii. may be more expedited than form adjudication (521)
2. informal (519):
a. no hearing required
b. notice published in fed reg
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c. opportunity for public comment


d. publication of final rule w/ explanation of "basis & purpose"
b. adjudication: everything that's not RM'ing
i. order ( 551(6)): whole or part of final disposition, whether affirmative,
negative, injunctive, or declaratory in form, of any agency in a matter other
than RM'ing (including licensing)
ii. adjudication ( 551(7)): agency process for formulating order
1. procedural req'ments (513-19)
2. formal: authorizing legislation must provide for decision "on record
after opportunity for hearing"
a. extensive trial-type proceedings:
i. pre-hearing notification requirements
ii. discovery (less extensive) (may not be available per
APA, but through agency regs & FOIA) --> subpoenas
may be used to compel witnesses, etc.
iii. hearing: ALJs, counsel, witnesses, etc.
1. evidence presentation, x-exam permitted, but
limited evidentiary standards (e.g., rule of
nonduplication)
iv. burden of proof: proponent of rule / order
v. post-hearing: statement of findings & reasons for
conclusion
1. recommended decision --> agency will consider
ALJ, but will make its own decision
2. initial decision --> ALJ decision binding unless
appeal to agency itself or review body in agency
3. appeal / final decision --> no deference to ALJ
required, but still needs to set forth statement of
conclusions & supporting reasons
3. informal: everything else
a. relatively little APA required procedure (e.g., permit
representation by counsel; make brief statement on grounds for
denying request)
b. agency may provide own supplemental procedures --> often
complex to avoid problems if challenged
c. note: but may be other requirements e.g., DP
c. note: authorizing statute may preempt APA procedural requirements
d. note: review standards (APA 706)
i. A/C --> RM'ing & adjudication
ii. formal decisions (RM'ing & adjudication) also require "substantial evidence"
std

RM'ing

organic statute requires decision on "record" after


opportunity for "hearing"?
Yes
No
formal RM'ing
informal (N/C) RM'ing
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adjudication

II.

III.

- 553(a),(b),(d),(e)
- 556
- 557
formal adjudication
- 554
- 556
- 557

553

informal adjudication
- essentially no APA
procedures

triggering formal RM'ing & adjudication


a. formal RM'ing: "on the record after opportunity for hearing"
i. united states v. florida east coast ry (1973) (545) finding that "hearing"
requirement in rate-setting process under interstate commerce act doesn't
trigger formal RM'ing under APA & qualifies as RM'ing, not adjudication
1. organic statute must have magic words: "on the record after
opportunity for hearing"
2. interstate commerce act hearing requirements construed narrowly:
a. need not be oral hearing --> can be paper-hearing only if not
otherwise specified in organic statute (see APA 553
requirements)
b. functional reading --> would create more work for agencies,
interfere w/ decision-making
3. agency decision = RM'ing
a. DP requirements not as stringent
b. more legislative facts (general) than adjudicative facts
c. affects large # of entities
d. alternative options for individuals to raise concerns (e.g.,
political process more effective)
e. prospective application
f. not resolving disputed facts of specific controversy
b. formal adjudication:
i. dominion energy bayton point v. johnson (1st. cir. 2006) (511) finding that
"public hearing " requirement in CWA for NPDES variance requests didn't
mean that agency required to follow formal adjudication procedures under
APA when organic statute doesn't invoke magic words: decision on record
after hearing
ii. note: pre-dominion energy, cts more willing to find formal adjudication
requirements based on textual considerations, DP concerns & congressional
intent
1. now magic words in APA required: "on record after opportunity for
hearing"
a. where imposing sanction or liability, cts may be more likely to
find hearing requirement (DP background norm)
authority to make rules
a. agency can engage in RM'ing (and adjudication) only to extent authorized by statute
i. RM'ing scope determined by statute:
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IV.

1. e.g., sanctions, stds of conduct, rules for implementing statute,


interpret statute, catchall provisions ("such regulations as necessary to
carry out purposes of statute")
ii. nat'l petroleum refiners assoc. v. FTC (DC cir. 1973) (522) finding that FTC
has RM'ing power b/c authorized to "make rules & regs for purpose of
carrying out " specified provisions of statute, which included adjudication-like
process for achieving statutory goal: "prevent...unfair method of competition
in commerce & unfair or deceptive acts...in commerce" (gas station octane
labeling case)
1. functional reasons for ignoring statutory focus on trial-type
proceedings i.e., finding substantive, not just procedural, RM'ing
authority:
a. increases agency efficiency / ability to achieve statutory goals
b. may facilitate judicial review of rule (limited # challenges
rather than challenges whenever rule enforced); & creates
record
c. allows increased public participation / consideration of
information
d. fairer to regulated entities by not singling them out for
compliance while leaving others free to act outside
requirements
2. note: functional counter-arguments
a. entities can still challenge application of rule (slows down
rule's actual effect)
b. cong may not have intended for RM'ing to be permitted
3. note: dependent on relationship to adjudication, RM'ing may be
preferable
a. e.g., regulated entities & regulatory beneficiaries can't
participate in adjudication, so views not considered
i. but regulated entity in adjudication may have greater
opportunity present views / info
ii. cong may prefer informal RM'ing b/c ex parte contacts
permitted
b. but can't rule be challenged once implemented?
i. set of challenges more limited?
choice b/t RM'ing & adjudication
a. competing considerations
i. procedures
ii. degree of agency commitment to new policies
iii. retroactivity/prospectivity
iv. scope of judicial review
v. consistency / uniformity v. individuation
vi. clarity & publicity
vii. fairness to parties in adjudicative proceedings
viii. skewing outcomes (selective adjudication to push policy)
ix. planning (adjudication provides agencies less control over planning)
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b. RM'ing & later adjudicatory hearing rights (effect of RM'ing on later adjudicatory
rights)
i. agency choice may be limited by organic statute & possibly APA (esp. when
RM'ing affects adjudicatory proceedings, but otherwise limits relatively nonexistent)
ii. RM'ing rather than adjudication
1. FPC v. texaco (1964) (539) finding that requirement for "hearings"
for gas supplier applications under natural gas act didn't trigger
requirement for oral hearing when applications were not in
conformance w/ earlier RM'ing excluding applications w/ suppliers'
proposed terms
a. RM'ing can streamline hearing requirements, limit substantive
scope of what must be considered
b. more functional for agency to use RM'ing rather than case-bycase decisions to establish particularized, but broadly
applicable, standard implementing statutory requirements
c. note: appears to have been waiver provision where individuals
could have challenged rule's application to them
2. note: line of cases where RM affects scope & procedure of hearings
--> impact on adjudicatory proceedings
a. rules may be challenged as applied to hearing / adjudicatory
requirements under statute
3. heckler v. campbell (1983) (541) (social security grid case) finding
that agency hearing can incorporate rule that determines whether
disability applicant could in fact find work by matching individual's
qualifications with types of work that rule designates as presumptively
in existence (based on vocational expert testimony) w/o the need for
additional evidence presented at hearing w/r/t job availability
a. whether job exists = general fact issue doesn't require case-bycase determination (not unique to each claimant)
b. retain option to provide more individualized hearing if claimant
don't match grid qualifications
c. gov't functionality: efficiency / uniformity / consistency
outweighs individuals interest and reduces arbitrariness of
hearings
d. rule not A/C
e. statute grants agency power to issue rules & rules issued
properly
f. note: mass justice issue
4. amer. hospital assn. v. NLRB (1991) (543) "even if statutory scheme
requires individualized determinations, the decision-maker has the
authority to rely on RM'ing to resolve certain issues of general
applicability" subject to cong's contrary intent
5. but see sullivan v. zerbly (1990) (544) finding that exclusive list of
conditions that would entitle children to disability benefits could not
be relied on in agency hearing b/c (1) regs didn't include some
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conditions or combinations thereof that would disable a child & (2)


regs didn't provide for 2nd stage inquiry of functional capacity,
comparable to inquiry of adult's capacity to engage in gainful
employment, thereby failing to implement fully the disabled child's
disability entitlement --> possibility that child could submit actual
proof of disability & if needed, obtain judicial review, too burdensome
on claimant
a. note: arguably need at least some opportunity for
individualized examination in hearing setting even if rules
streamline process for generally applicable determinations
i. important to determine where, if any, individualized
proceedings might be more appropriate
ii. compare w/ heckler v. campbell where 2nd stage
inquiry if claimant didn't match "grid"
b. note: role of entitlement may be doing some work here
6. airline pilots assn. int'l v. quesada (Tab F) finding that lack of
hearing when FAA promulgated rule barring pilots over 60 years old
from flying commercial airlines didn't violate APA or statutory hearing
requirements or DP
a. RM'ing doesn't lose its character even though it alters existing
rights or violate DP rights w/o holding a hearing for each
affected party i.e., RM'ing may affect changes to rights &
obligations that may also be altered through adjudication
b. airline statute refers to regulations & to orders separately,
signaling separate treatment
i. cong intended administrator to have broad RM'ing
powers
ii. complex procedural requirements in statute
incompatible w/ purposes of act --> promoting airline
safety
1. only make sense when adjudicating modified or
revoked individual pilot certificates
2. functional argument: here over 18,000 airmen
affected
c. rule not A/C
i. considerable factual support --> not ct's role to weigh
conflicting evidence so long as decision minimally
reasonable
d. no DP problem: large group of people have recourse to
political process
7. amer. airlines v. civil aeronautics board (DC cir. 1966) affirming
texaco's principles --> can't impose adjudicatory requirements instead
of RM'ing where no specific individual interest at issue even when
rule would affect existing rights
c. constraints on policy-making through adjudication
i. considerations:
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1.
2.
3.
4.

fairness
notice
retroactivity
precedential value --> adjudication has stare decisis value
a. rule subject to later modification (but may have more notice)
ii. SEC v. chenery II (Tab G) whether SEC properly denied in an adjudication a
reorganization plan for publicly owned utility holding company for a second
time based on statutory standards that SEC failed to invoke in previous
decision that was rejected by SCOTUS
1. adjudication doesn't provide parties w/ advance notice of "rule" but
statute should give fair warning
2. retroactive effect:
a. limited to parties to dispute
i. 3rd parties can't participate in matter, but may still
benefit from resolution of specific dispute (e.g., SHs v.
mgmt)
b. penalty tough, but not massive
c. all cases of first impression will have retroactive effect
d. must balance retroactivity w/ statutory goals
e. not different than retroactivity problems faced by cts
3. agency needs flexibility --> can't always predict issues raise statutory
issues & case-by-case approach may be better (i.e., RM'ing not
always best option)
4. agency may address issues by rule or by adjudication: w/in informed
discretion of agency
5. note: reasoning consistent w/ post-APA cases: agency need not
substantiate reasons for choosing b/t RM'ing & adjudication & can
decide on either, subject to statutory restrictions --> cts only review
eventual final action
6. note: where agency adjudication overturned, usu. get second bite at
apple --> can correct errors
iii. note: most cases follow chenery's deference to agency procedures, but in some
instances, cts may set aside agency attempts to change policy through
adjudication where changes are deemed unfairly retroactivity
1. usu. involve change in standard of conduct previously imposed by
agency AND
2. involve penalties for conforming to such conduct
a. can be considered A/C under APA b/c violate important
expectations & basic principles of fairness
iv. NLRB v. wyman-gordon (1969) (Tab H) finding that adjudication could be
used to establish the excelsior rule, which generally requires employers to
furnish lists of employees eligible for voting in union formation vote, even
when the excelsior rule had been previously rejected b/c NLRB had given it
prospective effect rather than applying it to the parties i.e., it was considered
a RM'ing disguised as an adjudication

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1. OK to rely on prior invalid "rule," b/c would have reached same


conclusion anyway in this controversy
2. order applied to parties to dispute --> more adjudicatory flavor
3. CON (Black)
a. statute gives agency choice b/t RM'ing & adjudication
b. APA doesn't purport to require RM'ing or adjudication in any
situations --> simply lays out procedural requirements in both
cases
c. but "rules" through adjudication must be responsive to / have
some connection w/ issues before agency
4. note: excelsior rule invalidated in part b/c didn't seem derivative of
particular dispute
a. procedures in case were RM'ing-like (e.g., inviting 3rd party
participation)
b. issues may have been more generalized, prospectively applied
5. note: narrow w-g reading: adjudicatory "rule" will be upheld as long
as applied retroactively
6. note: broad w-g reading: as long as proper procedures followed &/or
apply retroactively, can announce "rule" through adjudication
7. note: adjudicatory decisions only rule-like insofar as they have stare
decisis effect
v. NLRB v. bell aerospace (1974) (537) finding that NLRB had authority to
change precedent through adjudication by reclassifying "buyers" as nonmanagerial employees & thus forcing their employers to bargain w/ union
selected buyers
1. reads chenery II & wyman-gordon to allow agencies to announce new
principles in adjudicative proceedings & that choice b/t RM'ing &
adjudication lies w/ agencies (when no contrary statute)
2. difficult for agency to come up w/ generalized rule in this context -->
buyers duties vary widely based on industry, so can't prescribe general
classification for all of them
a. adjudication more useful than RM'ing
3. procedurally consistent w/ adjudication: adversarial, clear conflict b/t
limited parties
4. retroactive application of "rule"
5. note: seems to contemplate in dicta possibility that retroactivity may
present fairness (DP) problems when:
a. new liability imposed for good faith reliance agency
pronouncements AND/OR
b. large fines or damages
vi. note: APA 554 provides for some participation in adjudications by interested
parties
vii. morton v. ruiz (1973) (tab I) overturning BIA decision in informal
adjudication to exclude "off-reservation" indians from unemployment benefit
eligibility where decision based on questionable statutory interpretation

14

V.

purportedly affirmed by appropriation of monies premised on long-standing


BIA policy contained in unpublished agency manual
1. unusual to argue that appropriations (esp. their legislative history)
affirm substantive interpretations
a. but may rely on post-enactment statutes generally
2. BIA violated internal procedures by not publishing substantive rule
(eligibility criteria in manual) in FR
a. eligibility criteria look rule-like, so must follow applicable
procedures for promulgating them
i. note: but benefits not subject to APA 553RM'ing
requirements
b. BIA also constrained itself to follow APA procedures for
RM'ing for benefit disbursements, so decision to announce
"rule" through adjudication seems somewhat A/C where not
following internal procedures
i. note: not straight APA case, but suggests that when
internal regs require RM'ing for certain issues, agency
can't make policy changes through adjudication when
related to those issues
3. other concerns:
a. lack of notice
b. BIA inconsistency w/r/t to policy makes decision look arbitrary
c. BIA informal adjudication really informal (e.g., no appeal,
published opinions, etc.), so not sufficiently court-like
d. BIA has bad reputation (background concern)
4. note: vague limits on adjudication
a. can't use adjudication when placing limits on benefits
eligibility for disadvantaged group w/ whom gov't has trust
relationship
b. can't base decisions on unpublished manual
c. can't affect rights/ make substantive decisions w/o at least some
meaningful procedures
d. must follow internal procedures
viii. summary note: agencies have discretion to choice RM'ing or adjudication
(bell aerospace, chenery, airline pilots) subject to some limits (wyman-gordon
I, morton)
1. RM'ing may be inappropriate for some adjudicative settings (sullivan)
informal "notice & comment" (N/C) RM'ing
a. background: pre-APA judicial review of RM'ing
i. as result of florida east coast, most RM'ing informal
1. but lack of record requirements made challenges / review of rules
difficult
2. proliferation of RM'ing increases concerns
ii. pac. states box & basket co. v. white (1935) (tab J) upholding state
regulation enacted pursuant to statute governing fruit container dimension

