ADMINISTRATIVE LAW OUTLINE

SPRING 2019 – MAY 6TH, 2019

I. What are the threshold questions? (Constitutional requirements for litigation)

A. Does the court have Jurisdiction?
1. Subject matter jurisdiction is granted by Statute; or
2. Federal question jurisdiction is always available.
B. Is there standing?
1. Is there Art. III standing? Lujan
Judicial power of the US extends to “cases and controversies” – requires sufficient connection between the plaintiff and lawsuit.
a. Injury in fact (Injury must be “concrete and particularized & actual or imminent, not conjectural or hypothetical.”). Lujan
1) Is it a generalized grievance?
2) Does party have stake in outcome?
3) Is it an economic harm/money issue? (Data Processing)
a) If government action or inaction, injures a person in some real or concrete fashion.
4) Is injury imminent? Lujan
b. Traceability (Causation).
1) Is there a direct relation to harm?
2) Injury is “fairly traceable” to the defendant's action being challenged?
c. Redressability. Simon (indigent hospital patients’ case)
1) Can injury be repaired by requested relief?
2) “Substantial likelihood” that the injury is “redressable” if the court grants the requested relief.
2. Cases
a. Lujan v. Defenders of Wildlife
H: Court of appeals failed in denying the Secretary’s motion for summary judgment as respondents have not made the
requisite demonstration of at least injury (rejects “ecosystem nexus,” “animal nexus,” and “vocational nexus” arguments)
and redressability
Rule: The party invoking federal jurisdiction bears the burden of establishing these elements and each element must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof, e.g. the manner and degree
of evidence required at the successive stages of litigation (not mere pleading requirements)
b. “Substantial Risk” that the Harm will Occur: where conventional alfalfa farmers will have to conduct testing to find
out whether their crops have been contaminated and will have to take other measures to reduce the risk of contamination,
they have standing to sue APHIS for deregulating genetically engineered alfalfa. The court used a “reasonable probability”
or “substantial risk” standard to determine how likely the events would occur. Monsanto Co. v. Geertson Seed Farms
c. “Certainly Impending”: the standing inquiry is more rigorous when the court would have to decide whether an action
taken by one of the other two branches (in matters such as intelligence gathering and foreign affairs) is constitutional. The
threatened injury must be certainly impending, and a party cannot manufacture standing by choosing to make expenditures
based on hypothetical future harm that is not certainly impending. Clapper v. Amnesty Int’l USA
1) Facts: 1881(a) allows the Government to use surveillance to gather info on communications with suspect people in
other countries. Lawyers and media people challenged this, but the court found they did not have standing.
3. Representational or organizational standing – organization can sue on behalf of member(s)
a. Member has standing (injury, causation, redressability)
b. Purpose of organization relation to subject matter of lawsuit
c. Member does not need to bring suit - injunctive or declaratory relief
C. Is there Prudential Standing [Statutorily Defined Standing, §702]? (ADPSO; Akins)
1. Zone of Interests test. (Did Congress intend to put P within zone of protected interests?)
2. Does the statute encroach on bare requirements for Art. III Standing? Lujan
3. Federal Elections Commission v. Akins (S. Ct., 1998)
H: Standing where injury in fact was inability to obtain information requiring disclosure under a statute, important that injury
was about voting
D. Is the P a regulated party (economic loss?) or beneficiary? Allen (easier f/ regulated Ps)
1. Judicial micromanagement allowed with right Π where government ACTS and Overregulates.
2. A large class of citizens may have standing if the injury is not abstract. Akins
E. Does the court have reviewability? Abbott Labs (presumption of reviewability under APA)
1. Is the court precluded by statute? APA § 701(a); Directly or Implicitly
a. Abbott Laboratories v. Gardner
H: In a challenge to Federal Food, Drug, and Cosmetic Act regulations requiring labels, advertisements, and other printed
matter relating to prescription drugs to designate the established name of the particular drug involved every time its trade
name, the Court found that nothing in the FDCA precluded this action
Rule: The APA embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” so long as no statute
precludes such relief or the action is not one committed by law to agency discretion; need clear and convincing evidence of
Congressional intent to overcome presumption of judicial review, not enough that some acts are made reviewable to
exclude reviewability of others
b. “Clear and Convincing Evidence”: the court clarified this is met and the presumption favoring judicial review is
overcome, whenever the congressional intent to preclude judicial review is “fairly discernible in the statutory scheme”
Block v. Community Nutrition Institute
H: Where milk market orders implicitly precluded from review as consumers are not a part of the system and therefore
Congress did not want consumers to challenge it.
