Property Interests

Under Goldberg v. Kelly, state statutes can be a source of property

interest in employment. Goldberg established that a government benefit is
not a gift that be withdrawn at will but is a form of property which can
trigger due process rights. The key right in Goldberg was a right to a
hearing before the benefit terminated. The hearing had to be tailored to the
needs of the beneficiaries, and since they were poor and could not afford
lawyers and probably could not present an adequately written statement,
they were entitled to an oral hearing and to orally present evidence and
cross-examine witnesses. Matthews limited Goldberg to its facts and
found that while other benefits such as disability payments were also a type
of property, they did not mandate pre-termination hearings like welfare
benefits do because of a grave need.
Where there is no explicit state statute, some courts have found
entitlements implied in contracts or terms of employment such as in
Sindermann.

Presidential Control
Independent agencies are created by Congress and operate
independently. An agency like the SEC would be an independent agency.
The commissioners serve for fixed terms that usually overlap Presidential
terms and can only be removed for cause. Because it is an independent
agency, the resident cannot set SEC policy through Executive Branch
oversight and cannot direct the agency through Executive Orders. The
rationale here is that independent agencies must be free to operate without
partisan political constraints. In the case of the SEC, it engenders trust in the
in the market and SEC decisions.
Cabinet-level agencies, such as Health & Human Services, are an
Executive Branch agency with a single head who serves at the pleasure of
the President. The Executive Branch sets HHS policy, in line with
Congressional statutory mandates. The President can modify, through
Executive Orders, HHS policy, but again within statutory mandates.
OIRA may review actions and regulations of Executive Branch agencies
in order to ensure consistency and compliance with Executive policy. OIRA
review may not override Congressional mandates or N&C rulemaking. Since
independent agencies are not bound to follow Executive Branch authority,
OIRA has little authority over them.

N&C Rulemaking

Pursuant to 553 of the APA, an agency engaging in N&C rulemaking

must publish a proposed rule in the Federal Register with a period for public
comment. The agency must respond to all comments. Once the comment
period is closed, the agency must publish a final rule that will go into effect
at a fixed date in the future. The final rule must be modified consistent with
the comments, or the agency must provide a written explanation as to why
the agency did not adopt the comment. The final rule must conform to the
logical outgrowth test (Cite) and not materially alter or substantively
depart from the terms or substance of the proposed rule.
In order to contest a rule, a challenger could claim failure of notice.
Under that theory, one would claim that the final rule differs so significantly
from the proposed rule that there is essentially an issue of inadequate
notice.
If the deadline for contesting the rule has passed, then there are still
ways to contest. The first claim would be to say that rule exceeds the
agencys statutory or constitutional authority. Another option would be to
petition the agency for an amendment or rescission because of a substantive
flaw other than statutory authority, then appeal the denial of that petition.

Promulgation Of Rules
Because the APA 553 says that any interested person can petition for
the issuance, repeal, or amendment of a rule and 555 requires the agency to
answer all petitions and provide reasons for a denial, those decisions are
reviewable. However, Mass. v. EPA makes it clear that such a review is
extremely limited and highly deferential, probably only overturned in cases
of a plain error of law or a fundamental change in the factual premises
previously considered by the agency. So basically, you can challenge it, but
best of luck, you'll need it.
But whether or not to enforce regulation is entirely committed to the
discretion of the agency, and thus there is a presumption that such decisions
are not reviewable, except in rare cases where the governing statutes limit
the discretion of the decision to enforce (where it says "shall make a ruling in
cases of...., or that sort of thing). Think of it like a cop--most of the time, they
have complete discretion on who to arrest and what tickets to write. But in
some cases, the legislature has said "In this instance, you are required to
arrest so and so...in those cases, failure to arrest the person would definitely
reviewable by a board or court or whatever, but in general the decision to
arrest or not is at the cop's discretion.

Judicial Review
An agencys actions are subject to a presumption of judicial
review. In undertaking such a review, the court may set aside agency action
only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law (Overton Park & APA 706(2)(a)). In making such a
determination, the reviewing court must consider whether the decision was
based on a consideration of all the relevant factors (Overton Park). Though
the scope of review is narrow (State Farm), the court must still conduct a
thorough, probing, in-depth review of the agency's decision (Overton
Park).
An agency rule is arbitrary and capricious if the agency has relied on
factors which Congress has not intended it to consider (Mass. v. EPA),
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it cannot be attributed to agency expertise
or a difference in viewpoint (State Farm). Agency actions have a
presumption of validity. As long as an agency considers relevant factors and
can articulate a rational connection between the facts found and the choices
made, then its decision will be upheld (State Farm). Moreover, when an
agency's action relies on scientific and technical information touching upon
the agency's area of expertise, a court is particularly deferential (Brand X).
If an agencys decision could have been reached by a rational person, then
the decision will be upheld, even if the reviewing court would have reached a
different conclusion (Allentown Mack). The court does not undertake its
own fact-finding, but instead reviews the administrative record assembled by
the agency to see if the decision is supported by a rational basis, taking into
account whatever in the record fairly detracts from the agencys position
(Universal Camera). A decision will only be reversed for lack of substantial
evidence if the record shows that no reasonable factfinder could have
reached the same conclusion. Also taken into consideration is whether the
agency considered only the factors that Congress intended them to (Mass.
v. EPA).
When a case involves a challenge to final agency action, review is
limited to the administrative record and the grounds for decision invoked by
the agency (Chenery). A reviewing court may not accept post-hoc
rationalizations for an administrative decision, and may not allow an agency
to reach the correct result via incorrect reasons (Chenery). If an agency
fails to support its decision with reasons on the record at the time the
decision was made, Chenery requires remand.
When Congress delegates to an agency the authority to interpret and
apply a statute, appellate courts review the agency's actions under the twostep process from Chevron. If the intent of Congress is clear, that is the
end of the matter, and the Court will apply the statute accordingly. But if a
statute is unclear on the point in question, the Court will defer to the
agency's reasonable interpretation. An agency's interpretation of its own
regulation is controlling unless plainly erroneous or inconsistent with the
regulation being interpreted (Long Island Care).