ADMINISTRATION: GOALS, POWERS.

AND
CONSTITUTIONALITY
Deshaney
1. Just because an agency is created doesn’t mean if they don’t act they have violated
ones right; agency creation doesn’t entitle you to action

INCORPORATING AGENCIES INTO THE CONSTITUTIONAL STRUCTURE OF GOVERNMENT

1. Overarching Policy on Agency’s Power
a. Agency power is essential to act promptly and expertly to develop policy, or to
conduct operational programs.
b. Checks and balances generally in our government structure, ensure basic choices
about legal authority, personnel and money are put partly in the hands of others,
an administrative agency can’t go too far astray
i. Separating powers is beneficial
1) Checks and balances
2) Prevents dictatorship; if give it all away then “can’t” give it back
c. In assessing what courts can do in admin law, don’t forget this range of control.
For many problems, nonjudicial controls may be adequate solutions, lessening the
need for intrusive or otherwise inappropriate judicial remedies
2. When Agencies can act as “Courts” (p. 42)
a. Essential Attributes of Judicial Power
i. Judicial review is sharing power
ii. Must look @ Scope of review
iii. Lax review could raise a flag
iv. Particularized area of law
b. Origins/Importance of the right (Public Rights Doctrine)
i. State law claim importance b/c Congress didn’t “create” right
ii. If congress created right doesn’t need to be determined by crts
c. Congress Intent/Purpose in delegating
i. Efficient, cost effective, timeliness
ii. Protect liberty and prohibit tyranny
**None of the factors are Dispositive
3. Agencies as “legislators”- “Intelligible Principle” Principle (p. 60)
a. Non-delegation Doctrine
i. Prohibits excessive delegation of discretionary powers by congress to FED
agencies
ii. Must legislate an intelligible principle to guide agency in its discretion
4. The End of the “Legislative Veto” (p. 76)
a. A provision in a statute by resolution to disallow a particular exercise of agency
power
b. House can act alone only in exceptions
 i. Legislative Veto of RULES more acceptable
c. House must act in conformity w/ express constitutional procedures for enacting
legislation
i. Certain checks contained in Const. Art I; e/g/ bicameral requirement,
presentment to the President, and Prez veto
d. disliked b/c wanting Congress resuming central role in PM
e. liked b/c want legislative veto as avenue for undue influence by congressional
staff and special interest
f. Leg. still can control through budgeting and oversight
5. Executive Control – Appointment and Removal (p.90)
a. Congress and Prez often competing over control of agency power
b. Who is being appointed or removed: considerations:
i. Officers of the US
1) Inferior – no tenure, limited jx., subject to removal by higher Executive
Branch offiical
2) Principle – opposite of above; violation of appointments clause
ii. Employee
1) Lesser functionaries subordinate to officers of the US
iii. Officers of Congress
1) Only have scope of what congress can do
iv. Good Cause Clause
c. Removal
i. Congress can limit prez’s removal power as long as doesn’t “impede the
prez’s ability to perform his constitutional duty”
1) To take care that the laws be faithfully executed
ii. Issue w/ IC investigating prez’s actions
d. Trend towards Pres. Centralizing RM process
6. Policy for Legislative Branch Making Agencies
a. Leg. should have broad authority to control the workings of government to ensure
its efficiency, its honesty and its conformity to the policy preferences of voters.
This power is seen in Congress’s ability to draft the statutes which are the
agency’s sole source of authority, in the power to control agency budgets and in
the ever-present power of formal and informal oversight