 2. Is it committed to agency discretion by law? Heckler; Overton Park (i.e. is there law to apply?)
a. Heckler v. Chaney (S. Ct., 1985)
H: In a challenge that drugs used by states for human execution were not approved for such uses, the court found that the
presumption that agency decisions not to institute proceedings are unreviewable is not overcome by the enforcement
provisions of the FDCA
Rule: Even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a
court would have no meaningful standard against which to judge the agency’s exercise of discretion.
b. Unreviewable Agency Termination (Discretion): there is no basis on which a reviewing court could properly assess an
agency termination decision where the statute states the Director may terminate someone whenever they “shall deem such
termination necessary or advisable in the interests of the United States.” The only way they could determine whether he
acted properly is cross-examination which is not allowed. Webster v. Doe
1) Facts: CIA employee had good performance and met all requirements. However, when he informed a CIA security
officer that he was a homosexual, he was removed. The CIA argued section 102(c) of the NSA essentially made their
decision to terminate unreviewable.
F. Has the agency performed an agency action?
1. 5 U.S.C. § 551(13) – “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act.”
G. Is the timing proper for review?
1. Is the matter ripe for review? Abbott Labs
a. Are the issues fit for judicial review?
b. Will the party suffer hardship if review is denied?
2. Is there appropriate finality? APA § 704(a)
a. “final agency action for which there is no adequate remedy in a court”
b. Test 1, two requirements – (1) agency must be finished with it, (2) is it sufficiently direct and immediate to affect day-to-
day business of someone? (practical consequences)
c. Test 2 – action from which right or obligations have been determined or from which legal consequences flow
d. Abbott Laboratories – factors in determining finality –
1) Whether challenged action is definitive statement of agency’s position
2) Whether actions have status of laws with penalties for noncompliance
3) Whether impact on plaintiff is direct and immediate
4) Whether immediate compliance was expected
e. Cases
1) Taylor-Callahan-Coleman Counties District Adult Probation Department v. Dole
H: Opinion letter regarding overtime requirements for probation officers is not a final agency action – issued to
someone else, not district (could seek own opinion letter and challenge); not generally applicable (in response to
discrete injury); no direct or immediate impact on district (no immediate action required); no definitive statement of
policy or status of law
2) S. Ct. in Sackett – compliance order to stop filling wetland and take remedial actions is final agency action because
subjects them to $25,000 in penalties a day (legal consequence)
3) S. Ct. in Hawks Co. – jurisdictional determination from Corps is final agency action (look to both practical and legal
consequences (re combine tests))
3. Did the party exhaust administrative remedies?
a. (1) Does the statute or agency require exhaustion? (2) Is administrative action inoperative (does not take effect) pending
review/appeal? Darby v. Cisneros – APA says is a final agency action unless statute requires you to exhaust your
administrative remedies
b. Agency Issue – if you raise an issue before the court, you better have raised it before the agency, courts will not consider
arguments not first presented in an administrative proceeding
c. By filing appeal or invoking existing administrative procedures, can make decision no longer final
d. Non-APA Case
1) McCarthy v. Madigan
H: No exhaustion requirement here because cannot award monetary damages, record accumulated would not help
later during judicial review, agency does not have expertise in interpreting this area
Rule: Must exhaust administrative remedies unless exception applies
Exceptions: Three exceptions where hardships to party may outweigh exhaustion benefits (for non-APA only) – (1)
undue prejudice to subsequent court action (e.g. short period to file appeal), (2) administrative remedy not adequate
(e.g. challenging constitutionality), beyond what agency can do, (3) administrative adjudicatory party that you are
required to appeal to is biased against you and therefore appeal is a pointless exercise

II. What type of Judicial Review Should the Court Use?

A. Is it a factual or legal determination?
1. Factual (Substantive Decisions: Agency promulgates a rule and reaches two types of decisions – (1) Relevant Facts; and (2)
type of rule using facts to choose best regulatory option)
Analysis: (1) Scope of Review – In/Formal; (2) Review the whole record; and (3) Adequate explanation (below).
 a. Formal proceedings (§§ 556 & 557)? (substantial evidence test; APA § 706(2)(E)—Univ. Camera, Allentown Mack
Sales) Highly Deferential Standard
1) Could reasonable juror reach same conclusion as agency? (in considering record)
a) Universal Camera Corp v. NLRB
Rule: Reviewing court not barred from setting aside a decision when it cannot find substantial evidence
supporting that decision is substantial when viewing entire record, including opposing evidence.