15

requirements when able to find "any facts that can reasonably be conceived
that would sustain it"
1. presumption that regulations valid
2. administrative agency need no make specific findings w/r/t to
regulation i.e., don't need to justify its reasonableness when
promulgated, so long as w/in scope of statute
a. ct doesn't look at actual reasons just conceivable ones
3. very limited judicial review of agency RM'ing
a. DP challenges only require rational basis for regulation to
survive (very deferential)
4. note: pac. states still good law, though underlying policy concern
addressed by APA & subsequent case law
b. judicial CL of informal RM'ing
i. informal RM'ing competing considerations: accountability v. efficiency
ii. judicial review solutions to informal RM'ing reviewability issues:
1. allow challenges to rule during enforcement proceedings
2. create "paper hearing " requirements
iii. note: APA 706 doesn't explicitly require agency to develop record (other
than concise general statement in APA 553), though requires review of
actual reasons provided by agency for decision
iv. united states v. nova scotia products corp. (2d cir. 1977) (552) finding that
agency's failure to disclose relevant material for public comment & failure to
provide responses to "major" comments was grounds for finding smoked fish
botulism rule promulgated by FDA to be A/C based on limited decisionmaking provided
1. policy-driven interpretation: under 706 court will only review record
produced by agency during decision-making process
a. limits post hoc rationalizations
b. incentive for agency to produce record
i. decisions look more A/C if made based on off-record
considerations
2. widely accepted judicial gloss on APA: agency must give
contemporaneous cogent reasons for policy --> looks more rational
3. strengthens 706 judicial review
4. note: RM'ing now includes "paper hearing"
5. note: procedural requirements
a. must respond to major comments
b. must provide relevant material to public for comment, so they
can respond while agency still considering matter
v. note: policy concerns re: disclosure / comment requirements
1. improves accountability
2. reduces arbitrariness of decisions
3. enhances legitimacy of rule & agency
4. but could slow agency processes (ossification), thwarting agency
purposes
5. but technical RM'ing now driven by attys
16

vi. note: where record is incomplete, judicial remedy is to remand back to agency
for further consideration / rule development
vii. whether agency can change rule during RM'ing (b/t proposed & final rules)
1. long island care at home v. coke (2007) (565) finding that final rule
providing larger exemption from companionship workers being
covered by fair labor standards act was "logical outgrowth" of
proposed rule w/ narrower exemption
a. APA 553 requirements for publishing notice of proposed
RM'ing only require that final rule be "logical outgrowth" of
"terms or substance" of proposed rule
b. changing scope of exemption was "reasonably foreseeable"
when RM proposed
2. note: logical outgrowth rule functional (balances notice concerns w/
burden on agency if it had to restart RM'ing)
3. note: cts disagree on whether baseline should be notice of proposed
RM'ing (NPRM) or proposed rule
a. comments themselves not sufficient notice (i.e., fact that some
commentators anticipated rule change not enough --> needs to
be contemplated in proposal/notice )
4. note: american med. assn. v. united states (7th cir. 1989) relevant
inquiry is whether parties affected put on notice that "their interests
were at stake," not whether specific content of rule would benefit /
harm them
5. note: when lack of notice, burden on agency to show rule is "logical
outgrowth" & all relevant objections to final rule had already been
given sufficient attention; challenge must then show it would have
submitted arguments not before agency had it been given opportunity
6. note: tension b/t "logical outgrowth" rule & need to create meaningful
process, so some agencies use ANPR (advanced notice of proposed
RM'ing) to solicit early input on rule development
viii. vermont yankee v. NRDC (1978) (560) finding that agency granting of
nuclear power plant license not based on improperly promulgated rule that
precluded consideration of environmental issues during adjudication over
license for certain types of power plants (NRDC wants to reexamine report
rule based on)
1. APA & other statutes set max requirements, not min, for agency
procedures (though agencies can impose more if desired)
2. rule relied on during adjudication not improperly promulgated
3. note: case leaves room for finding A/C when procedures inadequate,
but doesn't spell out when procedures inadequate
4. note: important result is that judge-made requirements for agency
proceedings displaced by APA (except nova scotia & constitutional
req'ments)
ix. note: should judges evaluate substance of decisions?
1. technical incompetence
2. limits finality
17

3. promotes agency uncertainty (hard to plan, since don't know what cts
would require)
4. interferes w/ cong's jdgmts (separation of powers concern)
5. but may limit agency discretion / enhance accountability
6. procedural expertise cuts both ways
x. note: subject to "compelling circumstances," agencies need not use additional
procedures beyond those specified in APA or other relevant statutes
1. APA precludes additional procedures
2. alternative would create agency uncertainty
3. alternative would allow cts to manipulate procedural requirements to
control policy decisions properly made by agencies
xi. note: "compelling circumstances" alternative hasn't been developed by cts
xii. note: procedural limits on RM'ing
1. APA 553, organic statutes
2. nova scotia exception (record development)
3. agency's own rules
4. EOs
5. constitution
xiii. challenges to rules & adjudications
1. rules: can challenge rule substance & procedure
2. adjudications: can challenge procedure, but not "rule's" substance
i.e., can challenge rules relied on during adjudication
c. e-RM'ing
i. enhanced participation opportunity
1. who participates?
2. what types of comments?
3. what's being done w/ them?
ii. hard to determine effect of e-RM'ing
1. comments take time/ $ even for easier issues
2. individual free-riders
a. lots of comments doesn't mean more substance
3. still driven by special interests (e.g., most comments dominated by
business except for highly visible rules)
iii. technical v. democratic nature of comments
1. even if comments not technical, can still reflect public values -->
enhances civil republicanism?
a. but agencies more responsive to technical / sophisticated
comments (which implies business interests, b/c have resources
to solicit these comments)
2. not clear how democratic N/C process supposed to be --> agency
purpose to ignore politics
3. unclear whether anonymity of comments improves or degrades their
quality
4. agencies provide lukewarm responses to mass public comments: (1)
not a vote; (2) don't keep track of comments; or (3) no response

18

VI.

(substance, not volume, determines what agency needs to respond to


under nova scotia)
5. agency response to comments may depend on whether rule valuebased or technical
d. RM'ing ossification
i. consequences of increased procedural requirements / judicial review of
informal RM'ing
1. improves agency decision-making by exposing to criticism
2. improves democratic accountability of agency
3. very burdensome; slows down RM'ing process significantly
a. (but this observation largely anecdotal)
ii. solutions?
1. direct final RM'ing: for non-controversial rules, skip N/C process &
publish final rule along w/ statement of its basis & purpose, &
provision that rule will take effect at future date --> if no objections,
rule stands
a. not direct final RM'ing subject to judicial review, so don't know
if legal (e.g., APA 553 "good cause" exception)
2. interim final RM'ing: propose "final" rule & invite comments at same
time; rule stays final subject to modification or w/drawal based on
comments rec'd
a. in practice, interim final rules not replaced w/ "final final" rules
exceptions to N/C RM'ing: guidance docs --> interpretive rules & general policy
statements
a. overview: guidance documents (interpretive rules & general policy statements)
i. detailed suggestions re: what law requires
1. e.g., notice of agency enforcement plans
ii. need not be published in FR
iii. rare voluntary taking of public comments
iv. efficient to issue (in theory)
v. include waivers: not binding!
vi. promotes agency consistency
vii. promotes agency flexibility (allows adjustments over time)
viii. quasi-legislative rule v. guidance
1. traditional: if important & affects people, then rule
2. modern: rule must be new binding obligation / norm / entitlement
a. valid guidance may still have big impact & still not be rule
b. APA 553(b)(b) exemptions from N/C
i. interpretive rules
ii. general statements of policy
iii. rules of agency organization, procedure, or practice
c. american hospital assoc. v. bowen (DC cir. 1987) (577) involving placement by
HHS of specific terms in Ks w/ 3rd parties supposed to review whether doctors /
hospitals eligible for Medicare funds based on criteria specified by HHS in contracts
w/ 3rd parties but not subject N/C --> not direct regulation but substantial impact on
health-care providers
19

i. interpretive rules: merely clarify or explain existing law or regulations -->


essentially hortatory / instructional / explanatory & don't have full force &
effect of substantive rule
1. e.g., reminding parties of existing duties, construing statutory terms(?)
ii. general policy statements: tentative statements w/r/t future agency plans
1. can't have present effect; can impose any rights / obligations / binding
norm
2. must leave agency room to exercise future discretion
a. not mandatory language
3. agency's characterization of its own action is factor to consider
a. but waivers often boilerplate, so cts may (but don't have to)
look beyond plain language
4. e.g., agency statement as to natural gas supply priorities should some
shortage occur; guidelines on when to cite independent contractors for
violating safety stds
a. but, see, e.g., findings of non-policy statements: finding rule
where DOL changed statistical methodology for triggering
emergency job program; FDA's determination of "action
levels" for food producers
5. note: may have
iii. rules of agency organization, procedure, or practice: internal rules that ensure
agency organizational control over internal operations & don't affect rights /
obligations of 3rd parties, though may alter manner in which parties interact
w/ agencies
d. appalachian power v. EPA (DC cir. 2000) (580) finding that extensive EPA
guidance on monitoring requirements for stationary sources constituted a binding rule
i. incentive for agencies to pass broad, ambiguous regulations, then later impose
or alter requirements through interpretive policy
ii. when agency treats guidance like legislative rule i.e., bases enforcement
actions on it content & leads private parties to believe agency will declare
permits invalid if don't conform to guidance, then in practice, the guidance is
"binding" even where guidance contains disclaimer language
1. wide-spread compliance w/ guidance seems to be basis for concluding
it constituted binding norm
e. general statements of policy
i. community nutrition inst. v. young (DC cir. 1987) (581) ("aflatoxin" in corn
rule) finding that FDA "action levels" for enforcement proceedings based on
levels of aflatoxin in corn could not be considered interpretive rules b/c they
have present binding effects & appear intended to change regulated entities'
behavior
1. mandatory language in policy statement
2. policy exemptions (more like rule)
3. FDA course of conduct seems to signify its binding
4. DIS (Starr)

20

f.

a. general policy statements can't be law (i.e., legally binding),


even if they have significant effect, b/c weren't promulgated
properly
i. if law, then enforcement hard to challenge
ii. if non-law, then agency must justify legal basis for
policy during enforcement proceedings --> e.g.,
offering reasons for why action level = prohibited
adulteration of food product
5. note: if policy statement considered "rule," then remedy is to
withdraw rule
a. if, under Starr approach, substantive policy still treated as
policy, then no need to withdraw
ii. professionals & patients for customize care v. shalala (583) (5th cir. 1995)
finding that FDA's non-exclusive list of nine factors that it would consider in
deciding whether to initiate enforcement actions was general policy statement,
b/c agency still retained discretion in deciding whether & how to apply those
factors
iii. united states telephone assoc. v. FCC (DC Cir. 1994) (583) finding that
agency's "exhaustive framework" for assessing penalties constituted rule even
though agency declared it retained discretion to depart from that framework in
actual cases --> agency's course of conduct almost never deviated from policy
statement's parameters
iv. note: policy considerations for general policy statements
1. regulated entities must make compliance calculation:
a. chance of prosecution
b. cost of prosecution
c. compliance costs
2. affect behavior, but parties can't comment upfront
3. eliminates range of procedures to hold agency accountable
interpretive rules
i. clarify or explain existing law, regulations, rights &/or duties --> DON'T
establish new binding norm
ii. note: can challenge interpretation as contrary to law, but no for violating APA
N/C procedures
1. policy-wise N/C procedures may be useful in clarifying ambiguities,
but cong contemplated providing agencies w/ flexibility &
interpretations seem judicial in nature (non-democratic)
2. can only challenge during enforcement proceedings
iii. amer. mining. cong. v. DOL (DC cir. 1993) (584) finding that "diagnosis" of
illness triggering potential liability for employer would be found when X-ray
results of employee met certain criteria was only an interpretive rule b/c
obligation to report specified illnesses were already in existence
1. interpretive rule factors:
a. binding norm already in existence
i. here, just drew "crisper & more detailed lines" for
authority already in existence
21

b. how agency views own actions


i. published in CFR?
ii. invoked general legislative authority?
c. whether rule amends prior rule
iv. hoctor v. dep't of agriculture (7th cir. 1996) (588) finding that 8 foot fenceheight requirement for dangerous animals in internal memorandum
interpreting "structurally sound" & used by inspectors to level citations
constituted a binding rule
1. similar to amer. mining cong. b/c imposes burden & draws crisper
lines, but perhaps seems more arbitrary in context, so less fair to
regulated entities
a. but fairness (i.e., estoppel-like considerations) N/A to gov't
2. note: NM thinks outcome due to circuit split (DC cir. gives agencies
more discretion)
3. note: case seems to highlight how hard distinguishing b/t interpretive
rules & regular rules can be
v. jerri's ceramic arts. v. consumer product safety comm'n (4th cir. 1999) (587)
(paper, yarn case) finding that change to definition of hazardous substances
constituted a rule b/c it "has clear intent of eliminating a former exemption &
of providing the agency w/ power to enforce violations of new rule," including
range of penalties authorized by cong
1. imposes new duties that have force of law
2. change to long-standing agency interpretation
3. has effect of regulating entirely new class of businesses
g. reining in guidance, OMB bulletin for agency good guidance practices (591)
i. requires N/C for major guidance (>$100M impact)
ii. ensures major N/C approved by appropriate agency officials
iii. provide major guidance on website & establish means for public comments on
such guidance
iv. note: OMB has limited legal authority over agencies, but may hold up review
of OIRA regulations & had influence over agency budget
h. reining in guidance, model state APA: would allow parties to petition agency to
w/draw or modify guidance & would require agency to respond w/ reasons
i. APA 553(b)(B) "good cause" exception: agency can dispense w/ N/C when agency
for good cause finds that NC procedure are impracticable, unnecessary, or contrary to
public interest
i. agency must provide statement of reasons for good cause finding in rules
issued
ii. e.g., advance notice of rule would allow parties to evade compliance; where
agency must act pursuant to deadlines, so can't afford delay; where technical
amendments to existing regulations
1. note: technical amendments may be considered RM'ing when applied
to quasi-legislative rule (similar to cong amending clerical error w/
another law), but not so when applied to adjudication (similar to
judicial correction of clerical error), which could, but need not, trigger
N/C requirements
22

2. note: concern that agency might delay in order to invoke good cause
exception
j. APA 552 publication rule:
i. all RM'ing (even good cause exceptions) & statements of general applicability
& interpretive rules must be published in FR, but other materials, like internal
agency documents, don't need to be published
1. E-FOIA, E-gov't act, OMB bulletin on good guidance had made this
distinction largely irrelevant
k. judicial review of informal RM'ing / adjudication
i. will review administrative record
1. may be difficult for excepted (no N/C) rules
ii. informal adjudication may not produce enough of record, so can remand to
agency for further development (e.g., overton park) or get testimony for
decision-makers (rarely done)
due process hearing rights
I.
introduction
a. DP concerns deprivation of "property" & "liberty" protected by 5th / 14th
amendments
b. traditional model: private rights those protected at CL
i. when gov't violates CL private right, triggers DP requirements
1. but gov't entitlement = privilege (deprivation not subject to DP
restrictions)
ii. note: quasi-legislative actions (e.g., bi-metallic) don't trigger DP rights -->
applied only in adjudicatory settings here
c. problems in context of modern welfare state where public rights really important for
private individual: indiv wealth depends increasingly on gov't action; dependence on
gov't may be involuntary; more reliance on gov't action; gov't action may be
constrained, building reasonable expectations for / reliance on gov't actions
i. expanded definition of rights entitled to DP protection AND
ii. judicial determination of what procedures needed to protect these interests
d. goldberg v. kelly (1970) (657) ("new" property) finding that termination of welfare
benefits w/o prior notice or hearing violated welfare recipient's rights to DP (though
decision made after consultation w/ case worker & recipient has options for posttermination hearing)
i. discards rights / privileges distinction
ii. welfare recipient extremely dependent on funds (has no other source of
income --> essential for survival)
1. DP rights influenced by extent to which recipient suffers grievous lost
iii. private interest in retaining entitlement must be weighed against gov't interest
in limited adjudication procedures
iv. note: dissent concerned that ct usurping legislative jdgmts
1. but reasonable expectations requirements constrains ct value jdgmts
e. note: goldberg establishes basic DP analytical framework:
i. is there right to procedural DP?
23

II.

1. protected liberty / property interest?


2. more than unilateral expectations? reasonable expectations of
entitlement?
ii. if DP right, then what process is due?
f. note: DP rights depend on statutory / regulatory criteria that govern their availability
liberty or property right?
a. property rights:
b. bd. of regents of state colleges v. roth (1972) (664) finding that failure to hold pretermination hearing before not re-hiring university professor didn't constitute DP
violation by depriving professor of liberty or property interest
i. burden on P to show protect liberty or property interest
ii. liberty interests:
1. range of common freedoms
2. includes freedom to be free of wrongful damage to reputation
a. here, no suggestion that professor's honor, etc. at stake -->
burden of proof not met
iii. property interests: created by statute / regulations
1. P must have more than abstract need or desire for property --> must be
more than unilateral expectations
2. constitution doesn't create property interests --> only statutes / regs &
other expressions from gov't can (e.g., contracts) establish property
interest
a. b/c gov't contains complete discretion in firing employee (atwill employment), property interest in employment based
solely on unilateral (not reasonable) expectations
iv. DIS (Marshall)
1. would require all applicants to gov't jobs to have DP rights --> gov't
must give reasons for denying employment
a. implicates property rights & work is essence of personal
freedom / liberty
c. perry v. sindermann (1972) (667) finding protect property interest in employment
when teacher alleged that college established an informal tenure system through its
"policies & practice," creating expectations that employees would not be fired w/o
some reason
i. ct also finds protected liberty interest b/c alleged firing violated teacher's 1st
amendment rights (separate from property interest --> more of substantive due
process concern since can't ever fire someone in way that violates 1st
amendment rights)
ii. property interest analysis:
1. mere subjective expectancy not enough to create property right
2. policies, practices, formal & informal statements & Ks may create
reasonable expectations as to property rights
iii. property interest sources:
1. e.g., statutory constraints on deprivation of property --> limiting
agency discretion
2. e.g., gov't employment Ks
24

d.
e.

f.

g.
h.