AGENCY DECISION MAKING – MATCHING THE

PROCESS TO THE TASK
* What decisions does an agency make * what procedures does an agency follow when making decisions *
rights of the public the participate in and influence agency decisions *
IDENTIFYING THE FUNDAMENTAL PROCESSES
1. Rulemaking-Adjudication Distinction (p.134)
a. Adjudication (Londoner) – due process of law required that P have the right to
support his allegations by argument; small number of persons who were
exceptionally affected, in each case upon individual grounds; norm application
b. Rulemaking (Bi-Metallic) – when rule of conduct applies to more than a few
people it is impracticable that everyone should have a direct voide in its adoption;
norm creation
i. Retroactive Rulemaking (Brown) – okay if congress expressly authorizes
retroactive RM
2. In Operation (p. 142)
a. Adjudicatory Excelsior Rule – order NOT binding; precedent only
b. Legislative Rule – binding b/c effects general applicable population
c. Harmless Error Rule (p 146)
i. If there is discretion that was needed but was not followed by the procedure
cannot apply the H.E.R.
CHOOSING BETWEEN RM AND ADJUDICATION
1. Policy Considerations (p. 150)
a. Favoring Rulemaking
i. Usually preferred in part b/c of the efficiency implicit in its generality, the
fairness arising from its wider opportunities for participation by people
affected and by is prospectively, the accountability obtained by its openness
and the technical accuracy which can result from its inclusiveness and
deliberateness
ii. RM okay in adjudicatory process b/c problems arise in a case which admin
agency couldn’t rzbly 4c, and must be solved despite absence of relevant
general rule (p.154, SEC v Chenery)
iii. Retroactive application okay in this case b/c balancing test of mischief is
outweighed by dangers inherent in statutory standpoint
2. Range of Agency Discretion to choose btwn the two (p. 158)
a. Whether to choose RM or adjudication is in complete discretion of agency
i. Past actions of agencies doesn’t determine the future correct way of handling
procedures
ii. Discretion in agency to handle situation best see fit to product the relevant
information necessary to mature and fair consideration of the issues
b. Judical crts challenge agency decisions to proceed by adjudication: functional ,
fairness, inconsistency
c. Storer Doctrine – is statue requires hearing agency can decide a threshold
measure those who are subject to that hearing to protect public interest
 Rulemaking Issues
Legislative R/M (Brown, Williamson)
How differ from non-legis? Binding v non-binding
Power – Existence? Scope
R/M Process – Consider:
Formal? (FECR: hostility to formal RM)
Organic Statute?
N-&-C under APA – what does this require
Exceptions to N-&-C –
Legislative rules – Procedural, Good Cause
Non-legislative – Interpretation Policy
Integrity in RM
Ex Parte Contacts Considerations
Formal Proceedings (557(d))
N-&-C (553) No Limiting
Agency Statutes; Rules
Lingering HBO issue (has more been adopted through organic statutes rules on Ex Parte contacts & Due
Process is required w/ a private right that you would need to limit ex parte contacts
Bias
THE RANGE OF PROCEDURAL FORMS
1. Diagram of RM and Adju – Formal and Informal (p. 180-182)

RULEMAKING – PROCESS FOR MAKING POLICY

Legislative Rules – issued through a quasi-legislative process and have an effect

comparable to the effect of legislation; change what operative law is
Publication/Non-legislative Rules – common characteristic in they have not been issued
through the legislative RM process; no process and very cheap
LEGISLATIVE RULES - DETERMINING THE EXISTENCE AND SCOPE OF THE AUTHORITY
1. FDA v. Brown
a. Must show that regulation is w/in “rzbly contemplation of grant of authority”
i. Congress directly prevented authority to FDA, kept power of scheme w/in
own hands
b. Must establish that a general statutory grant of RM authority is related to the
substantive issues a regulation would address
c. Dissent: read the statute expansively in light of the statute’s purpose
d. Chevron-deference stopped at stage one b/c congress directly spoke to issues to
prevent FDA power to control tabacco
THE LEGISLATIVE RM PROCESS
1. Conformity w/ terms, policies and purposes of Act, discretion in implementation w/in
agency
a. Must show that regulation is w/in “rzbly contemplation of the grant of authority”
and that related to substantive issues a regulation would address
2. Enabling Act – procedures required by statute; congress can always trump the
general, default procedures established by the APA
3. Retroactive Legislative Rules – APA says most are intended to govern future
behaviors BUT – can change the effects of past behavior; congress directly spoken
4. Formal (not favored) p. 212
a. Trigger Pulling Language (US v FL East Coast RR )
i. “on substantial evidence of record of such hearing” APA § 553 (c)
ii. Unless precise language APA formal hearing doesn’t have to apply
1) Genuine Issue of Material Fact; More wordage w/out exact trigger
language
b. Policy – more expensive, advantage to maximize opportunity to participate by
those affected
5. Informal N&C Preferred– more than APA min? (§553) (p.224)
a. Publish Notice, opportunity for comment, general statement of basis and purpose,
published in Fed. Reg.
b. Crt cannot add more process if agencies haven’t chosen to grant them
i. UNLESS - Agency styles it as RM, but when small number affected then
constitutional Due Process required
c. Policy – may be considerably quicker and cheaper; reduces to some degree the
opportunities to participate
6. Hybrid – results when a statue other than the APA is used to alter the APA
requirements – usually to require more formality than the APA
a. May reduce flexibility, presumably in aid of other values such as fairness