2) Evidence regarding credibility? (if agency disagrees w/ ALJ, more likely to reverse)
a) ALJ Deference: the ALJ makes a finding and agencies may make its decision de novo. Because the ALJ’s
decision was part of the whole record, a reviewing court must take it into account when assessing whether an
agency has substantial evidence for its findings and conclusions. A judge should take particular note when these
conclusions are based upon the demeanor of the witness in the hearing. Universal Camera
b) No Deference Where IJ’s Conduct is Improper: Highly deferential where the IJ’s credibility determination is
supported by “specific, cogent reasons that bear a legitimate nexus to the finding.” No deference “to credibility
determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility
determinations based on speculation or conjecture, rather than on evidence in the record.” Torres v. Mukasey
i. Facts: An IJ declined a request for asylum, the board affirmed, and the 7th Circuit vacated and
remanded b/c of the IJ’s conduct. “The IJ’s overactive role during the hearings, his demonstrated
impatience (language barrier), his improper lines of questioning, and his reliance on personal
knowledge beyond the facts in the record tainted his credibility findings.” Effectively ups the level of
scrutiny.
c) He Said, She Said v. Witnesses: “When a finding by the presiding official has been reversed by the board, the
board’s decision is vacated unless the board has articulated a sound reason, based on the record, for its contrary
evaluation of the testimonial evidence.” When faced with only conflicting determinations concerning
credibility, the PO is without question the better judge of who to believe. But where the incident is the subject
of direct testimony by another witness, the board’s weighing of the evidence is more complete than just the
PO’s credibility determination. Jackson v. VA
i. Facts: Employee removed for sexual harassment, the PO reversed based on credibility determinations,
the board reversed the PO, and this court found the PO should be given deference for incident A (only
he said, she said) and the board’s decision should govern incident B (another direct witness testified).
b. Informal proceedings? (arbitrary and capricious standard)—§ 706(2)(A)).
1) Substantial Inquiry Test:
a) Scope of authority: Properly construed his authority and then acted reasonably pursuant to that authority;
b) Actual choice made was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”;
c) Necessary procedural requirements; and
d) Consideration of the relevant factors and whether there has been a clear error of judgement.
2) SCOTUS: Act prohibited Secretary of Trans from building highways through the park unless showing there are no
alternatives and all planning will minimize harm. The District and Circuit courts allowed the Sec. to plan the building
of a 6-lane highway and the Supreme Court reversed and remanded b/c the Secretary did not state any reasoning.
Although inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The
court is not empowered to substitute its judgment for that of the agency. Overton Park
2. Legal
a. Is it a decision-making process challenge? (§ 706(2) – Arbitrary and Capricious: Applies to all reviewable administrative
actions)
1) Does the agency action satisfy State Farm hard look review? (~ A&C standard)
a) Rely on irrelevant factors congress did not intend to consider?
b) Entirely failed to consider an important aspect of the problem?
c) Offered an explanation inconsistent with evidence before agency?
d) Did the agency rely on post-hoc justifications? Overton Park
e) Is agency rescinding an old rule? (courts scrutinize closer)
b. Is it a procedural challenge? (§ 706(2)(D) – Look at where it fits in APA box) Key questions below:

Rule Making Adjudication

Informal § 553 (notice, comment, general § 555 (ancillary)
statement of purpose) DP clause
o Vermont Yankee o Chem. Waste Mgmt

Formal § 556-557 § 554, 556-57

o Florida East Coast Railway o Seacoast

1) Does agency have choice between rulemaking and adjudication (or non-legislative)? Chenery (yes)
a) Analysis: In determining which to apply consider – does statute require one method or another? What was
historically done? Did issue arise in respect to a particular person/business or did agency decide to address
issue?
b) Generally applicable to an entire class of parties  RM Bi-Metallic
i. RM is the preferred policymaking method for agencies because it allows agencies to make clear,
comprehensive decisions in a legislative process in which the agency can benefit from extensive public
input and thus make better policy decisions.