3. e.g.,. gov't statements


iv. note: importance of property right N/A to determining its existence --> must
look at whether legitimate expectancy created (categorization, not balancing)
note: finding of protected interest doesn't mean P will get to keep that interest --> DP
simply imposes procedural obligations on public actor before depriving the interest
note: ridgely v. FEMA (5th cir. 2008) (671) finding that "permissive" regulations
authorizing rental payments for people displaced by disasters don't confer property
right b/c agency need not act i.e., its discretion isn't limited by binding statutory or
regulatory laws
i. magnitude of property interest N/A --> only gov't discretion
bishop v. wood (1976) (669) finding that whether legitimate property interest
created in police officer's employment can be determined by state law or implied K,
but refusing to find property interest where judge interpreted relevant legislation to
permit city unlimited discretion in firing employee
i. note: seems to suggest that property rights subject to legislative / judicial
manipulation
ii. DIS (Brennan)
1. DP rights should have constitutional dimension: analysis should focus
on whether objectively reasonable for employee to believe he could
rely on continued employment (independent of what statutes, etc.
determine)
2. note: giving DP rights constitutional dimension would necessarily
expand judicial rule in making public value jdgmt
note: DP rights not only constrains on firing e.g., 1st amendment claims, etc.
arnett v. kennedy (1974) (672) ("bitter w/ the sweet") finding that protected property
interest not violated when employee accused of corruption was fired from "for cause"
job pursuant to provisions in the lloyd-la follette act, governing fed civil service
employment & establishing termination proceedings that didn't provide for mandatory
hearing
i. PLURALITY (Rehnquist) (generally rejected)
1. no protected liberty interest b/c even though substantive restrictions on
reasons for termination, termination process clearly tied to more
limited procedural requirements
2. property interest defined both by substance & process
ii. CON (Powell)
1. plurality misconceives nature of protected interest: right conferred by
constitutional guarantee, not legislative grace
2. once interest conferred, interest can't be deprived w/o appropriate
procedural safeguards --> procedures for deprivation must be analyzed
in purely constitutional (not legislative) terms
3. doctrine: must look at substantive right first; if substantive right, then
determine whether procedures violate DP
a. note: otherwise, cong could undermine constitutional
procedural requirements
iii. note: bitter w/ sweet principle firmly rejected in cleveland bd. of educ. v.
loudermill (1985) (674) "DPC provides that certain substantive rights life,
25

i.

j.
k.

l.
m.

n.

liberty & property cannot be deprived expect pursuant to constitutionally


adequate procedures. the categories of substance & procedure are distinct"
scneider v. cal. dep't of corrections (9th cir. 1998) finding that while state may
create new property rights through legislation / regs, etc. it can't, by the same
mechanisms, roll back or eliminate traditional property rights
i. overturning rule that restrict interest earned on inmate trust accounts
liberty rights:
analytical framework:
i. statutes must limit gov't discretion
ii. interests must be protected under substantive DP / state CL
1. constitutionally protected freedoms: free speech, right to ravel,
religious liberty, parents' right to raise children, right to engage in
common occupations, etc.
2. reputational interests ("defamation plus" or "stigma plus")
a. paul v. davis (1976) (677) finding that injury to reputation
alone not sufficient to implicate liberty interest where policy
circulated flyer w/ photos of "active shoplifters"
i. need injury to reputation plus deprivation of status (e.g.,
legal right, such as right to buy alcohol)
ii. functional concerns: more expansive definition would
flood cts w/ claims
3. physical freedom: e.g., imprisonment, commitment to mental hospital,
a. two separate doctrinal inquiries:
i. particularly significant changes in confinement
conditions (fed CL approach) OR
ii. whether state created limits on deprivation of liberty
(since rejected / narrowed)
wolff v. mcdonnell (1974) finding state "good time" credits for inmates constituted
liberty interest where forfeiture of credits can only be for serious misbehavior
(discretion limiting case)
meachum v. fano (1976) (679) finding lack of state-created guidelines for prison
transfers mean that liberty interest not implicated when transferees denied opportunity
to confront / x-exam adverse witnesses in transfer hearing, but strong dissent that
liberty has constitutional basis (not wholly dependent on state law)
sandin v. conner (1995) (680) finding that "substantial evidence" requirement for
finding of punishable misconduct (solitary confinement) in prison regulations not
sufficient to create liberty interest, finding that limits on discretion of prison officials
shouldn't be found to create constitutionally protected liberty interest, though may be
"certain types of atyptical significant deprivation" that would interfere w/ inmate's
residual liberty interest
i. focus on significance of interest, not just limits on public agency discretion
1. suggests fed CL for classification of liberty interests --> need atypical
deprivation
2. note: policy concern may be that legislatures / agencies (e.g., prisons)
will have disincentive to create procedures if carry constitutional
baggage (large burden) --> better to have some procedures / limits on
26

III.

agency discretion than none even where procedures sometimes


insufficient
a. but beneficiaries may prefer at least some process?
i. note: prisoners may have lower expectation of liberty
b/c already confined, so need to take into account
baseline
ii. DIS (Souter)
1. three part test:
a. severe deprivation of liberty w/o DP = automatically
unconstitutional
b. intermediate deprivation of liberty w/o DP = line-drawing
problems resolve by looking at applicable local law as
evidence that interest is significant (e.g., more procedural
safeguards, the more interest protected)
c. minor deprivation of liberty w/o DP = no constitutional
problem despite legal limits on discretion
o. wilkinson v. austin (2005) (681) finding deprivation of protected liberty interest
where inmates transferred to "supermax" prison w/ highly restrictive conditions used
to segregate dangerous prisoners from others b/c transfer imposed "atypical &
significant hardship under any plausible baseline" (e.g., no human contact, indefinite
placement, loss of parole consideration)
i. distinguishes sandin b/c of extreme deprivation
1. whether conditions warranted irrelevant to inquiry as to whether
liberty interest exists
p. note: if no finding of protected liberty or property interest, then can't impose
constitutional procedures --> whatever required by law sufficient
q. note: per swarthout v. cooke (2011) (682) finding that state law substantive
standards for grant of parole may have created liberty interest
i. possible to read as preserving liberty interest determined by positive law
(gov't created), but hard to know b/c overlap w/ constitutionally protected
liberty interest
the process due
a. judicial due process (Friendly, J.) (684)
i. unbiased tribunal
ii. notice of proposed action & grounds asserted for it
iii. opportunity to present reasons why proposed action shouldn't be taken
iv. right to present evidence, including right to call witnesses
v. decision based exclusively on evidence presented
vi. right to counsel
vii. requirement that tribunal prepare record of evidence presented AND
viii. requirement that tribunal prepare written findings of fact & reasons for its
decision
b. considerations:
i. type of issue (e.g., credibility of witnesses, documents alone, etc.)
ii. utility of procedural element
iii. accuracy
27

iv. dignitary interests belief justice has been done


v. hearing subject matter (e.g, specialized matters may be suited for agency
procedures)
vi. over-investment of procedures (i.e., not likely to dramatically enhance
marginal value of proceedings)
c. goldberg v. kelly (1970) (658) procedural requirements where property interest in
welfare payments deprived in violation of DP
i. public rights case --> no art. III judges required
ii. high-water mark re: procedure for public benefits
1. impartial decision-maker
2. oral hearing (to argue & present evidence)
3. right to confront / x-examine witnesses
4. right to counsel
5. decision based solely on evidence adduced at hearing
6. statement by decision-maker of reasons relied on for decision
7. adequate notice of action
iii. other than discovery, seems to mimic art. III trial requirements
iv. suggests procedural equivalency of new & old property rights
v. doctrinal analysis: (individual interests v. gov't interests) + value-added (for
type of issue)
1. individual interests: dignitary interests (participation, inform exercise
of discretion), accuracy (non-wrongful termination of values),
individual responsiveness
2. gov't interests: efficiency, resource allocation, finality, accuracy,
consistency, atmosphere of cooperation, dignitary interests (promote
public values), accountability, effectiveness
3. value add --> rough analysis from class, not individual, perspective
(risk of error v. probable value of additional safeguards)
d. mathews v. eldridge (1976) (687) (3 factor balancing test, retreat from goldberg)
determining that deprivation of disability entitlement under social security act didn't
require full-blown trial-like procedures, including evidentiary hearing
i. balancing test:
1. weight of private interest affected
2. risk of erroneous deprivation & probable value of additional or
substitute procedural safeguards
3. gov'ts interest in procedures (e.g., administrative burdens, agency
purposes, etc.)
ii. apply test to general cases, not specific ones before court
iii. private interest: hardship on disability recipient high, but not as much as
welfare recipient (less critical, not need-based)
iv. probable value of additional procedures: minimal
1. type of issue: medical
a. based primarily on expert documentation, like treating doctors
(credibility not an issue); based more on empirical evidence

28

b. note: assumption that medical issues wouldn't benefit from


adversarial testimony challengeable, but ct not focused on this
possibility
v. gov't interest (may run in both directions): administrative burden & other
societal costs
1. note: reputation of bureaucracy may influence ct's jgmt
2. more procedure may increase cost, which in turn may reduce $$
available for disability recipients
3. assume gov't acts in good faith to provide fair consideration of
entitlement claims
a. reduces need for oversight / additional hearings
b. assumes special agency knowledge may play key role in
making entitlement decisions
vi. note: outcome of mathews is that cts very rarely require oral pre-termination
hearings
e. cleveland bd. of educ. v. loudermill (1985) (691) finding that where protected
property interest in form of "for cause" employment, need to be some preliminary
procedures whereby employee (1) given oral or written notice of charges against him,
(2) an explanation of employer's evidence & (3) opportunity to present his side of
story
i. pre-termination hearing need not resolve definitively whether deprivation
property just initial check against mistaken decisions (confirmation of
reasonable grounds)
ii. private interest: employment interest large (just a little less than welfare, but
not need-based)
iii. gov't interest:
1. employ honest people in law enforcement
2. reduce administrative burden / cost
3. ensure quality security guards (get rid of bad actors fast)
4. keeping citizens usually employed (thereby reducing welfare rolls)
iv. value added: oral hearing, presentation of evidence, chance for employee to
speak
1. not x-examination b/c not clear that witnesses useful (esp. in light of
gov't interest in getting rid of bad actors), though may also be
precedent-setting assuming other employment scenarios
2. opportunity to appeal to decision-maker to exercise discretion before
losing benefits
3. note: ct doesn't provide clear reasons for why specific procedural
additions required
f. note: although doctrine emphasizes generality of analysis, should always apply
analysis to facts presented in case
g. walters v. nat'l assoc. of radiation survivors (1985) (695) finding that limit on
lawyer's fees for veteran benefit proceedings in front of VA ratings board (nonadversarial) doesn't violate DP
i. private interest in benefits: extremely important as may have no other source
of income or ability to work, but not need-based so in mathews realm
29

ii.

iii.

iv.

v.

vi.

vii.

1. note: claimant interest in having lawyers (procedural protection)


gov't interest:
1. administrative cost --> lawyers make hearings adversarial & thus more
expensive
2. could reduce overall benefits awarded
3. gov't (i.e., cong) has goal in reducing formality of hearings
probable value of adding lawyers:
1. unclear that lawyers increase accuracy
2. issues are "easy" i.e., medical like in mathews
3. most challenging cases only small part of docket (no categorical
benefit to allowing lawyers)
DIS (Stevens)
1. reframe case as involving liberty interest --> right to consult lawyer &
have him speak on claimant's behalf
2. dignitary values need to be protected in procedure
note: walters employs standard rule that determination of what process is due
is performed on "wholesale" basis for gen categories of disputes rather than
taking into account particular characteristics of each case
1. but see lassiter v. dep't of social services (1981) (698) finding that
whether counsel required permitted for indigent child custodial should
be determined on case by case basis w/ reference to complexity of
issues involved (framed as fundamental fairness issue, not balancing
costs/benefits)
note: pre-benefit DP rights --> cts haven't dealt w/ this issue
1. limited gov't discretion in awarding benefit may create expectation,
but not clear there's reliance on benefit
a. though reliance not only based on possession & reliance may
have motivated seeking benefit in first place
2. but hearing requirements would drive costs up
a. administrative burdens
b. may lead to over-award of benefits in trying to avoid
burdensome procedures or may lead to reduction in benefit
program in first place.
3. limited procedural discretion alone create property right
a. also want to encourage gov't to follow procedures w/o concern
re: ct interference
gilbert v. homar (1997) (tab N) finding that pre-suspension notice & hearing
not required where law enforcement employee suspended w/o pay after being
charged w/ criminal offences
1. property / liberty interests: income & reputational (assuming name
cleared)
a. but deprivation temporary / short, b/c of post-suspension
hearing
i. length / finality of deprivation should be taken into
account when considering property interests
2. gov't interest:
30

a. reputational: immediate suspension of employee of high


visibility & public trust --> services no longer useful, so don't
need to continue to pay employee while seeking replacement
3. value add of additional procedures:
a. need only "reasonable grounds" for suspending employee
i. procedure need only assure that grounds for suspension
aren't baseless or unwarranted
1. imposition of felony charges are objective,
public fact
b. dignitary interests of employee?
i. less strong where deprivation temporary
1. delayed hearing may also promote accuracy of
eventual hearing b/c provide time for gathering
facts (promoted by gathering facts)
2. post-suspension hearing also provides
opportunity to influence decision-maker where
deprivation not great
4. note: ct indicates that when charges dropped, employer needed to hold
prompt hearing b/c independent basis for suspension no longer present
(remanded for consideration)
a. whether indefinite suspension violates DP may depend on how
soon post-suspension hearing held
5. note: where pre-deprivation process impractical, post-deprivation
process may be consistent w/ DPC
6. note: affirms loudermill dicta that suspension w/o pay wouldn't violate
DP
7. note: seems to suggest moving toward less procedure
viii. brock v. roadway express (1987) (705) finding that OSHA's rule requiring
automatic reinstatement of "whistleblower" until such time as hearings could
be held to determine that employee not discharged for whistle-blowing
violates DP protections for employer's right to terminate employee at will &
that minimal pre-reinstatement hearings (i.e., no x-examination) should be
required
1. private interest: employer's right to employ people at will (elements of
both liberty & property w/ liberty emphasis)
2. gov't interest:
a. improving highway safety (want to encourage whistle-blowing)
3. regulatory beneficiary? (employee's interests)
a. income
b. expectation that gov't's program will provide protections
4. note: expands mathew's test to include consideration of regulatory
beneficiary as separate component (where private interests &
beneficiary's interest aren't the same)
a. unclear where to draw limits
i. note: o'bannon v. town ct nursing center (1980) (706)
rejecting interest asserted of patients in nursing home
31

deprived of regulatory certification b/c they were only


indirect or incidental beneficiaries of regulation on 3rd
party (nursing home)
ix. CERCLA pre-enforcement orders
1. no judicial review except when EPA sues & if party loses, then huge
fines
2. general elec. v. jackson (DC cir. 2010) finding that while it's possible
that statutory scheme violates DP where penalties for disobedience are
extremely high & discourage parties from resorting to courts, there's
no problem if fines subject to "good faith" or "reasonable grounds"
defense
h. note: actual impact of application of mathew's 3 part test unclear
i. incentives / outcomes
1. increases gov't discretion / diminishes constitutionally protected
property interest
a. could promote arbitrary decisions
2. agencies may require too much process
a. inefficient allocation of resources
b. time-consuming / delay-prone
3. may promote RM'ing to streamline rules
a. mass justice problem (inappropriate for individual situations)
b. but increases efficiency
4. promotes procedural innovations (e.g., informal hearings)
a. but adversarial process deeply ingrained in culture
i. impacts of hearing req'ments on agency functionality: see (711-17) (not covered in
class)
j. note: DP protections raise mass justice challenges / problems
judicial control of agency action
note: need to look at preliminary steps e.g., standing, availability of judicial review before
analyzing substance of agency actions
I.
II.

review of agency actions governed by APA 706 & organic statutes, as needed
review of agency determinations of fact: "substantial evidence"
a. deference to agencies:
i. expertise, credibility, common sense, efficiency (avoid redundant procedures),
& policy objectives
ii. v. accountability / adequate fact-finding, agency bias, judges can perform as
well as agencies (e.g., adjudicative v. legislative facts)
b. universal cameral corp. v. NLRB (1951) (239) finding that review of agency
decision w/r/t to whether employee fired in retaliation for pro-union testimony under
the APA & wagner act, required that the court determine whether agency decision was
supported by substantial evidence on the record considered as a whole

32

c.

d.

e.
f.

g.

i. "as a whole": ct should consider total recorded before agency, not just the
information that supports agency conclusions
ii. "substantial evidence": relatively deferential; ct may overturn / remand only
when findings grossly unfounded --> more deferential than review of judge
fact-finding
iii. note: on remand, lower court rev'd is holding & ruled that NLRB wrongly
concluded that employee was fired in retaliation for testimony
allentown v. NLRB (1998) (247) finding that while NLRB may establish a
"reasonable doubt" standard for determining whether an employer lawfully required a
vote of union support among its employees, in this case NLRB's decision wasn't
supported by "substantial evidence" where mixed testimony would have provided any
reasonable person w/ doubt as to the status of union support & NLRB appeared to
irrationally dismiss conflicting testimony that was in minority
i. note: agency can't announce one legal standard, but apply another
1. agency can promulgate different evidentiary presumptions if it wants
ii. "substantial evidence": same as standard for reviewing jury verdicts
approximately equivalent to "reasonableness" standard for reviewing jury
factual findings
iii. note: policy for fact-finding review: prevent politically motivated fact-finding
(policy in the guise of fact-finding); ensure agency stays w/in statutory
boundaries; ensures agency accountable for following own procedure
iv. DIS (Breyer)
1. reasonable for ALJ to conclude that conflicting testimony a result of
employee being questioned by employer about his support for union
was not credible
note: interpretations of substantial evidence vary (from review of judge fact-finding,
jury fact-finding, & of j.n.o.v. to even more deferential where agency dealing w/
specialized expertise & less deferential where agency has bad reputation)
i. clear that agencies deserve at least some deference (i.e., de novo review would
undercut agency function)
ii. but general consensus from universal camera & allentown: "more than mere
scintilla" or "such relevant evidence as reasonable mind might accept as
adequate to support a conclusion" --> more deferential than "clearly
erroneous" standard applied to review of dist. ct. findings of fact
note: may be hard to distinguish b/t agency fact-finding & policy making
note: unclear what deference ALJs (who hear live testimony) should receive by
agencies & by reviewing courts
i. agencies not required to give ALJs any deference per APA
1. but for some cts agencies must give compelling reasons for
disagreeing w/ ALJ conclusions re: witness testimony
ii. universal camera gives ALJ findings some undefined weight as relevant part
of record
1. possible remedy is to remand where agency doesn't explicitly state
reasons for overturning ALJ fact-findings
note: "substantial evidence" only applies to formal RM'ing & adjudication
i. organic statues may require different review std than APA
33