ii. Ambiguous Rules: it is a violation of due process to let an agency enforce a reasonable interpretation of
its regulations if the defendant did not have fair warning of what was substantially required by the
regulation and punished. General Electric Company v. U.S. Environmental Protection Agency
 iii. Retroactivity: NO retroactive RM! (unless Congress says it’s okay)
c) Particularized to the situation of a regulated party  ADJ Londoner
i. Agencies often announce new rules of decision in an opinion arising from ADJ. This practice has been
challenged on the ground that the APA’s definitions require RM as the procedure for formulating
general rules. The Supreme Court has rejected these challenges, although not definitively, stating that
the choice between ADJ and RM lies largely within the discretion of the agency. Bell Aerospace
Company
ii. Chenery Balancing Test:
(1) Agency decisions are judged on the reasons stated by the agency at the time the decision was
made (Chenery I)
(2) Agency choice of procedures is within its informed discretion (Chenery II)
iii. Retroactivity:
(1) Partial: apply the new rules in ADJ to the parties to that ADJ but to everyone else prospectively
(typical)
(2) Abuse of discretion if applied new standards but punish prior occurrences.
d) Non-Legislative
i. Two types:
(1) Interpretive rules – agency’s construction of statutes and rules it administers, could probably be
applied retroactively (always interpreted this way)
(2) Policy statements – manner in which agency proposes to exercise discretionary power,
prospective
ii. Rule: Test for policy statements v. legislative rules – (1) Does it have present or future effect (present =
not policy statement); and (2) discretion left to agency vs. bright line rule (discretion left to agency =
non-legislative), sometimes consider (3) agency characterization at time of adoption. American
Hospital Association v. Bowen
iii. Intent to Exercise: Test for interpretive rules v. legislative rules – (1) adequate basis for enforcement
without interpretive rule (if yes, interpretive); (2) published in CFR (but this factor no longer exists);
(3) did agency invoke legislative authority (if no, interpretive); and (4) does it effectively amend a prior
legislative rule (if no, interpretive) American Mining Congress v. Mine Safety & Health
Administration
iv. Congressional Purpose: The starting point of the analysis is the agency’s characterization of the rule
and whether new rights and duties are created. Determine whether the interpretation relies upon the
language of the statute and its legislative history (intent of Congress satisfied). Metropolitan School
District v. Davila
v. Estoppel Determinations
(1) No Estoppel – Agency Statements: The Government may not be estopped on the same terms as
any other litigant. BUT the court stated it was hesitant to say there are no cases in which the
public interest in making the Government immune from estoppel can be outweighed by the
private citizen interest. Heckler v. Community Health Services
(2) No Estoppel – Violation of Constitution: The Court again clarified in another case that
erroneous oral and written advice given by a Government employee to a benefits claimant may
NOT give rise to estoppel against the Government and entitle them to a monetary payment not
permitted by law. Again, the court stated they will not state estoppel is never allowed. OPM v.
Richmond
(3) Estoppel – Violation of Due Process: The Department of Employment Security is estopped from
denying benefits to a person on the ground that she made insufficient efforts to find work, over a
period of time in which the department led her to believe that her efforts were sufficient. Appeal
of ENO (New Hampshire Department of Employment Security)
2) Is it rulemaking? (§ 553) Florida East Coast Railway (if RM, presume informal)
a) Informal; Formal; or Hybrid?
i. Informal rulemaking – requires N&C (notice in the Federal Register, receive public comments)
ii. Formal rulemaking – §§ 556 & 557
(1) Presumption against formal rulemaking – statute must require “rules to be made on the record
after an opportunity for agency hearing” or otherwise make clear that formal rulemaking is
required (e.g. “requires formal rulemaking”) (Florida East Coast Railway Co.)
iii. Hybrid rulemaking – any rulemaking procedure going beyond APA N&C procedures, virtually every
rule does this now
(1) Courts cannot impose hybrid rulemaking on an agency: Agencies are free to grant additional
procedural rights in the exercise of their discretion, but reviewing courts are generally not free to
impose them if the agencies have not chosen to grant them. Vermont Yankee Nuclear Power
Corp. v. NRDC
b) Factors favoring RM: Bi-Metallic (affect many; prospective; make policy)
c) Was there proper adequate notice? (logical outgrowth test). Chocolate Milk
i. “sufficient to fairly apprise interested persons of the issues involved, so that they may present
responsive data or argument.”
ii. Changes in the original plan “are in character with the original scheme,”; and
iii. Final rule is a “logical outgrowth” of the notice and comments already given.” (not logical outgrowth if
materially alters or substantially departs)
 (1) Facts: That commented does not mean had adequate notice – removed chocolate milk from list
without providing adequate notice that the elimination of flavored milk would be considered,
instead said trying to eliminate sugars generally. Chocolate Manufacturers Ass’n v. Block
d) Was comment period sufficient? Nova Scotia (opp to respond to scientific data)
i. Opportunity to comment “through submission of written data, views, or arguments; and APA does not
mandate any specific time period but typically allotted 60 days or more.
e) Did the agency give a proper statement of purpose?
i. Preambles: after consideration of the relevant matter presented, to incorporate in the rules adopted a
concise general statement of their basis and purpose.
f) Can you waive notice/comment (Exceptions)?
i. Subject Matter
(1) 553(a): This section applies, . . . Except to the extent that there is involved – (1) a military or
foreign affairs function of the United States; or (2) a matter relating to agency management or
personnel or to public property, loans, grants, benefits, or contracts.
ii. Character of the Rule
(1) 553(b)(3): Except when notice or hearing is required by statute, this subsection does not apply —
(A) to interpretative rules, general statements of policy, or rules of agency organization,
procedure (Air Transport), or practice; or (B) when the agency for good cause finds . . . That
notice and public procedure thereon are impracticable, unnecessary, or contrary to the public
interest.
i. Merely elaborate old rule (no N/C nec.) or substantive departure?
g) Is it agency non-enforcement of a rule? Heckler (no jud. rev. per §701(a)(2))
i. But…is there pattern of non-enforcement? Heckler (Brennan, concurring)
ii. Does the action violate const. rights?
iii. Is the agency refusing to enforce own rule? (“We win!” defense)
3) Is it adjudication? (§ 554, 556-57).
a) Factors favoring adjudication: (Londoner) (few affected, particularized facts)
b) Formal or informal? Seacoast (presume formal); Chem Waste Mgmt (informal – overturned presumption)
i. No presumption – if statute is ambiguous, apply Chevron to agency’s interpretation (seems to be the
controlling test – substantive challenge)
c) Formal: Does statute state “on the record” or “after hearing?” Florida E. Coast Rlwy
i. When a statute does not require a hearing “on the record,” formal adjudication may be required in
certain circumstances; the agency’s interpretation of the level of formality will be determined under
Chevron review. Chemical Waste Mgm’t, Inc. v. U.S. EPA
d) Informal: When an agency makes a decision informally, the only procedural requirements are: (1) notice of the
decision; and (2) a brief statement of the reasons for the decision.
i. When an agency makes a particular decision that does not result in a rule (and it does not affect an
individual in a way that requires formal adjudication – “hearing”) it may be proper for the agency to act
without following any APA procedural mode. Overton Park
4) Can court require additional procedure? Vt. Yankee (no, unless req’d by following)
a) Due Process (Londoner)—see discussion below for informal adjudication
b) Organic statute requires more than APA, or agency regulation
c) Unjustified depart f/ procedures or extremely compelling circs?
c. Is it a substantive challenge? (§ 706(2)(C): Statutory Interpretation – Applies to legislative rules/formal adjudication)
1) Is the agency interpretation inconsistent w/ the statute? Chevron/Mead test:
a) Step Zero: Does the Chevron deference apply? (Statutory Interpretation – “Not in accordance with law” or in
excess of statutory jurisdiction, authority, and limitations)
i. Mead: agency act pursuant to authority Congress thought is force of law?
ii. Christensen: Interpretations contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law do not warrant Chevron style deference. But they are
“entitled to respect” under Skidmore, but only to the extent that those interpretations have the “power
to persuade.”
b) Step One: Is the statute clear and unambiguous; has congress spoken to the issue unambiguously?
i. If yes, no deference to agency!
c) Step Two: If no, is the agency’s answer/interpretation based on a permissible construction of the statute; is the
agency action reasonable?
i. If yes, defer to agency interpretation. Chevron
ii. If ambiguous & lacks force of law (e.g. policy statement), apply Skidmore deference (power to
persuade/based on agency expertise). Christensen
iii. If it raises constitutional questions, less deference? Rust (O’Connor dissent)
iv. Is agency interpreting a law it is charged to administer? (if no, don’t defer)
2) Is agency Interpreting Agency Regulation? Seminole Rock/Auer
a) Strong deference to agency’s interpretation of own regulation because it becomes controlling weight.

III. Did the statute or agency action violate separation of powers? (§ 706(2)(B) – Contrary to Constitutional Right)
A. Approaches
1. Formalistic Approach – (legislative, judicial, executive) Whether the power is being exercised by an inappropriate branch?