III.

ii. where informal proceedings & no specific proceedings, cts review for
whether action "arbitrary, capricious, or an abuse of discretion"
1. less demanding than substantial evidence, but sometimes conflated
h. note: burdens of proof
i. burden of persuasion (factual issues): falls on party who will lose if evidence
fails to meet certain "standard of proof"
ii. burden of production: falls on party who must put forward evidence to avoid
adverse decision (when evidence adduced, either party may be required to
persuade fact-finder of its validity)
iii. standard of proof: under APA 556(d) it's interpreted to be "preponderance of
evidence"; cong can provide for different std if it wants & statutes may affect
when different burdens of production & persuasion fall on the parties
i. zhen li lao v. gonzales (7th cir. 2005) finding that INS ALJ lacked "rational analysis
of evidence" before it when denying chinese political refugee asylum from
persecution after she had been in the US for sometime
i. ct concerned that executive branch implementing immigration policy through
flawed fact-finding rather than clear statement of policy (i.e., fact-finding
driven by unexpressed policy)
ii. ct concerned re: agency incompetence
iii. ct wants to make agency more transparent
iv. general problems w/ immigration hearings: cultural misunderstandings;
flawed notions of how versed people are in religions; exaggerated
assumptions about documentation of religious membership; translator
problems; incomplete fact-finding records (e.g., whether witness credible); no
meaningful agency appeals process
v. note: ct asserts stronger role in immigration cases b/c aliens don't have usu.
political protections (i.e., they are disenfranchised minorities who can't vote,
etc.)
distinguishing Qs of law & fact
a. united states v. 53 eclectus parrots (9th cir. 1982) (270) upholding agency decision
that "wild" within the context of US wildlife law applied to parrots that were bred in
captivity, but could generally be found in the wild, and thus birds couldn't be
imported into US by indonesian breeder w/ violating law
i. distinction b/t law & fact matters b/c accorded different standard of review w/
factual review generally being more deferential (here, legal determinations
reviewed de novo)
ii. note: not always easy to determine whether factual or legal findings
1. here, agency relied on expert zoologist testimony as to what "wild"
meant --> potential statement of law, though not from legal authority
b. o'leary v. brown-pacific-maxon (1951) & o'keeffe v. smith, hinchman & grylls (1965)
(272) worker compensation turns on whether employee injury or death "arose out of
and in the course of employment" w/ judicial gloss that this applies to situations
where employment conditions create "zone of special danger" that worker is injured
by

34

IV.

V.

i. agency determinations as to whether employees were acting in "zone of


danger" is primarily factual (though arguably mixed law & fact); therefore,
agencies should receive ct deference
ii. note: factual determinations seem to be when interpretation of law is settled &
agency deciding whether that interpretation matches a given set of facts;
mixed Qs of law & fact more likely to arise when application to specific set of
facts depends on agency's interpretation of the law
1. may be difficult to extract law from fact, so some courts give agency
fact-finding deference where Qs closely linked
iii. note: ct review here relatively lax; gets stricter later on, requiring agencies to
explain decisions more thoroughly
pre-chevron review of agency determinations of law
a. note: where cong grants agency power to interpret statute, how much deference
should agencies get
i. agencies get some deference, but cts still ultimate arbiters of statutory
meaning
b. NLRB v. hearst publications(1944) (275) upholding agency decision that newspaper
boys were "employees" w/in the meaning of the national labor relations act, requiring
employer to bargain w/ newsboys
i. cts may review interpret statute de novo when it receives the question first, but
when agency vested w/ power to administer statute, ct should defer to some
extent to agency interpretations of applicable statute: defer to agency if
decision "warranted in record" & has "a reasonable basis in law"
1. purposes of law generally supports agency's uniform reading of
statutory term & record provided evidence that evidence that the
relationship b/t newspaper publisher & newsboys fit parameters of
statute
2. cong gave agency power to interpret statute; want consistency of
interpretations (not judicial ad hoc decision-making)
c. skidmore v. swift & co. (1944) (278) ("persuasive authority") finding agency
interpretation of "working time" including waiting time & thus requiring OT under
the national fair labor standard act was erroneous
i. agency statutory interpretations have "persuasive authority":
ii. factors determining persuasive weight given to agency interpretations:
1. thoroughness of its consideration
2. validity of its reasoning
3. consistence w/ earlier & later pronouncements
4. other factors (giving it power to persuade...) i.e., agency persuasive
ness
iii. incentivizes agency to articulate reasons for decision, but ultimately ct still
decides what's law & outcome still unpredictable
d. note: stare decisis doesn't bind agency but consistency factor to consider in
determining how much weigh to give agency under skidmore
i. agencies get less deference when they change minds (unless can show
compelling, valid reason)
chevron
35

a. APA 706: "...otherwise not in accordance with law"


b. chevron v. NRDC (1984) upholding agency interpretation of "stationary source"
under CAA to allow for "bubble" concept, so that building new pipes in emitting
facility doesn't trigger NSR
i. chevron two steps
1. has cong spoken directly to the precise question at issue?
a. if cong intent clear, then no agency deference
2. if statue silent or ambiguous (clarity lacking) as to precise issue,
cts should defer to agency's "permissible" (reasonable)
construction of statute
ii. note: if reach step 2, agency usually wins
1. here ct doesn't scrutinize statute closely in first step notes ambiguity
& throws up its hands
2. policy arguments better made in step 2
iii. note: there's chevron step zero, since not all agency interpretations qualify for
chevron deference
iv. chevron justifications: (1) in application of law to fact, agencies already get
some deference, including some aspects of policy-making; (2) institutional
competence / technical expertise; (3) democratic accountability (agencies
accountable to president); (4) implicit delegation of interpretative authority
from cong (if cong considered it, would want agency to fill statutory gaps)
1. implicit delegation argument questionable --> some statutes explicit,
but background APA 706 presumption is that cts interpret law
2. deference to agencies more justifiable when purely technical, not legal,
question
v. chevron policy risks:
1. political pressure on agency distorts decision-making
2. poor legislative drafting grants agency too much discretion
3. regulatory bias / capture
4. less opp. for individuals to ensure fair / proper agency treatment
5. greater concentration of agency authority
6. less stringent review standard than before (i.e., skidmore, hearst)
vi. outcomes: incentive for cong to draft clearer / more specific laws (but this
unrealistic given cong dynamics: busy, not technical, hard to reach consensus;
also other methods of cong control & may want to promote agency flexibilty)
c. chevron step 1
i. interpretative tools: (1) plain meaning; (2) grammatical arguments; (3) some
policy arguments (e.g., de minimis); (4) legislative history
ii. INS v. cardoza-fonesca (1987) (tab P) finding that INS interpretations of
statute giving two separate phrases the same meaning in terms of standards for
granting asylum in persecution in foreign country was clear inconsistent w/
the meaning of the statute & didn't warrant chevron deference
1. note: agency RM'ing & formal adjudication both chevron eligible
2. ct employs "traditional tools" of statutory interpretation:
a. plain language (different lang can't have same meaning)

36

b. legislative history: based on UN protocol, which requires "clear


probability of persecution" to have different meaning than
"well-founded fear"
3. DIS (Scalia)
a. chevron should apply whenever statute ambiguous --> ct not
entitled to fill in ambiguities itself
iii. babbit v. sweet home chapter of communities for a greater ore. (1995) (316)
finding that "take" in ESA could be construed by DOI regulations to include
"habitat modification" that kills, injures wildlife by impairing essential
behavioral patterns, including breeding
1. MAJ finds ambiguity in word "harm" --> defer to agency so long as
interpretation reasonable (step 2):
a. ordinary meaning of harm supports including habitat
modification ("to cause hurt or damage to: injury")
b. ESA statutory goals supports agency interpretation: prevent
harms broad reading of harm would prevent
c. rule of surplusage: read "harm" to avoid redundancy --> give it
distinct meaning from words around it
i. app. ct. / Scalia: noscitur a sociis --> "harm" should
have same character as words near it, so read in "direct"
rather than "indirect" action
ii. statutory structure: "incidental take" permit
contemplates indirect harm --> avoid giving distinct
meanings to same word where possible
d. statutory structure: broadening limits on private actions
wouldn't render gov't meant so unlikely to conserve through
public land purchases as to give critical part of statute no force
(policy critique)
e. legislative history: sen. rep. construing take in "the broadest
possible terms"
f. if statute ambiguous agency may make consequential policy
choices when filling in gaps
2. CON (O'Connor):
a. agree that "harm" should be limited to actual rather than
"hypothetical or speculative, death or injury to identifiable
protected animals" & by ordinary principles of causation (i.e.,
foreseeability) (proximate cause)
3. DIS (Scalia)
a. step 1: statute has clear meaning, so no agency deference
b. term of art: "taking" has particular CL definition w/r/t harm to
wildlife --> assume cong adopted this meaning, which
necessarily limits scope of words, e.g., harm, defining this
statutory term (note: but if term already had CL definition, no
reason to define it in statute)

37

i. noscitur a sociis: other terms in definition consistent w/


CL sense of "taking," so "harm" should also be
construed in this context
c. policy implications: broad reading would criminalize routine
private activities
i. cong couldn't have meant to give agency that much
power (see also brown & williamson)
ii. major questions canon (related to non-delegation
canon): limit agency power to make big policy choices
w/o clear cong intent
iii. constitutional avoidance canon: limit agency power -->
regs so broad they constitute a 5th amendment taking?
1. need clear statement from cong
d. statutory structure: incidental take provision doesn't preclude
defining "harm" consistent w/ CL "take" --> can take indirectly
w/in CL definition, so no reason to expand scope to
accommodate harm's "indirect" character (e.g., bicatch)
e. statutory structure ("whole act rule"): cong provided
acquisition of land to deal w/ habitat preservation, so omission
from takings section significant & agency can't impose habitat
preservation goals on section against cong's intent
f. MAJ reading internally nonsensical
i. indirect harm inconsistent w/ MAJ's proximate cause
req'ments
ii. MAJ relies on flawed "knowingly" definition --> means
private actors need to know what they are doing is
illegal to be punished, which misses "purposeful"
activities harming protected species where actor doesn't
realize he's violating law
4. note: a lot of these interpretive techniques assume a "rational" cong,
but reasonableness assumptions can support use of conflicting tools
(e.g., rule against surplusage v. noscitur a sociis)
iv. note: Scalia DIS in sweet home represents much more aggressive step 1
approach than in chevron
v. note: step 2 provides more room for agency policy arguments to be relevant
(though clearly Scalia employs policy concerns to limit meaning (cong intent)
at step 1)
vi. MCI v. AT&T (1994) (324) finding that statutory authorization to "modify"
tariff requirements in telecommunication market didn't permit FCC
(independent agency) to impose tariff requirements only on the "dominant"
long-distance carrier, but not other firms (which promotes competition in
market)
1. plain meaning: dictionary definition of "modify" includes modest or
incremental changes

38

a. context / normal use of word defeats attempts to create


ambiguity by absurdly literal reading of definition that would
allow more wide-ranging interpretations of word
b. look at general use of word in dictionaries: exception to norm
doesn't create sufficient ambiguity
c. may look at dictionary definitions from when statute passed
(not just contemporary sources)
d. FCC policy is "major" not "minor" regulatory shift
2. major questions canon: b/c major changes not clearly authorized by
cong, avoid reading statute to permit them (clear statement rule)
a. note: ct making own jdgmt re: what's significant enough to
require clear statement
3. DIS (Stevens)
a. must read "modify" in context of statute: regulation consistent
w/ intent to provide FCC w/ flexibility to address new
situations
i. FCC policy isn't "major": simply relaxes regulatory
restrictions faced by "non-dominant" firms
1. whether major depends on baseline: # of firms
affected v. statutory purpose that FCC is
furthering (not major shift in policy)
vii. FDA v. brown & williamson (2000) (tab A) finding that FDA exceeded its
authority in regulating marketing & sales of cigarettes by concluding that
nicotine was "drug" & that cigarettes were "combination products" w/in
meaning of food, drug & cosmetic act
1. aggressive step 1 approach:
a. strict statutory interpretation: can't be "drug" b/c per FDA
findings, nicotine has no medical benefits & can't be safe when
used as intended
i. FDA can't ban drugs; it can only "regulate" them
b. major questions canon / specific intent: infer that cong would
have specifically permitted FDA to regulate tobacco in statute
b/c regulations would have had such a big economic & social
impact
i. cites MCI
ii. doesn't hide elephant in mousehole
c. in paria materia: statute must be read in light of other
legislation passed by cong covering tobacco regulation
i. infer intent to preclude FDA from regulating tobacco
b/c cong already passed comprehensive regulation
ii. note: dubious (& rare) assumption that cong drafted
statutes across US Code to be consistent
iii. note: post-enactment leg history extremely rare to rely
on

39

iv. assume cong legislated against backdrop of FDA's


longstanding position that it didn't have authority to
regulate tobacco
2. DIS (Breyer)
a. more consistent w/ standard step 1 (some reliance on canons of
construction, but doesn't work hard to avoid ambiguity)
b. literal FDCA language contemplates regulation of products like
nicotine
c. statutory goals: protection of public health should drive
interpretation of statutory lang
d. must look at context for agency change of position --> new
definitive evidence re: nicotine's harmful effects
e. major questions canon N/A: assume that agencies accountable
to voters through executive branch (regulation of tobacco
reflects legitimate policy change based on election of new
president)
viii. note: aggressive chevron step 1 policy considerations
1. make statutes more specific / provide agencies w/ clear direction (hard
to reach agreement)
2. forces cong to deliberate over major policy decisions (but undermines
purpose / function of delegation)
a. cong already accountable through electoral process
b. ct prioritizing cong policy jdgmts / deciding major policy
issues by imposing costs (political, legislative, etc.) on
outcomes ct's don't favor
i. lawsuits allow special interests to drive ct / cong
priorities
ix. mass. v. EPA (2007) (336) finding that GHGs count as "pollutant" w/in
meaning of CAA
1. MAJ employs step 1:
a. plain meaning of statute: all airborne particles can be pollution
i. literal reading limited by statutory context (i.e., Scalia's
concern about absurdity exaggerated)
b. rejects post-enactment legislative history
c. major question, but unlike brown & williamson, EPA regulating
not banning pollutant
2. DIS (Scalia)
a. plain meaning limited by rule against absurdity: "frisbees"
would count as pollution under literal reading
b. grammar: pollutant definition can't be read so that one part of
definition emphasized so much that it "swallows" rest of
statutory language e.g.,. MAJ doesn't address lang that
requires air pollutant to be "air pollution agent or combination
of any such agent"

40

i. note: "including" can be read narrowly or expansively


(may limit or expand meaning of words that list
supposed to illustrate)
c. plain meaning in context of statute contemplates more
traditional types of air pollution --> local not global problems
d. major questions canon: need explicit cong statement, esp.
where post-enactment legislation on same topic didn't authorize
EPA to regulate GHGs
x. envtl. defense v. duke energy (2007) (348) finding that presumption against
same words having different meanings w/in statute can be overcome where
context appropriate: "modification" in different sections of CAA may be given
different regulatory definitions
1. statutory text, structure & leg history indicates no specific cong intent
w/r/t meaning of word
2. statutory complexity / structure as support for granting agency
discretion
3. note: apply step 1 to find not that cong spoke directly to definition of
"modification" but that cong clearly didn't restrict EPA's
interpretations
4. DIS (Thomas)
a. but presumption that same words have same meaning strong
when word cross-referenced, not just repeated
d. canons of construction & avoiding constitutional issues
i. statutory interpretation trends:
1. focus more on textual / plain meaning (literal reading) than reliance on
external sources of meaning (e.g., legislative history)
a. but may construe text to avoid absurd results (e.g., provide for
de minimis exceptions) (rule of absurdity)
2. e.g., amer. water works. v. EPA (DC cir. 1994) (351) finding that
where maximum contaminant level for lead would actually increase
contamination if set at level technically "feasible" statute must be read
to allow EPA discretion to set MCL at a different level, not at odds w/
SDWA's statutory purpose (to make drinking water safe)
a. absurdity can create ambiguity in statute
i. but cts may have different sense of absurdity than cong
b. rule against absurdity: promotes legitimacy of law &
practicality (rule of law values)
c. note: absurdity defined in part by goals of act, so brings in
policy / purpose considerations in step 1(somewhat unusual)
ii. interpretive tools:
1. statutory lang
a. textualism
i. canons:
1. linguistic: plain meaning, surplusage, noscitur,
ejusdem generis, expresio unius; no
"swallowing" rule; rule of last antecedent
41