2. Functional Approach – Whether Congress has gone too far in commingling of powers by using a “core function” test.
a. Core Function – Approves commingling of powers as long as one branch’s exercise of a power does not jeopardize the
“core function” of another.
 b. President is not an “agency” per the APA. Franklin v. MA
B. Was there a delegation of judicial; legislative; executive authority? (scrutinize judicial more closely than other delegations)
1. Was there encroachment? Schor (O’Connor said no b/c Art. III Ct plays role)
2. The judicial power of the U.S. may be vested only in courts whose judges enjoy the protections set forth in Art. III. (Stern v.
Marshall – Bankruptcy Court ruled over counterclaim; unconstitutional due to lack of judicial power)
C. Violation of Non-delegation? (Whitman)
1. Did Congress provide an intelligible principle?
a. Congress doesn’t violate prohibition against delegating its legislative powers as long as it sets the boundaries of the
agency’s authority
1) Cannot be broad and ambiguous – but public interest is sufficient
2) Cannot delegate to private parties – seems to not apply where private entity is subject to federal oversight
3) Congress did not declare a policy, standard, or rule – authorized but didn’t say when
b. Cases
1) “When conferring decision making authority upon agencies, Congress must lay down an intelligible principle to
which the person or body authorized to act is directed to conform.” The court has found there is no need to include
“determinate criteria.” It must be requisite (sufficient, but not more than necessary). Whitman v. American Trucking
Ass’n.
D. Does the statute limit executive authority?
1. General
a. Congress may not appoint officers of the U.S. It can only appoint persons whose function is limited to an investigative or
informative nature, not officers who engage in adjudicative, legislative, or enforcement functions. Buckley v. Valeo.
b. Congress cannot have removal power over roles with executive duties. Its only power is through impeachment. Bowsher v.
Synar.
2. Overview Analysis
a. Who is an officer (either kind) as opposed to an employee?
1) Officer of US  exercises significant authority pursuant to law of US (Buckley/Edmond)
2) Employees  lesser functionaries, subordinates to officers; exercise no discretion or authority to administer federal
law
a) Employees don’t render final decisions
b. How do we distinguish principal and inferior officers?
1) Generally:
a) Principals are high-level officials in the exec branch and heads of independent agencies; cabinet members and
commissioners of independent agencies are principals because there is no one in the gov’t hierarchy between
them and the President
b) Inferiors are lower-level executive officials who are under the supervision of other executive officials beneath
the President
2) Function Test (removal, limited duties, limited jurisdiction, limited tenure) (Morrison)
3) Subordinate to a principal? (Edmond)
c. Who can exercise the appointment power for inferior officers?
1) President
2) Courts of Law
3) Heads of Departments
3. Did it affect removal power? Myers (postmaster firing ok); Humphrey’s Executor (FTC)
a. Myers – Congress cannot restrict President’s power to remove purely executive officers
b. Humphrey’s Executor – Congress can reasonably limit removal power for quasi-legislative and quasi-judicial appointees
c. New Test (Morrison): Congress can limit the President’s removal power so long as the limit does not impermissibly
interfere with the President’s exercise of his Article II functions (functional approach, as opposed to formalistic approach
of separation of powers)
1) Has Congress actually tried to limit the President’s removal power?
a) Does the statute list reasons for which the President may remove the officer: OR
i. Explicitly (i.e. “may only be removed for…”)?  Congress has probably attempted to limit removal
power
ii. Not explicitly (listed potential reasons for removal)? Look to other factors in the text of the statute to
determine intent of Congress.
b) If the statute is silent on removal, is the officer removable at will?
i. If the office is executive in function, assume absolute removal power (i.e. Attorney General). The power
of removal is incidental to the power of appointment.
ii. If not executive in function, Congress probably intended to limit the President’s removal power
d. Dual Layers of For Cause Removal Unconstitutional: Cannot restrict President’s power to remove too much. It is
unconstitutional for the President to be restricted in his ability to remove a principal officer who is in turn restricted in his
ability to remove an inferior officer. Free Enterprise Fun v. Public Company Accounting Oversight Board.
4. Did it affect Appointment power?
a. Did it pertain to a principal or inferior officer? Morrison (IC = inferior)
1) Morrison v. Olson:
a) Question 1: Is appellant an inferior officer or a principal officer?
i. She is subject to removal by a higher Executive Brach official;
ii. She is empowered by the Act to perform only certain, limited duties;
iii. Her office is limited in jurisdiction; and
iv. Her office is limited in tenure.
 b) Question 2: Even if appellant is an inferior officer, does the Clause empower Congress to place the power to
appoint such an officer outside the Executive Branch?
i. On its face, the language of the “excepting clause” admits of no limitation on interbranch appointments.
Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to
determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts
of Law.”
2) Appointment of Inferior Officers: The Court found the Morrison test is NOT definitive and this court focused on
whether the position is directed and supervised at some level and subject to removal without cause. Edmond v. U.S.
E. Is Legislative control implicated?
1. Did the action aggrandize the legislative branch? Bowsher (can’t delegate authority to agency over which it has control);
Immigration and Naturalization Service v. Chadha (One-House Veto Unconstitutional)
a. Congress cannot reserve right to veto rules or orders, must meet presentment and bicameralism requirements.
2. Does it circumvent the bicameralism or presentment clauses?
a. Bicameralism: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and a House of Representatives.” Art. I, Sec. I.
b. Presentment: “Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a
Law, be presented to the President of the United States.” Art. I, Sec. 7
3. Legislative Action (Chadha Test): when is an action a legislative action (such that it must comply with B&P)? Yes = Favors a
finding of legislative act.
a. Who is acting?
1) Congressional acts are presumed legislative.
2) Agency/Presidential acts are presumed executive.
b. Does the act have the “purpose and effect of altering the legal rights, duties, and relations of persons”?
c. Is the only other way to achieve the same result through legislation?
d. Is the action a policy determination?

IV. Did the agency action violate P’s procedural due process rights? (Informal Adj – § 555: Constitutional Safeguard)
“No person shall . . . be deprived of life, liberty, or property, without due process of law”
A. Step One: Quick check for Government Action and Individualized Decision-Making
1. Individualized decision-making factors – number of people affected, extent of impact on each person, factual basis for
determining impact (Londoner)
2. General regulations do not trigger due process (too burdensome) (Bi-Metallic Investment Comp)
3. Cases
a. Individualized: Where a subordinate body has the duty of determining whether, in what amount, and upon whom it shall
be levied, the persons affected are entitled to a hearing. This is because “a relatively small number of persons was
concerned, who were exceptionally affected, in each case upon individual grounds.” Londoner v. Denver
b. Class of Individuals: Where the legislation has applied tax increase to everyone, a hearing comporting with due process is
unnecessary for the resolution of legislative facts, which do not concern the immediate parties but are the general facts
which help the tribunal decide questions of law and policy and discretion. Bi-Metallic Investment Co. v. State Board of
Equalization
B. Step Two: Is there a protected right?
1. Property interest?
a. Look to independent sources (state common/statutory law; no bitter-sweet (Loudermill))
b. Must have legit claim of entitlement. Roth; Sindermann (reliance=entitlement)
1) Does admin scheme give much discretion to agency? Roth (if so, not legit entit.)
c. Cases
1) Welfare = property: loss of a government entitlement, such as a welfare benefit, had the same adverse impact on a
person as when the gov’t deprived someone of private property. Goldberg v. Kelly
a) Citizens have an expectation entitlement are protected, not doing this only protects property of the rich, and
these benefits are a matter of “statutory entitlement for persons qualified to receive them.”
b) Welfare was an entitlement, if the person met the requirements, they were entitled to it (rather than non-
guaranteed benefits).
2) Refusal to renew teaching K does not = property: a person must have a legitimate claim of entitlement and was not
entitled to be employed after his contract was over. Board of Regents v. Roth
3) Implied Tenure K may = property: when a person had a one-year contract, which was renewed for 4 years, he
argued he had an implied agreement with the college for tenure because of the environment the school created due to
a clause in the contract. Perry v. Sinderman
a) If under state law there was an implied K, he would have a “legitimate claim of entitlement.”
2. Liberty interest? (e.g. stigma, harm to reputation)
a. Look to Constitution and Sup. Ct. cases
1) Denial of Profession: Expanded to include all of “those privileges long recognized as essential to the orderly pursuit
of happiness by free men.” Due process applies where someone denies or revokes a person’s license to engage in a
profession. Meyer v. Nebraska
2) “Stigma-Plus” Test:
a) Government action (posting names of public drunkards) that adversely affects a person’s reputation & ability to
purchase alcohol might be a denial of liberty without any adverse impact on the individual’s job opportunities.