2. substantive / policy: no retroactivity; rule


against absurdity; implied repeals are
disfavored; presumption against intrusion on
state law; judicial review presumed, etc.; "whole
statute rule"; in paria materia
ii. leg history (sometimes, contentious)
1. e.g., zuni pub. sch. dist. v. dept' of educ. (2007)
(353) finding legislative history relevant to
promoting interpretations in line w/ cong intent
(poorly drafted statute, but general consensus on
what was intended) --> role of cts to effectuate
cong intent (esp. when literal reading would
give absurd result)
a. DIS > want to encourage cong to draft
clear statutes; too easy to manipulate leg
history
2. e.g., other congressional actions; decisions not
to enact certain legislation; contemporary
statements (e.g., sponsor statements, floor
remarks, committee reports)
2. major questions canon; constitutional avoidance canon --> need clear
statement from cong
a. e.g., agency can't interpret statute in way that raises
constitutional question
3. unclear to what extent statutory interpretation tools (esp. policy-based
canons) trump chevron deference i.e., allow cts to find statutes clear
a. constitutional avoidance canon almost always trumps chevron
i. but others may be employed in steps 1 or 2
iii. SWANCC v. army corps of engr's (tab Q) (2001) finding that "waters of
United States" could not be construed to mean isolated, man-made pond that
was refuge for migratory bird species where doing so would have caused
agency regulations to be applied in manner that raised constitutional question
under commerce clause / 10th amendment
1. assume cong doesn't want to pass unconstitutional statute
2. assume cong doesn't want cts to make constitutional decisions where it
doesn't absolutely have to (would give cts too much power over coequal branch)
3. assume cong doesn't intend for agency to have power to present
constitutional questions to cts
4. policy goal: cong should deliberate before presenting ct w/
constitutional question --> need very clear statement of intent to raise
constitutional question
5. note: in limiting agency authority under statute, deprives statute of
potential meaning i.e., b/c meaning per agency interpretation could
be unconstitutional, don't give agencies deference to give it potentially
unconstitutional meaning
42

a. in effect, limits statutory meaning at step 1 to avoid


constitutional questions
e. chevron step 2
i. whether agency interpretation reasonable
1. statutory interpretation: whether agency textual analysis is A/C
2. policy choice: whether substantive policy choice A/C
a. consistent w/ overall statutory / cong purposes
3. note: both forms of reasonableness appear in play
ii. room for statutory purposes, policy choice: in contrast to skidmore, agency
now in driver's seat (subject to ct supervision)
iii. arent v. shalala (DC cir. 1995) (359) noting that chevron step 2 should be
limited to situations where agency action clearly contrary to statutory
purposes (even if decision otherwise reasonable i.e., not A/C in terms of
procedure or policy jdgmt)
1. note: limiting step 2 to restraining really extreme agency
interpretations seems no different than step 1 except at higher level of
abstraction)
a. may be difficult to draw line b/t step 1 & step 2 analysis
iv. note: cts seem to blend lax step 1 & A/C analysis into step 2, depending on
needs
v. entergy corp v. riverkeeper (360) (2009) finding that regulations picking
"best technology available for minimizing adverse environmental impact"
under CWA cooling water intake section were permitted to consider nonmonetary CBA where "best" is ambiguous term
1. where cong intent at odds w/ plain meaning of statute, ambiguity
created
2. best can't mean s/t that destroys industry
3. best as defined by dictionaries creates ambiguities
4. CON (Breyer)
a. should allow CBA where not expressly forbidden (tension b/t
statutory lang & leg history, but nothing that would preclude
limited CBA proposed by agency) & would avoid absurd
results
5. DIS (Stevens)
a. omission of cost in this section of statute significant: b/c
mentioned in other sections shouldn't be allowed (expresio
unius, exclusio alterius)
b. technology forcing statute (supposed to impose burdens on
industry) --> $$ only relevant insofar as technology is available
c. leg history
d. word defined by what follows in sentence: "best...for
minimizing envtl impacts"
vi. ohio v. dep't of interior (DC cir. 1989) (365) finding that DOI regulations
governing use of CBA in assessing natural resources damages under CERCLA
were largely unreasonable w/ in the context of statutory purposes, prioritizing
cleanup / restoration of contaminated sites
43

1. "lesser of" rule (damages assessed at lesser of restoration / replacement


costs or diminution of use values):
a. DOI can't consider $$ alone b/c nat. res. isn't fungible good &
cong refused to equate "use values" & restoration costs
i. some ambiguity as to specific factors that must be
considered, but clear requirement that damages include
non-traditional measures
ii. cong policy choice: restoration preferred
2. "hierarchy of assessment methods" (emphasis on market-based
valuation): cong made policy jdgmt intending to capture all lost
values in nat. res. damages, not just mkt-based use values
a. no necessary relationship b/t nat. res. values & user fees
b. need also to included non-consumptive values, e.g., option &
existence values
3. note: examine statute's policy basis to determine whether agency
interpretations consistent w/ them
vii. barnhart v. thomas (tab R) (2003) finding language defining "disability" as
s/t that limits applicant's ability to do work such that "he is not only unable to
do his previous work but cannot...engage in any other kind of substantial
gainful work which exists in the national economy" created sufficient
ambiguity w/r/t whether "previous work" must also exist into nat'l economy as
to allow the SSA to decide not to make that determination when deciding
disability for eligibility
1. grammatical rule of last antecedent: read limiting clause as modifying
only the term or phrase it immediately follows
a. can be overcome w/ other indicia of meaning, but permissible
baseline rule
2. rejects rule against absurdity: lower ct noted that SSA could deny
benefits where claimant could perform previous work but not anything
existing in nat'l economy at present
a. permits at least some unfairness in "mass justice" context as
tradeoff for agency efficiency, etc. esp. when agency's
construction of ambiguous term reasonable
f. chevron & stare decisis
i. interaction b/t ct decisions & deference to agencies when their decisions
conflict w/ cts (& w/ prior agency interpretations)
ii. nat'l cable & telecom. assoc. v. brand x internet services (2005) (375)
finding that agency rule that ISPs qualify as "information service providers" &
not "telecommunications service" that conflicted w/ prior app. ct. decision still
warranted chevron deference i.e., prior judicial decisions trump agency
interpretations only where court held its interpretation rested on interpretation
of unambiguous terms
1. reversals of agency policy don't mean they get less chevron deference
(though unexplained reversals may warrant A/C findings under APA)
b/c doctrine assumes agencies operating w/ some discretion

44

2. allowing prior ct decisions (or prior agency decisions) to constrain


agencies would defeat chevron purposes: its for agencies, not cts, to
fill statutory gaps
a. agency = authoritative interpreter of statutes it administers
i. affirms agency expertise & interest in evolving
statutory interpretations
ii. note: but doesn't promote good upfront agency
decision-making & makes it harder for regulatory
community to rely on agency positions
3. note: contrast w/ skidmore, which requires scrutiny if agency changes
position
4. DIS (Scalia)
a. allowing agencies to trump cts raises separation of powers
concerns
5. outcome: step 1 interpretations bind agency; step 2 rulings don't
a. but may be hard to determine whether ct even applying
chevron, since agency interpretation may not be at issue
brand x stare decisis rule hard to implement
iii. note: agency receives no deference for interpreting generally applicable
statute or statute administered by another agency
iv. note: in dominion energy, ct found that prior ct decision didn't control agency
decisions b/c wasn't based on construction of unambiguous terms in CWA's
procedural requirements for hearing requirements in context of granting
permits
g. chevron step zero: return of skidmore
i. chistensen v. harris cnty (2000) (302) finding that opinion letter written by
DOL asst. administrator re: private dispute arising b/t employer/employee
w/r/t whether vacation & "comp time" were interchangeable doesn't warrant
chevron deference
1. in general interpretative rules don't get chevron deference esp. when
not adopted through RM'ing or formal adjudication --> no procedures,
no force of law, no deference
a. "entitled to respect" under skidmore
b. note: mead suggests that informal adjudication won't get
chevron deference (but may depend on the nature of the
informal adjudication --> clearly some more "formal" than
others)
2. where agency doesn't have RM'ing authority, infer cong didn't intend it
to be primary interpreter
a. where no process constrains interpretive rules, less reason for
cts to assume cong delegation of authority & more reason to
worry about agency overreach
3. note: skidmore generally applies where agency has expressed views
about meaning of statute it administers & chevron N/Q
ii. united states v. mead (2001) (293) finding that tariff classification ruling by
US customs service doesn't trigger chevron where classifications determined
45

on case-by-case basis through issuance of ruling letters (informal


adjudications) that aren't subject to review & most commonly originate from
any regional office or HQs (here issued from HQs)
1. agency implementation of statute warrants chevron deference when it
appears that cong delegated authority to agency generally to make
rules carrying force of law & that agency interpretation claiming
deference was made pursuant to that authority
a. cong intent factors:
i. authorization to make rules or adjudicate per formal
processes (e.g., form adjudication, N/C RM'ing, etc.)
that have force of law
ii. but chevron deference may be warranted in some cases
where no administrative formalities: process relevant
but not dispositive
2. limited precedential value of ruling letters not sufficient to trigger
chevron
3. look to agency actions to determine whether it acts in way that's
associated w/ the force of law
a. ruling letters don't bind 3rd parties
b. ruling letters issued at rate of 1,000s per year w/ limited
procedures
i. although agency has RM'ing & formal adjudicatory
authority, it doesn't exercise it except when making
broadly applicable changes to tariff schedule, etc.
ii. decentralized ad hoc decision-making seems like s/t to
which cong wouldn't grant the force of law (esp. where
it has conferred RM'ing authority on agency in other
contexts)
1. at odds w/ other basic procedures for acting w/
s/t that has force of law
4. DIS (Scalia)
a. chevron deference should be applied to statutory regime as
whole
b. ruling letter issued by HQs is authoritative b/c represents jdgmt
of agency at highest levels
c. practical consequences: resurrects skidmore; undermines
chevron's clean analysis; artificially inflates informal RM'ing;
increases uncertainty w/r/t agency positions
iii. barnhart v. walton (2002) (302) finding that SSA interpretation of disability
in litigation, even though made w/o formal procedures, warranted chevron
deference (rejecting christiansen's bright line w/r/t interpretive rules)
1. chevron deference depends in part on interpretive method used &
nature of question at issue:
a. interstitial nature of legal question (gap filling)
b. related agency expertise
c. importance of question to administration of statute
46

d. complexity of administering statute


e. careful consideration agency has given interpretation over long
period of time
f. note: the more factors met the more likely chevron deference
iv. gonzalez v. oregon (2006) (304) finding that interpretive rule issued by AG
under the controlled substance act opining that licensed physicians
administering drugs in compliance w/ the state death w/ dignity act aren't
serving "legitimate medical purpose" and are violate fed law
1. while AG has some RM'ing authority under CSA, he doesn't have
RM'ing authority w/r/t whether medical care standard is illegitimate
when authorized by state law
a. delegation of RM'ing authority to AG narrow, confined to
specific instances, not general grant of RM'ing authority -->
interpretive rule not related to those categories of RM'ing
b. when exercising RM'ing authority, AG must follow detailed
procedures
i. assumption of cong's rationality: when provide narrow
RM'ing authority, don't assume that RM'ing-like
authority can be implied in other provisions of statue
that don't share structural similarities (e.g., no
constraints on decision-making) --> assume statue
drafted consistently
2. major questions canon: assume cong don't granting agency power to
determine major questions w/o more specificity (general grant of
RM'ing power won't do)
3. outcome: interpretive rule only warrants skidmore deference where
issue doesn't fall under area where agency has RM'ing authority
a. RM'ing authority w/r/t to subject at issue is strong indication of
cong intent to grant agency interpretive authority
v. long island care at home v. coke (2007) (311) finding that DOL
"interpretation" of FLSA that exempts "companionship workers" employed by
3rd party firms (not families directly) deserves chevron deference
1. interpretation treated as reg b/c has binding impact
2. here agency appears to have broad authority under FLSA to fill in gaps
left by cong
3. additional step zero factors:
a. scope of actual agency authority
b. whether interpretation has force of law
c. process used by agency in developing interpretation (the more
formal, the better, e.g., N/C)
d. other aspects about circumstances of interpretation that would
lead ct to question whether cong actually intended to delegate
interpretive authority in that matter
i. e.g., in mead unlikley that cong wanted to delegate
interpretive authority to 1,000s of customs officers

47

VI.

VII.

vi. note: agency litigating positions articulated for first time in briefs aren't
entitled chevron deference; agency not entitled to deference when acting as
prosecutor; agency doesn't receive deference if interpreting statue enforced by
many agencies (e.g., APA)
vii. note: agencies that enforce, but do not administer (RM'ing & adjudication)
statute, don't get chevron deference; agency may administer part of statute &
enforce another (e.g., CERCLA where agency's responsibilities primarily
enforcement)
h. chevron's impact
i. chevron itself is highwater mark > later cases chip away at agency authority
ii. more certainty about who has interpretive authority --> but step zero cases
undermine this goal
deference to agency's interpretations of own regulations
a. auer v. robbins (1997), bowles v. seminole rock (1945) (383)
i. agency interpretation of own regulation is "controlling unless plainly
erroneous or inconsistent w/ regulation"
1. discretion almost unlimited subject to statutory constraints
ii. assumes agency knows what it meant the best, but may create uncertainty for
regulatory community since gives agency more discretion
1. undermines agency incentive to provide clear guidance in first place
2. may create notice problems
iii. applies much more broadly than chevron (e.g., briefs, memoranda, etc.)
iv. anti-parroting canon: no deference to agency regulations that simply track
statutory language (e.g., gonzalez v. oregon)
1. must give specificity to regulations, no statute
v. factors for invoking auer deference (long island care):
1. interpretation not just post hoc rationalization
2. reflects agency's fair & considered jgmt on issue (procedures, agency's
own course of action)
"A/C" or "hard look" review
a. APA 706: "arbitrary or capricious..."
b. remedy: remand for further proceedings in which agency may attempt to buttress
original policy choice w/ more extensive analysis & explanation
i. facilitates judicial review
ii. forces agency to explain choices
c. procedural "hard look"
i. focused on agency process, e.g. did agency follow right steps, consider right
things
1. agencies must consider alternatives, respond to counterarguments,
listen to affected interests & offer detailed explanations of their
conclusions
d. substantive "hard look"
i. substance of decision seems wrong, unjustifiable --> scrutinize the "merits" of
agency decisions to determine whether "clear error in jdgmt": was the decision
rational
ii. rare for cts to apply this standard b/c they aren't technical experts
48

e. citizens to preserve overton park v. volpe (1971) (387) finding that DOT did not
adequately explain whether funding for highway through park was justified based on
required analysis of "feasible and prudent" alternatives
i. agency must issue findings re: required statutory analysis even though statute
didn't require any procedures & decision (at local level) appears to be quasilegislative in nature (e.g., londoner / bi-metallic)
1. but holding similar to nova scotia: requirement that informal
adjudications (agency decision to distribute funds) need to produce
record for courts to review
ii. ambiguity in statutory req'ments:
1. "feasible": technical, economic, social considerations...?
2. "prudent": read in light of envtl statutory goals (need special reasons to
put road through park)
a. note: unclear whether broad statutory goals intended to be
operative in sense that they inform interpretation of key
provisions
iii. review standards:
1. want to see rational reasons for agency decisions whether there was
"clear error in jdgmt"
2. want to make sure that agency took hard look at relevant factors
a. process is relevant, but not only inquiry (n.b., in overton park
process was reasonable; problem was w/ explanation for
decision)
3. want to make sure agency followed all procedural req'ments
4. note: even if agency acting w/in substantive statutory authority, A/C
review may provide reasons for overturning decision
iv. remand for agency to develop & present "whole administrative record"
decision was based on
1. testimony from participating officials may be permitted as evidence,
but "such inquiry into the mental processes of administrative
decisionmakers is usually to be avoided"
f. note: A/C framework
i. statutory interpretation to determine scope & terms of agency's authority
(chevron) what can agency think about
ii. if agency has discretion to choose among alternatives, whether agency
exercised discretion based on relevant factors (relevant factors shaped by
statutory lang, structure & background against which cong legislated)
1. corollary: agency can't rely on factors prohibited explicitly or
implicitly by statute
a. e.g., whitman v. amer. trucking (can't consider costs) but in
entergy (can consider costs) when in both statues, cost was not
specifically allowed in relevant sections
b. statutory silence makes relevant factors harder to determine
c. agencies not required to consider factors in related but separate
statutes than one under which agency operating

49

iii.

if agency relied on right factors & followed right process, was decision
substantively valid (substantive hard look a la CNI v. bergland)
g. community nutrition inst. v. bergland (DDC 1989) (tab R) finding that FDA
decision to permit "fortified" junk food in school lunches to be "clear error of jdgmt"
given federal law requiring prohibiting non-nutritious food from being served
i. example of substantive A/C finding
h. mass v. EPA (2007) finding that EPA considered several irrelevant / prohibited
factors in deciding to deny petition for GHG endangerment finding
i. scientific uncertainty: relevant to setting public health & welfare standards,
but ct assumes that scientific uncertainty must be profound (given policy goals
of statute) before its acceptable reason to deny endangerment finding
1. statute governed by "public health" and "welfare" policy goals, though
ct takes aggressive A/C approach
ii. int'l relations (we can't do anything about global problem given 3rd party
contributions) & alternative executive branch efforts to address problem also
not relevant statutory factors (even if not explicitly prohibited by statute)
1. agency balancing of competing priorities not given much weight
2. note: usu. cts more willing to allow agency discretion to balance
competing priorities given finite agency resources except where
explicit statutory deadlines
iii. remand to agency for decision based on scientific certainty
i. motor vehicle mfr's assoc. v. state farm mutual auto insur. (1983) (395) applying a
"hard" hard look & determining that DOT's care safety regulations involving seatbelts
& airbags were A/C
i. APA defines RM'ing as promulgation, amendment & repeal of rule, so repeal
under new administration of rule allows judicial review under APA 706
1. note: inconsistent agency positions, while not prohibited, may indicate
background irrationality of agency action, prompting ct to scrutinize
more closely
ii. agency must "articulate a satisfactory explanation for its action including a
rational connection b/t the facts found and the choice made"
1. reviewing ct can't supply own reasons --> must rely on explanation
provided by agency
2. here ct assumes it knows more than agency about human behavior -->
dubious & not very deferential approach given agency expertise
iii. agency must consider "important alternatives"
1. note: may be hard to determine what alternatives quality, but
presumably includes alternative of doing nothing (i.e., status quo)
a. but may be informed by alts that agency has previously
considered &/or adopted
iv. outcome: agency must be rational, consider relevant factors & evaluate
important alternatives!
v. CON (Rehnquist)
1. a change in administration is perfectly reasonable basis for
reappraising the costs / benefits of its programs so long as stays w/ in
statutory bounds
50

j. note: politics in agency decision-making


i. politics relevant factor under most statutes
1. but politics clearly influence agency, so disclosure would promote
candor & enhance presidential accountability
ii. politics / public view may be important for pure policy jdgmts (e.g., risk
tolerance decisions)
iii. politics promote agency capture
iv. politics present judicial review challenges:
1. what's relevant evidence of public value?
2. but no review could promote agency unpredictability & politics
inherently A/C
v. infusion of politics violates technocratic assumptions about agency role
k. FCC v. fox tele. stations (2009) (412) finding under "soft" hard look review that
FCC repeal of "fleeting expletive" safe harbor for TV programming was not A/C
i. dispute b/t MAJ & DIS as to whether heightened std should be applied when
agency changes its mind though both agree that agency must supply
explanation for its policy change & that 2nd decision need not be better
substantively than first
ii. Scalia favors "light touch"
1. casual empiricism --> tends not to scrutinize data provided by agency
(esp. where seems to comport w/ ct's intuitions) & doesn't require to
"obtain" "unobtainable" data (e.g., psychological impact of swearing &
graphic violence on children)
2. technological changes make more rigorous enforcement easier, so
reasonable for FAA to move in that direction
3. deference to agency decisions as to important issues (so long as didn't
violate statutory authorization)
4. doesn't treat "independent agencies" differently
5. change in policy requires "acknowledgement" not necessarily
extensive justification
iii. DIS (Breyer)
1. focuses on agency failure to address perceived "important issue" a la
state farm
2. where independent agency (not politically accountable) particularly
important for cts to provide more stringent oversight
a. no more or less responsive to cong than other agencies but
more relative power compared to president
iv. note: case about what qualifies as "indecent" so theoretically could be
challenged as "unlawful" statutory interpretation, but ambiguity, so probably
easier to challenge as A/C
v. note: some cts may be open to consideration of "political" factors but not
clearly permitted under existing case law
1. but can't politics be accounted for through legislation?
l. procedural hard look:
i. relevant / irrelevant factors
ii. well-developed reasoning & consideration of important alternatives
51

iii. rational connection b/t facts & choice made


m. substantive hard look: did agency make clear error of jdgmt
VIII. CL standards of review
a. agency's obligation to explain
i. SEC v. chenery (tab K) (1947) refusing to uphold agency reorganization plan
denial based on reasons agency didn't provide (no post hoc rationalization)
1. encourages agencies to fully think through decisions: must provide
contemporaneous reasons
a. high chance that on remand agency will reach same decisions
2. ct will only uphold agency action on rationale provided by the agency
3. similar concern w/ A/C review
b. agency's obligation to follow own rules & estoppels
i. arizona grocery v. atchison, topeka & santa fe RR (1932) (462) finding that
ICC couldn't change quasi-legislative rules establishing reasonable rates for
RR shipping rates through subsequent adjudication even where cong has given
agency both RM'ing & adjudicative powers
1. severe notice & reliance problems created if agency allowed to repeal
its properly promulgated rules through legislation
a. as w/ cong, when acting in quasi-legislative function agencies
can only enact binding rules by following established quasilegislative procedures
2. when acting in legislative capacity, agency must follow its own rules
(unless & until they are properly changed)
a. ct provides mostly formalistic reasons for requiring agency to
follow own procedures
i. e.g., ignores problem here where parties could reap
windfalls by charging excessive rates b/c RM'ing
process must slower / less responsive than adjudications
to localize needs
3. note: if rule not properly enacted, set aside as A/C
4. note: requirement to follow own rules until properly changed not
necessarily applicable to interpretive rules, guidance, etc.
a. but see morton v. ruiz BIA use of internal, unpublished policy
violated justifiable expectations
b. see also mass. fair share v. law enforcement assistance admin
(DC cir. 1985) (466) finding that internal rules binding how
agency made decisions w/r/t fed program prohibited agency
head from making unilateral decisions re: state grants
i. but this approach not widely followed esp. where
guidance can't be found to be binding as matter law
5. note: exceptions to requirement to follow own rules include
regulations concerning internal agency procedures or where rule
waived to provide more lenient treatment
c. estoppel
i. basic rule: no equitable estoppel against gov't

52

IX.

1. would impose social costs & unfairness absent from as b/t private
parties
a. would make gov' act inconsistently & even unlawfully
b. e.g., fed crop insur v. merrill (1947) (470) finding that gov't
couldn't be estopped from denying that it told farmers that
reseeded crops were insurable even though that was incorrect
statement of law
2. note: until schwiker v. hansen, cts broadened cases where gov't could
be subject to equitable estoppel
ii. schweiker v. hanson (1981) (471) finding that gov't not bound by
misrepresentations of agency employee w/r/t eligibility of P for social security
benefits when statements caused P to miss filing deadline
1. courts can't require gov't to spend money from public treasury
2. employee didn't engage in "affirmative misconduct"
3. P didn't rely detrimentally on statement that couldn't be corrected
4. note: sets very high bar for estoppel claims, though preclude all future
estoppel claims against gov't
5. note: general assumption that agencies & their employees operate in
good faith & effectively
iii. office of personnel mgmt v. richmond (473) (1990) finding that P's reliance
on low-level agency employee false representations as to how much P could
work & still be eligible for full disability benefits didn't provide grounds for
asserting estoppel against gov't
1. appropriations clause: agencies can't spend $ beyond what cong
authorized (low level official v. cong)
a. can' apply estoppel to require payment of unauthorized funds
2. note: cong could opt to allow for estoppel in some situations (i.e.,
authorize funds for certain claims)
3. policy concern: estoppel would discourage agencies from giving
advice
a. occasional harm OK given mass justice problems faced by
agency (trade fairness for efficiency)
4. note: general assumption that agencies & their employees operate in
good faith & effectively
iv. exception to rule against estoppel: e.g., moser v. united states (470) (1951)
allowing swiss applicant for citizenship to apply for citizenship after initially
being denied in reliance on misinformation provided by state dep't b/c he
hadn't knowingly & intentionally waived his rights
1. note: some form of estoppel may be relevant in citizenship or
fundamental rights context
availability & timing of judicial review
a. reviewability
i. APA 701(A), 704: judicial review permited when (1) provided by statute or
(2) final agency action for which no other remedy provided
1. general presumption of agency review subject to some exceptions

53

2. historically more limited role for cts: decatur v. paulding (1840) (812)
finding that "interference...w/ performance of ordinary duties of
exec...would be productive of nothing but mischief"
ii. amer. sch. of magnetic healing v. mcannulty (1902) (812) finding postmaster
general has legal obligation to deliver mail independent of mail content that
postmaster finds objectionable (here, though P didn't commit mail fraud, he
was conducting mail order business involving program for mystical healing
powers)
iii. abbott labs v. gardner (1967) (816, 936) failure of FDCA statute to provide
explicitly for judicial review of FDA regulations didn't preclude ct from
reviewing under APA via fed Q jdx statute
1. only upon showing of "clear & convincing evidence" of contrary
legislative intent should cs restrict access to judicial review
a. providing for review of enumerated procedures in statute
doesn't preclude review of omitted agency actions
2. note: case main doctrinal source for presumption of judicial review
under APA
iv. statutory preclusion of review
1. implicit preclusion
a. basic rule: implicit preclusion is rare --> usually silence not
interpreted to limit challenges / reviewability
b. block v. comm. nutrition inst. (1984) (818) finding that
challenge to min prices set for milk handlers per agriculture
dep't under agricultural marketing agreement act couldn't be
challenged by consumers where statute specifically
contemplated challenges from other interest groups "entitled to
participate in development of market orders"
i. based on complex detailed statutory framework read
omission of consumer groups from list of interest
groups that could challenge rules or participate in
proceedings as signifying that cong clearly
contemplated limited challenges --> focus of statue is
milk handlers, not consumers so assume cong intended
to exclude them
ii. alts for consumer groups: consumer interests may
already be represented via handlers & could make
strategic alliances to ensure they get representation in
agency proceedings
1. assume at least some alignment of interests b/t
handlers & consumers
2. explicit preclusion
a. johnson v. robinson (1974) (825) finding that judicial review
of agency action not precluded despite clear prohibitory
language in statute when conscientious objector appealed
denial of benefits on 1st amendment grounds when not granted
them for not serving active duty
54

i. statue didn't explicitly foreclose review of


constitutional questions, so ct construes it as permitting
them
1. constitutional avoidance canon
ii. note: no statute has yet explicitly foreclosed review of
constitutional issues, so ct hasn't addressed whether
cong would have power to do so
1. concerns about damage to administrative
efficiency may also not be as great in
constitutional setting
b. note: cts tend to construe explicit preclusions very carefully:
close reading of statutory lang to find opening to review some
element of agency decision
i. e.g., lindahl v. office of personnel mgmt (1985) (827);
kucana v. holder (2010); traynor v. turnage (1985)
c. note: cong often precludes judicial review
v. "committed to agency discretion"
1. APA 701(a)(2): APA doesn't apply to "agency action...committed to
agency discretion by law"
2. early example: chicago & southern airlines v. waterman steamship
corp (1948) (829) finding that ct couldn't review civil aeronautics
board decision to award certificate to overseas air route which required
specific grant of approval from president, because the president's
discretion was informed by his role as commander in chief & his role
as foreign affairs organ for the country & grounded in foreign policy,
where courts have very limited constitutional roles
3. overton park finding that APA 701(a)(2) is "very narrow
exception" & applicable in rare instances were "statutes are drawn in
such terms that in a given case there is no law to apply"
a. options:
i. whether governing statute contains legal standards by
which to assess claim OR
ii. even if there is law to apply, factors such as nature &
importance of interest of parties, problems introduced
by judicial review , technical nature or complexity of
issues, & obviousness of any violations of law may
counsel against applying the law
4. webster v. doe (1988) (838) finding no judicial review of decision to
terminate CIA employee for being homosexual under APA but there
was review under constitutional due process claim for failing to
provide sufficient process
a. specific text (can fire whenever in "interest of US") & overall
structure & purpose of national security act (giving director
significant discretion in matters of intelligence & nat'l security)
suggest that provision allowing director to fire employee
whenever necessary shouldn't be reviewable
55

i. statute "exudes deference"


ii. separation of powers concern (re: nat'l security)
iii. commitment to agency discretion, not lack of law to
apply
b. CON (Scalia)
i. but there is law to apply (statute provides some
standards), so must locate non-reviewability in other
doctrine: judicial CL --> functional approach
1. certain issues traditionally not subject to judicial
review; look at historical role of gov't branches;
look for statutory signals of congressional intent
c. note: due process claims seem weak: lots of discretion in
statute
i. if anti-gay policy rather than case by case decision,
arguments for review slightly stronger (less concern
about specific nat'l security interests), but statute itself
still very broadly worded (so lots of room for agency
discretion)
ii. note: legal standards may be weakened when statute
also provides clear commitment to agency discretion
5. presume no review of failure to enforce (special rule)
a. heckler v. chaney (1985) (831) finding that FDA's decision
not to review drugs used in lethal injection for being "safe &
effective" for human execution & not to enforce use of
unapproved drugs wasn't reviewable b/c enforcement actions
are generally committed to agency discretion by law
i. may be enforcement stds, but ct hesitant to reverse
presumption against decisions not to enforce -->
functional concerns:
1. agency expertise; limited resources /
prioritization; probability of winning; overall
agency policies -->
a. judicial review would have few
guidelines & would allow private
litigants to drive agency priorities
ii. conceptual parallel to prosecutorial discretion
iii. failure to enforce not coercive (so less likelihood of
harm? ) --> dubious assumption w/r/t regulatory
beneficiaries
iv. exceptions to presumption of non-reviewability (fn.
13):
1. statement that agency lacks jdx;
2. adoption of general policy (that arises to
abdication of statutory responsibility)
3. note: statute may provided more guidance w/r/t
policy-level decisions; easier for ct to evaluate
56

v. CON (Marshall)
1. all agency decisions / non-decisions should be
reviewable, subject to extremely lenient stds
when involve decision not to enforce (must
enquire into agency rationale before deciding
presumption applies)
b. norton v. southern utah wilderness alliance (2004) (835)
finding that BLM hadn't violated duty to act under relevant
statutes by not protecting public lands against ORV damage
under a non-impairment mandate; by not implementing land
use plan provisions; & by failing to determine whether
supplemental EIS require under NEPA
i. note: APA 551: action includes failure to act; 706:
may compel agency action unlawfully w/held or
unreasonably delayed; may set aside actions, findings,
etc. if A/C
ii. noscituur / ejusdem: read "failure to act" consistent w/
other terms in APA --> failure must be w/r/t to
"discrete" agency action that it is required to take by
law
1. N/A to discrete agency actions not compelled by
law
2. statute contemplates some actions unreviewable
3. limits review to A/C, not de novo
iii. need specific, particularized mandate to review agency
inaction
iv. functional concern: opening floodgates to judicial
review
c. policy for review of agency inaction:
i. don't want judicial involvement in day-to-day mgmt of
agency affairs
ii. regular lawsuits would drive agency priorities
iii. inaction less coercive than affirmative action -->
RM'ing reviewable, but not in most cases failure to
promulgate rule
1. RM'ing creates concrete, particularized interest
in agency action
6. mass. v. EPA (336, 846) finding that failure to make endangerment
finding was A/C
a. action: denial of RM'ing petition
i. similar to heckler where agency made statement
explaining why it didn't enforce in particular case
ii. but under CAA citizens are given explicit right to
partition, so decision to deny RM'ing seems more like a
rule than non-enforcement decision

57

1. formalistic distinction, but creates discrete


agency obligation
b. agency has to respond to petition, but no statutory deadlines >
inaction limited by "unreasonable delay" but standards unclear
about what this means
vi. congressional ability to foreclose judicial review:
1. cong can dramatically restrict judicial review (e.g., give state cts first
crack, but only allow fed ct review on appeal to SCOTUS)
2. complete foreclosure would raise both art. III & due process concerns:
a. e.g., crowell v. benson
b. e.g., ostereich v. selective serv. sys. local bd.; wolff v. selective
serv. local d. no. 16 (849) --> courts construe preclusion of
judicial review very narrowly, finding at least some way to
allow judicial review of at least constitutional elements of
agency action
i. constitutional avoidance canon does lots of work
b. standing
i. right person to bring claim?
1. legal claim should be real
2. want adversarial interests
ii. statutory origin? limits on judicial meddling in democratic affairs e.g.,
public policy jdgmts?
iii. APA 702: codifying judge-made standing law when APA enacted, but
courts don't view this a static, modifying it based on changing perceptions,
values & needs
1. shift from CL model to more expansive standing for non-traditional Ps
esp. in regulatory cases where regulatory beneficiaries, not just
regulated entities, have some interest in outcome
a. enhances agency accountability
i. but may interfere w/ gov't functioning --> undermines
agency mgmt & decision-making
ii. agencies also have other forms of accountability -->
executive elections
iii. Ps may also have remote interest, so no incentive to
litigate thoroughly
iv. note: standing inquiry separate from merits
v. "prudential" standing
1. APA 702: C/A for persons "adversely affected or aggrieved by
agency action w/in the meaning of a relevant statute"
2. "arguably w/in zone of interests"
a. but cong can be specific w/r/t who meets this standard
3. looks at connection b/t statute & potential Ps
4. note: prudential = "good idea"
5. assoc. of data processing service orgs v. camp (1970 ) (860) finding
that data processing association has prudential standing to challenge
regulations allowing banks to compete in data processing market
58

a. "injury in fact" --> need live case


i. here economic harm from increased competition
b. "arguably w/in zone of interests to be protected or regulated by
the statute or constitutional guarantee in question":
i. examines relationship b/t P & statutory scheme
1. assumes cong intended limits on who could sue
to enforce
2. tied to assumptions about what reasonable cong
would do if deciding whether potential P should
be able to sue
ii. seems reasonable to allow data processors qua
competitors challenge expansion of banking activity
into their market where such expansion is exception to
generally strict limits on what banks can do
c. note: "zone of interests" may include aesthetic, conservational,
recreational & economic values
i. economic injuries almost always w/in zone of interests
6. air courier conference v. amer. postal workers union (1991) (865)
finding postal workers union not w/in "zone of interests" under statues
granting postal service monopoly over letter routes in order to
challenge decision by postal service to suspend that monopoly
(allowing private competition)
a. statutes designed to protect postal service revenue from "cream
skimming" by competitors on highly profitable routes, not to
protect postal workers jobs
b. later amendments to statutes dealing w/ postal workers jobs
didn't purport to amend provision at issue (seems to be
provision-specific inquiry, though may also be read as
separating statute dealing w/ postal service monopoly from
statue dealing w/ postal service employment --> distinct focus
means distinct protected interests)
7. nat'l credit union admin. v. first nat'l bank & trust co (1998) (866)
finding that banking association had standing to challenge decision
under federal credit union act to allow credit unions to represent
multiple, non-related customers having separate "common bonds"
a. competitors have interest in limiting markets that credit unions
can serve, which aligns w/ statutory purpose intending to limit
banking mkt for credit unions
b. note: potential Ps need not be from class of Ps statutes intend to
benefit
c. DIS (O'Connor)
i. broad reading of zone of interests means all Ps w/
injury in fact would have standing
8. broad version: statute does something that P has an interest in i.e.,
there is some alignment or conflict b/t Ps' interests & statutory
objectives (most cts)
59