“Where a person’s good name, reputation, honor, or integrity is at stake.” Wisconsin v. Constantineau
b) Reputation alone, apart from some more tangible interests such as employment or ability to purchase alcohol, is
not “liberty” or “property” by itself sufficient to invoke due process requirements. Paul v. Davis
 i. Facts: police put up flyers with a list of “active shoplifters.” The court found this was permissible and he
could still sue for defamation.
c) Necessary Factual Dispute: there must be some factual dispute between an employer and a discharged
employee which has some significant bearing on the employee’s reputation. Codd v. Velger
i. Facts: a patrolman in a probationary position was dismissed and he argued the stigmatizing effect cause
by subsequent derogatory material given to his future employers was subject to due process. The court
found he did not, but must, contest the information in the material given (that he held a gun to his head).
d) Government Created Liberty Interests: where the government has affirmatively granted a prisoner some
right, the deprivation of that liberty or right triggers due process. Decision to revoke parole triggers due process.
Morrissey v. Brewer. “Good time” credit system, by which inmates could reduce their sentences. Wolff v.
McDonnell
e) Prison Discipline: disciplinary segregation was not an interest b/c it is “ordinarily contemplated by a prison
sentence.” Sandin v. Conner However, a deprivation incident to a conviction may be outside the terms of
confinement ordinarily contemplated by a prison sentence (supermax prison, mental hospital).
f) Pre-termination process for discharge only for cause: the process that is due is provided by a pre-termination
opportunity to respond, coupled with post-termination administrative procedures as provided by Statute.
Cleveland Bd. Of Ed. v. Loudermill
i. Facts: The Board of Ed. dismissed a security guard and he could only argue against it after when
appealing to the CCSC.
g) Level of Stigma Required: liberty interest is implicated where the employer levels accusations at the employee
that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges
(dishonesty, immorality, criminality, racism, or the like). Shands v. City of Kennett
i. Facts: voluntary fire fighters discharged for “insubordination and misconduct” does not meet this level.
C. Step Three: Mathews Balancing Test
1. Factors:
a. The strength of the private interest affected by the gov’t action; Goldberg (“grievous loss”; terminate welfare); Mathews
(disability).
1) Stronger interest of being free from deprivation (e.g., continued gov’t employment is very strong)  more procedure
required (e.g., gov’t employees’ w/ entitlement to continued employment must be given a pre-termination hearing)
b. The risk of an erroneous deprivation if additional procedure is not afforded; and
1) Greater risk (e.g., welfare recipients might be unable to state their claims effectively in writing, Goldberg) 
stronger claim to additional procedures
c. The government’s interest in proceeding with no more process than already afforded (most controversial factor)
1) The strongest government interests are those involving collateral consequences of delay rather than simply the cost of
the hearing (e.g., emergencies such as the discovery of poisonous or rotten food)
2. Cases
a. Determine if Due Process Procedures Are Met: Plaintiff received social security benefits; he was then notified that his
disability had ceased; he responded by letter and the agency made the final decision his benefits will cease. Distinguished
Goldberg b/c these benefits not based on financial need, the deprivation would be less than welfare, this review is based on
less information than a welfare determination, and the burden on the public outweighs the cost to the plaintiff. Mathews v.
Eldridge
b. School Dismissal for Failure to Meet Academic Standards: Due process is met where the school fully informs the
student of dissatisfaction and the danger it poses and the ultimate decision to dismiss was careful and deliberate. Board of
Curators of the University of Missouri v. Horowitz
1) Reasoning: the court thought making schools have formal hearings would be too costly, destroy the effectiveness,
and the nature of the subjective evaluation by teachers requires it not be done.
2) Take Away: notice and hearing are flexible situations and full hearings are not favored in school settings.
c. School Disciplinary Hearings & Pending Criminal Trials:
1) Right to have Attorney Present: a student is deprived of due process if he is not allowed to have a lawyer present at
a school disciplinary hearing where there is a pending criminal trial based on the same facts. Gabrilowitz v. Newman
a) Risk of self-incrimination increases the “probable value” of this additional safeguard.
d. No More than Attorney’s Presence: This court refused to allow a lawyer to do more than be present at a school
disciplinary hearing where a student (the Mountain) was given a two-year expulsion for getting in a fight outside a bar
where he signed a form in which he plead guilty and was charged with two counts of aggravated battery. Osteen v. Henley
e. Neutral Decision Maker: Combination of Prosecutorial and Judicial Functions – it did not violate due process when the
board could suspend a license at its own contested hearing on charges evolving from its own investigation. Withrow v.
Larkin
1) Facts: The medical examining board held investigative hearings prior to the “contested” hearing where they
suspended the license.