a. nat'l air traffic controllers assn. v. pena (872) (9th cir. 1996)
holding that air traffic controllers assoc. w/in zone of interests
of statute governing contracting out public services & could
sue decision to privatize certain air traffic control services
9. narrower version: must show cong intent to provide for enforcement
by P (postal service)
a. e.g., federation for amer. inmmigation reform v. reno (DC cir.
1996) finding that P residents in miami area didn't have
standing to sue over AG regulation under immigration statute
allowing cuban nationals into US when in "the public interest"
b/c immigration cong didn't intend statute to protect local areas
from stresses associated w/ immigration (e.g., housing, schoolcrowding, etc.)
b. e.g., cement kiln recycling coalition v. EPA (DC cir. 2001)
(873) competitors of regulated entities can't challenge
agency behavior under envtl statutes; see also ranchers
cattlmen action legal fund v. dep't of agriculture (cattle
procedures w/ economic & human health concerns not w/in
zone of interests of NEPA)
10. "any person" can sue: removes door to prudential standing (benett v.
spear)
a. taking "any person" at face value augmented by two
considerations:
i. interest in overall subject matter common to all persons
ii. purpose of provision is to encourage enforcement by
"private attorney generals"
11. bennett v. spear also finding that particularly challenged provision
seems to apply to challengers where they would be harmed by
haphazard decision-making under the ESA
12. "generalized grievances": Ps may not bring suits for generalized
grievances / shared by many or all people (related to constitutional
injury in fact inquiry)
vi. "constitutional" standing: needs to be "case or controversy"
1. concern re: separation of powers
a. standing limits interference in political process (e.g., denial of
standing when grievance shared by citizens at large rather than
borne by individuals or limited group)
2. injury in fact
a. sierra club v. morton (1972) (874) holding that envtl org
didn't have cognizable injury in fact to sue to prevent
development of mineral king ski area where only injury
asserted was "ideological"
i. cognizable injuries: (1) economic, (2) aesthetic, (3)
recreational, & (4) conservational
ii. injury in fact requires more than injury to cognizable
interest: P must also be among injured (direct injury)
60

1. can't just abstract interest in case


2. want P to have "skin in game": incentive to
litigate
b. note: direct injury requirement
i. cts shouldn't make political decisions --> must vindicate
concrete rights
ii. alt political processes to deal w/ political concerns
iii. ct decisions not about value preferences --> make sure
people following law
iv. concern that many organizations may not have clear
ideological purpose, so won't fight case thoroughly
(more likely for agency to win)
c. united states v. SCRAP (1973) (877) finding injury in fact
requirement satisfied by student group suing ICC for failure to
prepare EIS w/r/t impacts from nat'l railroad rate increase b/c
Ps alleged more litter & pollution would result in specific harm
to parks used by Ps
i. "the trifle is the basis for standing & the principle
supplies the motivation" --> injury need not be
significant
ii. harm alleged was specific & perceptible injury that
distinguished them from general class of citizens
1. even if widely shared harm, shouldn't undercut
individual right to go to court
iii. note: procedural stage may have made difference when
comparing w/ sierra club v. morton: here at M/D stage,
so assume all pleadings to be true
iv. note: highwater mark for injury in fact (later cases push
back on broad scope of cognizable injury)
1. e.g., animal legal defense fund v. espy (DC cir.
1994) (916) denying standing where harm to
imminent when P alleged that regulations under
animal welfare act insufficient & would cause
her to suffer bad experiences w/ laboratory
supervisors in future work b/c all species she
was likely to work w/ weren't protected -->
injury wasn't "imminent" enough per lujan
v. note: direct injury rule not necessarily good w/r/t
weeding out non-serious Ps (over & under-inclusive)
d. valley froge christian college v. amers. united for separation of
church & state (1982) (879) art. III aspects of standing:
ensures due regard for autonomy of persons most likely
affected by judicial decision; prevents judicial process from
becoming "vindication of value interests of concerned
bystanders;" prevents judicial process from becoming public
policy debate forum & helps maintain separation of powers
61

e. note: organizational (associational / representational) standing:


hunt v. wash. state apple advertising comm'n (1977) (880)
i. organization may sue on behalf of members if: (1) its
members would otherwise have standing to sue on own,
(2) interest sought to protect germane to org's purpose
& (3) neither the claim asserted nor relief requested
requires individual participation in suit
f. lujan v. defenders of wildlife (1992) (880) finding that Ps
seeking to challenge agency decision that ESA didn't apply to
federally funded project abroad didn't meet injury in fact
requirement where Ps couldn't show a "concrete" enough
interest in agency decision
i. Ps must show concrete & particularized, actual &
imminent injury not hypothetical or conjectural
ii. "mere interest" not sufficient
iii. here Ps didn't show any specific, imminent intent to
return to foreign areas where interests in viewing /
researching wildlife likely to be jeopardized by agency
decision --> Ps need to have clear future plans to return
to area
iv. CON (Kennedy)
1. noting that cong has broad power to define new
cognizable injuries
2. contemplating legitimacy of ecosystem, animal
& vocational nexus theories under different
circumstances (rejected by plurality)
v. procedural injury (fn. 23): person asserting procedural
right to protect "concrete interests" need not meet all
normal stds for immediacy & redressability
1. concrete interests must exist separate from
procedural concerns
2. but certainty of redress N/A b/c agency may still
reach same conclusion on remand
3. see also sugar cane growers coop v. veneman
(DC cir. 2002) (925) allowing challenge to
failure to follow N/C proceedings even though
gov't could reach same decision if used N/C
proceedings: where procedural injury "P...never
has to prove that if he had received the
procedure the substantive result would have
been altered. all that is necessary is that
procedural step connected w/ substantive result"
g. note: bounty provisions:
i. qui tam actions: where cong provides for Ps to recover
bounty for bringing claims, reward itself viewed as
concrete interest
62

h.

i.
j.

k.

l.

ii. note: unclear why this is better than interest in endanger


species preservation in terms of litigation interest
allen v. wright (1984) (893) rejecting injury in fact when Ps
part of class action alleging that IRS failed to implement policy
denying tax-exempt status to private schools that discriminated
on basis of race
i. "stigma or denigration" is cognizable interest, but Ps
must show they are among the injured class i.e., must
show denied equal treatment b/c of IRS actions
note: claim assignments (private qui tam action) found to
satisfy injury in fact requirements (e.g., sprint comm. v. APCC
services) (2008) (895)
note: special solicitude
i. mass. v. EPA(2007) (888) finding that state satisfied
injury in fact standing prong where climate change
threatened state's coastline where state can clam interest
independent of & on behalf of citizens
1. w/ both procedural right & state stake in
protecting quasi-sovereign interest, state entitled
to special solicitude in standing analysis
2. harm = damage to coastline
a. imminency requirement N/A where
special solicitude?
ii. note: special solicitude not finding a lot of traction in
subsequent cases involving group suits
note: generalized grievances
i. mere fact that injury widely shared doesn't make it noncognizable (FEC v. akins (1998))
ii. generalized problems may still create specific,
individualized harms (e.g.., mass. v. EPA w/r/t climate
change)
note: increased risk (897)
i. generally not compensable at CL; but at least facially
consistent w/ injunctive relief, which grants relief based
on anticipated future harm
ii. int'l bhd. of teamsters v. pena (DC cir. 1984) finding
that truck drivers had standing to challenge DOT
regulation allowing mexican truck drivers licensed
under more lenient std to drive in US b/c would
increase risk to US truck drivers on road
iii. baur v. veneman (2d cir. 2003) finding standing for
consumer worried about increase health risk from
failure to ban "downed cattle" b/c increased risk of
contracting dangerous disease counts as injury in fact
(limited holding to food / drug safety)

63

iv. public citizen v. NGTSA (DC cir. 2007) not finding


injury in fact where tire safety regulation would make
all car drivers less safe, not just ones bringing suit
v. summers v. earth island inst. (2009) denying injury in
fact to envtl groups where no specific member of group
shown to use area at issue & rejecting theory that group
had injury if statistical certainty that someone from
group would visit area in indefinite future
vi. monsanto v. geerson seed farms (2010) finding injury
in fact when conventional farmers challenged GMO
regulations based on concern that they would increase
change that conventional crops infected by new strain
3. causation/redressability
a. relevant injury must be result of D's actions & likely to be
remedied by decreee in P's favor (linda r.s. v. richard d (1973))
b. mass. v. EPA(2007) (888): no dispute re: manmade GHGs,
climate change & coastal impacts --> EPA can regulate
substantial emissions via car standards, so incremental
"causation" fairly strong; slowing or reducing global warming
cognizable remedy
i. DIS (Roberts)
1. contribution from cars relatively minor & cause
is global problem --> creates problems for
causation / redressability but unclear that agency
actions would alleviate problem
c. simon v. eastern ky. welfare rights org (1976) (900) finding
no standing where, although injury occurred, changing hospital
regulation would not necessarily alter hospitals actions in this
instance
i. standing requires "injury that fairly can be traced to
challenged action of D & no injury that results from
independent action of some 3rd party not before the ct"
d. bennett v. spear (1997) (tab w) finding causation /
redressability in challenge to issuance of biological opinion
under ESA w/r/t kalamath water project by private interests
where issuance of opinion essentially imposed new legal
standards that reclamation bureau must comply w/ if its actions
are lawful under ESA takings prohibitions
i. even though bureau of reclamation takes final action in
dam mgmt & was not before the ct (3rd party), USFWS
determinations as to whether project would threaten
endangered species had "determinative effect" as to
how project would be undertaken
e. duke power v. carolina envtl study group (902) (1978) finding
standing where Ps living near nuclear plant claimed priceanderson act, which limits liability over privately owned
64

f.

g.

h.

i.

nuclear plants, violated EP & DP by depriving them of CL tort


remedies
i. "casual causation": w/o projection from vast liability,
utilities might not be able to afford to build plant
ii. "redressability": if act declared unconstitutional, plans
wouldn't be built & lakes wouldn't be harmed
iii. DIS (Stevens)
1. "string of contingencies" holding case together
"too delicate": effect on power plant
construction questionable as well as possibility
that Ps would even be injured so that they could
assert their DP rights violated
allen v. wright (903) finding that even though P could show
injury due to diminished ability to receive education in racially
integrated school, causal connection b/t gov'ts grant of tax
exempt status to discriminatory schools & desegregation of
public schools attended by P was too attenuated
i. string of independent contingencies b/t gov't action &
public school segregation in specific P's community
ii. DIS (Stevens)
1. noting that subsidies presumed to encourage or
discourage behavior --> basic economics
principle provides support for both causation &
redressability
note: how injury defined may affect whether causation /
remedy prongs met
i. e.g., denial of right or opportunity may allow in broader
redressability arguments than more specific outcomeoriented harm (northeastern contractors)
ii. e.g.., risk-based harm also may also expand causation /
redressability --> show favorable outcome more likely
but see lujan where injury described very concretely &
public citizen, denying that increased risk was
cognizable injury & noting that "increased-risk claims
would drain actual or imminent requirement," thereby
unconstitutionally expanding judicial role)
iii. regulatory statues often designed to address
probabilistic harms, which creates tension w/ ct desire
to characterize harms as CL-based
note: questions of causation / redressability as questions of
hard factual issues
i. e.g., center for auto safety v. thomas (DC cir. 1988)
disagreeing w/ P's characterization that regs would have
impact on car design in short term
1. note: seems to rely in part on judicial intuition
note: standing as source of separation of powers tension
65

i. broad art. II standing would allow judicial


intermeddling w/ executive branch prerogative to make
sure laws executed
j. note: objects of regulation v. beneficiaries of regulation
i. lujan states that objects of regulation presumptively
entitled to standing, whereas beneficiaries must make
stronger showing --> leaves open question as to how
much cong can control standing inquiry
vii. standing summary:
1. constitutional requirements:
a. injury in fact
b. injury must be caused by D's allegedly unlawful conduct
c. injury must be redressable by decree in P's favor
2. prudential requirements
a. P must be arguably w/in zone of interests of statute
b. P must be asserting own legal rights, not those of 3rd party
c. injury must not be "generalized"
3. organizational requirements
a. individual members must have standing
b. litigation must be germane to organization's purpose
c. individual participation in suits unnecessary
c. timing
i. finality & ripeness
1. 704: review of "final agency action"
2. finality:
a. agency must come to natural resting place (not preliminary)
b. legal consequences must flow from decision
3. ripeness: whether appropriate to have judicial review at given time or
whether parties (cts, agency, parties challenging agency action) would
benefit from waiting
a. look at positions of 3 parties involved in case (ct, agency,
parties) --> factors:
i. hardship parties will suffer from delay in review
1. if injury concrete / adverse immediately,
supports earlier review under agency analysis
ii. effect of delay / review on agency: whether judicial
review give agency guidance that weighs in favor of
earlier review or whether interfere w/ internal agency
decision-making process that upsets agency functioning
iii. effect of delay on ct: whether ct can evaluate issues
now (purely legal?) or would benefit from further
development of issues through agency action
4. separation of powers concerns in background:
a. prohibits ct from deciding abstract, theoretical, or advisory
opinion

66

i. if agency actions subject to change, has characteristics


of advisory opinion
ii. if no concrete injury right now, decision looks advisory
b. factors are "balancing test" --> outcome may be unpredictable
but still decided by cts
c. occasionally congress says when review may be appropriate or
not
i. e.g., oil pollution act --> must file petition for review
w/in 90 days of reg RM & can't seek review on those
issues otherwise
ii. allows & requires pre-enforcement review
5. abbott labs v. gardner (1967) ( 936) ("everytime rules") industry
challenge to FDA regulation requiring that generic drug name must be
used on label in conjunction w/ proprietary name to promote price
competition
a. pre-enforcement review: not specifically allowed by statute,
but general presumption of reviewability
b. apply balancing test:
i. concrete impact on Ps --> need to spend $$ labeling
products or have clear potential to get hit w/ big fines
ii. pure legal question --> ct won't benefit from waiting for
agency enforcement
iii. agency may benefit from getting clarification from cts
c. note: ct seems to ignore benefits that others may get from
regulation (concerned only about regulated entities) & doesn't
presume that agencies generally do good job, avoid making
mistakes & abusing discretion, etc.
6. toilet goods assn. v. gardner (1967) (940) finding that challenge to
FDA's "free access" rule, requiring that color additive facilities permit
FDA investigators to access their facilities, wasn't ripe for review
during pre-enforcement challenge
a. application of rule e.g., when access what be sought & on
what grounds FDA would deny certification unclear, so legal
question not well defined
i. judicial resolution of relevant issues would benefit from
specific case
b. compliance w/ rule not very expensive (no irreversible burden),
so unlikely to impose major hardship on challengers while
waiting for opportunity to seek review
c. but agency decision is final
7. note: pre-enforcement review almost always allowed (toilet goods is
exception) & may be provided b cong &/or preferred by agency e.g.,
heckler v. campell (soc. sec. grid case)
a. compliance costs saved
b. uncertainty re: legality of rules resolved
c. all affected parties receive similar treatment
67

d. regulators held strictly accountable --> can't suppress legal


contests through enforcement compromise
e. but may also encourage delay in complying w/ rules & preenforcement review contributes to ossification of RM'ing
8. note: can almost always challenge rule after enforcement
9. statutory preclusion of pre-enforcement rearview
a. implicit preclusion: CERCLA limits pre-enforcement review &
unless non-compliance w/ cleanup orders "substantially
justified," D can face treble damages; allowing preenforcement review would hobble EPA's ability to get prompt
site cleanups (core statutory policy)
i. e.g., wagner seed v. dagett (2d cir. 1986) (946)
ii. e.g., fed mine safety & health amendments act of 1977
(allowing agency to require posting of mine worker
representatives & issuing violations for failure to do so
w/o pre- enforcement review)
b. nat'l automatic laundry & cleaning council v. shultz(DC cir.
1971) (947) finding pre-enforcement review OK for opinion
letter (non-binding guidance) re: applicability of FLSA to coinoperated laundry & dry cleaning industry
i. although not binding, guidance still gets skidmore
deference, so may have some legal impact
ii. agency finalized decision-making, so can be no undue
judicial interference from resolving question
iii. pure legal question: to whom does statue apply
iv. decent hardship on P: while guidance doesn't have
immediate legal force, P still faces tough dilemma as to
whether to comply or to face stiff fines
c. note: even less formal agency statements warranting skidmore
deference have concrete impacts that may justify judicial
review
10. reno v. catholic social services (1993) (949) finding that preenforcement review of regulation imposing residency requirement for
statute that would grant amnesty to aliens wasn't ripe unless aliens
took affirmative steps so the regulation would apply to them
a. agency decision-making final
b. purely legal issue
c. but hardship perceived not to be great & rather than imposing
costs, regs would deny benefit
i. note: controversial conclusion b/c can't take advantage
of benefit w/o running risk of being deported
11. gordon v. norton (10th cir. 2003) finding agency action not ripe for
review when USFWS responded to rancher inquiry about wolf
reintroduction w/ a letter state its plans for the program
a. not ripe for review b/c agency hadn't finished its decisionmaking process (as indicated by the letter)
68

b. note: raises question as to interaction b/t ripeness doctrine &


agency delay
12. nat'l park hospitality assoc. v. DOI (952) (2003) finding that NPS
regulations purporting to render fed contract dispute statute
inapplicable to concession Ks (giving Ps procedural protection) wasn't
ripe for review
a. agency decision-making final
b. costs created by legal uncertainty insufficient hardship to
trigger review:
i. here Ps concession bidding or future contract structure
might be affected, but regulation doesn't impose
immediate costs
ii. speculative rather than concrete harm won't trigger
review (whether harm felt depends on host of future
agency actions & decisions)
c. further factual development would aid court in review (e.g.,
claims revolved around specific contractual aspects)
d. conclusion that "reg" is really a general statement of policy b/c
NPS doesn't have RM'ing authority under particular act also
limits immediate binding effect of agency action (no concrete
impact)
13. note: if agency not done thinking about decision, then may not be
final; even where indicia of finality may argue against judicial
interference
a. kixmiller v. SEC (DC cir. 1974) (949) relying on difference
b/t advice from low-level employee & agency head to deny
review of staff-level advice
b. but see NRDC v. EPA (DC cir. 1994) (949) finding EPA
position on CAA SIPs reviewable based on FR statement
justifying adoption of regulations & letter from subordinate
official to org opposed to EPA position when "agency views its
deliberative process as sufficiently final to demand compliance
w/ its announced position" (formal statements not necessary)
14. finality:
a. for agency action to be final, decision-making process must
have reached a resolution & come to a halt, at least for the
present
b. benett v. spear (tab W):
i. agency action final when (1) it marks the
consummation of agency's decision-making process &
(2) it is one from which rights or obligations have been
determined or from which legal consequences will flow
c. franklin v. massachusetts (1992) (958) finding that
transmission of census data (challenged as A/C under APA) by
commerce sec'y to president not a final agency action

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i. action that creates direct effect on parties is president's


statement to congress, not sec'y's report to president
1. but president not considered agency under APA,
so his action wasn't reviewable, though final
ii. note: formalistic analysis when compared to "ripeness"
doctrine where willing to review actions that aren't
legally binding but that have big consequences (e.g.,
shultz)
ii. waiver & exhaustion
1. exhaustion: whether P has taken all necessary steps are precondition to
filing suit
a. claim hasn't been presented to agency at all
b. part of claim hasn't been considered by agency
c. all possible steps by agency haven't been taken
2. myers v. bethlehem shipbuilding (1938) (959) (classical exhaustion
requiremrent) finding that P couldn't file claim for injunction against
agency action in dist. ct. w/o first completing agency administrative
process challenging NLRB order
a. P doesn't argue that agency procedures themselves are unlawful
or unconstitutional
b. administrative process determined by statute (implied statutory
preclusion of judicial review early in process)
i. allowing ct intervention would frustrate cong plan for
solving problems
c. cts should allow agency to exercise expertise
i. saves ct time, esp. if agency corrects own errors
ii. early judicial review would weaken agency
d. P's cost not given much weight since they're only litigation
related
e. note: P must always present claims to agency first
3. note: may be some instances were initial determination of agency
jurisdiction appropriate for cts: (1) clear evidence that exhaustion will
result in irreparable injury; (2) agency's jurisdiction plainly lacking; &
(3) agency's special expertise won't be of help on question of jdx
(EEOC v. karuk tribe housing authority (9th cir. 2001) (961)
4. note: DC cir & some statues require party seeking review of
lawfulness of agency rules to have participated in agency RM'ing
proceedings
a. exceptions: when agency considered particular issue sua sponte
or when raised by other parties
5. interlocutory review of unexhausted claims:
a. kuehner v. schweiker (3d cir. 1983) (964) 3 part test:
i. issue substantially collateral to merits i.e., resolution
key to dispute outcome or can it be decided w/o
intruding on agency consideration of substance

70

ii. usefulness / futility of exhaustion i.e. whether agency


already taken position; whether issue something related
to agency expertise
iii. hardship / harm on P from denying review
b. social security exceptions to exhaustion:
i. mathews v. eldridge (allowing waiver of exhaustion of
administrative remedies when agency doesn't object to
review on waiver grounds)
1. note: P may still be required to present claim to
agency first (though need not exhaust
administrative remedies)
c. jurisdiction & procedure exceptions:
i. interlocutory review available where agency has plainly
exceeded its statutory authority (skinner & eddy corp v.
united states)
6. waiver or unpresented or unexhausted claims
a. woodford v. ngo (2006) (969) finding that prisoner can't bring
constitutional claim in fed ct under 1983 until prisoner has
exhausted all the administrative remedies that were available
per state law (where prisoner claiming that solitary
confinement deprived him of his religious liberties)
i. proper exhaustion (admin la): agency has made
decision on merits --> can't by pass agency procedures
1. v. habeas exhaustion: can bring fed claims when
other remedies aren't available, whatever the
reason
ii. administrative exhaustion means that where agency
procedures not used, P has no claim in fed cts
iii. functional concerns:
1. promote exercise of agency expertise
a. reduce judicial interference
b. allow agency to correct own errors
i. less applicable in this context
where claim rooted in
constitution (de novo review),
not regulations, but still driving
court decision
2. agency procedures may help preserve evidence
3. reduces P incentive to bypass agency procedures
a. habeas reading would promote noncompliance
4. here P denied fed ct review b/c failed to meet
timeline for filing in agency
a. note: severe problems where state prison
systems have really strict procedures for
seeking relief
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b.

c.

d.

e.

iv. DIS (Stevens)


1. concern about accountability of prison system,
not frivolous lawsuits
2. concern re: notice (short filing deadlines)
waiver doctrine:
i. related to exhaustion: parties waive right to raise certain
issues on appeal unless they were presented to the
agency
ii. e.g., franklin cnty v. donovan (2d cir. 1982) (974)
finding that exhaustion required for conscientious
objector claims in part b/c claim depended on factual
issues that agency was in best position to resolve
iii. but see, etelson v. office of personnel mgmt (DC cir.
1982) (974) allowing litigant to raise issue on appeal
that had been raised against agency several years before
b/c it put agency on notice, the agency's position was
firmly fixed & P didn't have enough info until recently
that issue was important
jones v. bock (2007) (975) acknowledging that proper
exhaustion requirements set by the administrative proceedings
themselves, but that courts could be somewhat flexible in
determining whether adherence to the requirements had been
occurred (e.g., stating a claim w/ enough specificity)
darby v. cisneros (1993) (975) finding that appeal w/in
agency not required when the pursuit of appeal was not
expressly required by statute or agency regulation i.e.,
exhaustion only for required steps that must be taken by P
CSX transportation v. surface transportation bd. (DC cir. 2009)
affirming that P not bound by issues not raised while
following optional process --> need only raise issues for appeal
to cts during required procedures

congressional control of agency action


I.
cong has control over almost all subject matter discussed by agencies, but may be limits
on how that control is exercised
II.
methods of accountability:
a. statutory control
b. direct involvement in agency actions
c. informal means of cong control
d. agency structure
III.
statutory control
a. broad v. specific statutory standards (e.g, FTC v. CERCLA cleanup standards)
b. revise agency actions through legislation
c. impose procedural restrictions
i. general procedural statutes; APA, FOIA, FACA
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IV.

V.

ii. policy-based procedural statutes: PRA, NEPA


d. restrict agency budgets
i. (also substantive restrictions in appropriations bill (e.g., wolf delisting)
direct involvement in agency actions
a. INS v. chadha (1983) (77) finding "legislative veto" unconstitutional
i. legislative veto: allowing specified congressional action to nullify agency
action if undertaken w/in specified time
1. effectively repeals law, but doesn't follow constitutional law-making
procedures
ii. DIS (White)
1. if agencies can make law w/o following constitutionally specified
procedures, then cong ought to be able to condition agency lawmaking
on forms of congressional approval (functional oversight)
a. relies on N&P clause
b. congress not making law, but preserving status quo
i. but congress often changing legal rights / duties that
have been conferred
iii. note: no more legislative vetoes of agency actions (legislative & judicial)
b. note: incentive for cong to deliberate properly first time it passes statute (e.g.,
intelligible principle)
c. note: legislative vetoes concentrate power in cong (don't just give it to another
branch); increase agency dysfunction through cong interference; undue cong's policy
commitments w/o deliberation (though "intelligible principle" requirements may be
so broad as to make policy commitments hard to identify)
d. note: less concern w/ cong interference where agency acting in legislative capacity?
e. congressional review act:
i. exempts cong from otherwise applicable procedural delays when changing
agency actions
ii. cong has 60 days to pass joint resolution (must be signed by president)
disapproving major regulations (with > $100M impact on economy)
iii. used very rarely
1. exception: ergonomics rule
iv. encourages amendments to agency actions w/o lots of deliberation, but
president & cong in agreement that agency exceeded its powers or made
questionable decision, then agency power should be limited
f. proposed reins act:
i. would require passage of joint resolution of approval before major regulation
(with > $100M impact on economy) becomes effective
g. other options would require formal RM'ing for all rules
i. increase agency accountability but stifle them in general
less formal means of congressional control
a. oversight hearings: force agencies to explain themselves
b. letters to agency / ex parte contact w/ agency
i. expect agency response b/ cong has budget power, subpoena power
1. may also want cong allies

73

VI.

ii. only limits on ex parte contact in formal RM'ing / adjudication but still
possible to contact cong members
iii. DC fed'n of civic assoc. v. volpe (DC cir. 1971) (tab x) finding that DOT
decision to provide funding for DC bridge was A/C b/c relied on influence
exerted by congressman, not on statutory factors (same statute as overton
park)
iv. sierra club v. costle (DC cir. 1981) rejecting A/C challenge to NSPS under
CAA that were promulgated after consultation w/ industry & congressional
representatives
1. source of pressure: (1) industry comments submitted by cong after
formal comment period & (2) meeting w/ sen. byrd threatening to
expand / contract agency powers
a. force agency to fully consider comments from coal industry
b. forces agency to fully explain rationale for adopting chosen
approach (regardless of what was chosen)
c. note: nothing explicitly illegal
2. what matters is whether agency relied on statutorily relevant factors:
a. ex parte contacts raise concerns when not in accordance w/
proper procedure, when the nature of those contacts is
substantively relevant to issue, & agency actually relies on
those contacts in making final decision
i. i.e., agency must not rely on irrelevant reasons for
promulgating rule
b. source of info, so long as relevant, doesn't matter as much as
what formal explanation agency provides for its decisions
(must still be justifiable on the record)
3. note: assume RM'ing takes place in political context
v. note: agency reliance on cong views in decision-making
1. seems more democratic, but threatens apolitical technical reputation
2. can't base rules on cong views alone --> other substantive statutory
req'ments
3. cong could pass legislation if more widespread disagreement w/
agency actions
a. interference by fewer members of cong looks more like
legislative veto
b. presumes later cong better understand past cong intent than
agencies & cts
c. constituent case work
i. time intensive
ii. ad hoc, not systematic, way to shape agency priorities
agency structure: independent agencies
a. independent agencies include limits on power of executive to remove key officials
b. main indicators:
i. limits on removal (primary sign)
ii. multi-member comm'n (deliberative structure, but may include legislative &
adjudicative function s
74

c.
d.
e.
f.

iii. fixed terms of office


provides appearance of neutrality
shifts power from president, but not necessarily to cong
senate confirmation power also used strategically to limit exec / agency power
"for cause" discharge: neglect, malfeasance of duty, inefficiency....
i. president can't fire just to replace / limits ability to dismiss for policy
disagreement
ii. potential to interfere w/ executive prerogatives
1. e.g., taking care to faithfully execute laws
a. but executing law implies following what it says
2. executive control over agency decisions critical to constitutional
allocation of power (unitary executive theory)
a. but actual explicit presidential powers extremely anemic
iii. myers v. united states (1926) (107) finding that cong may not impose
removal limits on purely executive officials (here, removing state postmaster
required advice / consent of senate)
1. required consent increased cong power vis-a-vis president
2. postmaster has strictly executive authority
3. broad lang suggesting maximum presidential power / min cong
interference: "president must have power to remove...w/o delay";
executive power implies control over administrative agencies
4. note: concedes cong limits on removal of "inferior officers" where
cong has control over "appointment of such inferior officers as they
think proper"
iv. humprehy's executor v. united states (1935) (108) finding that "for cause"
limit on executive removal of independent agency head was permissible under
constitution
1. note: when dismissed "for cause," P can challenge president's decision
2. FTC has legislaitve, judicial & enforcement powers --> less of core
executive function than in myers (so limits myers holding to solely
executive officers)
v. bowsher v. synar (1986) (124) finding that cong limits on removal (i.e., "for
cause" & joint resolution of cong) of executive officer (comptroller general
who has authority over executive budget mgmt)
1. cong cant' encroach on president in removal of core executives
2. cong can't reserve power to itself for removal
vi. free enterprise fund v. PCAOB (117) (2010) finding that cong can't limit
removal of nested independent agency to "for cause" only by overarching
independent agency heads (subject to "for cause" removal by president)
1. note: no role for cong in removal; intent to protect independent agency
members who do job despite political pressure
2. primary concern: restrictions on executive power
a. president has no meaningful removal power: relies on SEC to
act in good faith to fire PCAOB

75

i. only influence president can have is if SEC failure to


fire PCAOB members is grounds for "for cause"
removal of SEC members
3. note clear that double layer protection enhances public credibility of
agency (i.e., not clearly more neutral)
4. note: unusual for ct to assume statutory lang that creates constitutional
question (contrary to constitutional avoidance canon)
a. here assumed that SEC was independent agency (though
analyzing this question might upset long-standing reliance on
SEC as independent agency)
5. note: shows that limits on executive power as well as allocation of
removal power to cong may create problems
6. note: uncertain whether holding applies only to removal of agency
heads or to removal of inferior officers (civil service) too
a. DIS (Breyer)
i. lots of jobs in gov't protected by double layer for cause
vii. note: policy of removal
1. not clear how much removal limits actually curb presidential
influence, since president has variety of ways to influence agency
heads
a. loyalty / control over selection of agency personnel
b. budget requests (OMB)
c. introduction of substantive legislation
executive control of agency action
I.

II.
III.

IV.

policy reasons for control


a. want top elected official to have control over gov't
b. president can give agencies direction --> policy framework, priorities
c. president can coordinate agencies
i. reduce redundancy
ii. increase efficiency
executive constitutional powers
a. appointment & implied removal
b. seek opinions from principal (superior) officers
informal pressure: loyalty / firing / ex parte contacts
a. e.g., sierra club v. costle (WH contacts influence stringency of emissions std) -->
agency may meet w/ presidential staff
b. plan B example --> where no clear substantive difference b/t providing plan B to 17
& 18 year olds, greater role political influence to drive agency actions
i. agencies still potentially limited by reliance on non-statutory factors
1. compare entergy v. riverkeeper w/ whitman v. amer. trucking
a. common sense may shape judicial view of what additional or
extra-statutory factors relevant (e.g,. no consideration of
foreign policy in mass v. EPA)
directives /EOs
76

a. formalized version of informal pressure: limited legal effect


i. create no enforcement rights
b. centralized review of agency actions
i. nixon, reagan
ii. OIRA (OMB)
1. small but powerful office
2. must approve major final rules before published in FR
3. location in OMB gives OIRA leverage (e.g., affect agency budget
requests)
4. position allows OIRA to see regulatory impacts across gov't (so may
be biased against regulatory impacts)
iii. EO 12,866
1. publication restrictions
2. forces agency to consider additional factors (beyond what's in statute):
CBA, impact to specific segments / communities, etc.
3. agencies requested to take presidential priorities into account
iv. allows coordination & oversigh: agencies still do most work
v. promotes presidential regulatory priorities
vi. gives agencies detailed 2nd opinion
vii. creates additional information for legal challenges
viii. centralized review generally N/A to independent agencies, but obama
encouraging them to take WH priorities into consideration
1. tension w/ perceived neutrality of independent agencies
a. but may be more legitimate b/c of increased democratic
accountability
c. OIRA outcomes
i. limited info, b/c agencies not required to identify changes made b/c of OIRA
influence (which may occur before OIRA official review)
1. often pre-clearance & informal contacts
ii. general trend toward less protective regulations
iii. conflict resolution: when disagreement b/t OIRA & agency elevate to VP or
president --> shifts power from agency
iv. subverts cong intent
1. when statute delegates authority to "president" as opposed to
"administrator" it states so specifically
a. note: when statutory authority given to president directly,
president can delegate to executive agency
2. tensions b/t assumptions of executive control over agencies &
presumption that executive control must have limits
d. e.g., OIRA ozone rule withdrawal
i. questionable reasons
ii. potential to raise whitman v. amer. trucking problems
e. political involvement
i. legitimacy depends on reasons
1. need more transparency to determine motivations
a. e.g., substance v. agency capture
77

2. maybe range of acceptable reasons, but at extremes may cause


agencies to act in A/C manner & taint agency operations
ii. agencies as democratically accountable agencies or sources of deliberative
technical expertise

78