IMPLEMENTING NOTICE-AND-COMMENT RM
1. Initiating RM Process (p. 242)
a. General Statement Basis Purpose: What to disclose and adequacy of (Nova Scotia
gloss on APA)
i. Major issues of policy brought up during proceeding and why the agency
reacted to them as it did
1) Policy – state and identify persuasive considerations; balancing test
ii. If Based on Facts need evidence in the record
iii. When pertinent research material readily available and agency no special
expertise on precise parameters include the scientific data
iv. Make known so as to elicit comments that probe fundamentals
2. How to issue a Final Rule; when does the comment period stop (p.248)
a. Was added language rzbly anticipate from proposed rule; Logical outgrowth;
Would this be the first time to comment on matter; Threshold of Materiality
(Portland Cement)
 EXCEPTIONS AND ALTERNATIVES TO N&C
1. Legally Binding - Exceptions to N&C (p. 262)
a. Rules of agency organization, procedure, or practice
i. Is it contestable w/in the agency (is there discretion still involved with the
decision (Public Citizen p 265)
b. Good Cause/Emergency Situations (narrowly construed & reluctantly
countenanced)
i. Notice and comment would be
1) Impracticable – due and timely execution of its function would be
impeded by the notice otherwise required
2) Unnecessary
3) Contrary to public interest
2. Not Legally Binding Agency Statements – exceptions to N&C (p.271)
a. Threshold Question is this an Interpretive rules or statements of policy – yes =
exempt
b. Interpretive rule – advising public of construction of statutes and rules which it
administers
Substantive Rule – implement the statute; “force & effect of law”
c. General Statements of Policy – advising public prospectively f manner which
agency proposes to exercise discretionary power
d. Legislative Rule Test: (yes to any of these makes it leg. triggering N&C; judicial
review will require more procedure) p. 273
i. Need Rule to actually enforce
1) Intent of Congress – enforcement or confer benefits
ii. Published the rule in the Fed Reg
iii. Agency has explicitly invoked its general legislative authority
iv. Effectively amends a prior legislative rule
1) If consistent w/ prior rule then interpretive

ISSUES OF INTEGRITY IN THE RM PROCESS

1. Ex Parte Contacts and Bias (p. 286)
a. Very lax standard b/c of the openness of the entire process
b. Bias – only where there has been a clear and convincing showing that person has
an unalterable closed mind on matters critical to the disposition of the proceeding
c. Content of pressure upon secretary is designed to force him to decide upon factors
not made relevant by congress in the applicable statute
d. HBO (rare cases where RM is more like Londoner)
2. Ex Parte contacts don’t per se vitiate agency informal RM action, but only do so if it
appears from the admin record under review that they may have materially influenced
the action ultimately taken
Adjudication – Finding Process
Agency Rules
Organic Statute
APA (Fed or State as case demands)
Formal Adjudication Triggered?
Due Process clause – applied federal or state
Usually with informal adjudication
Covered Interest
Property – Old & New (Entitlement)
1 Now property see esp. Roth, Sindermann
2. But see, Town of Castle Rock – restraining order (carve out of entitlement approach)
3. Bitter with the Sweet - See Loudermill
If entitlement includes property right then any procedural limitations don’t trump DP claim “Don’t have to accept the
bitter with the sweet”
Liberty – Roth – magisterial (things in past which define
Paul v Davis (defamation in and of its self not liberty); Wis v. Constatineaux (stigma (+))

*be sure to identify the nature of the decision (adjud. or RM), be aware of the types of procedural arguments that might
be made about such a decision, and examine the specific statutory language to see whether there is an argument
available when it may not otherwise be apparent

ADJUDICATION THE PROCESS FOR INDIVIDUAL

DECISIONS

PROCEDURES REQUIRED BY STATUTE

1. Formal [v] Informal Procedures (p. 335)
a. Triggering language – “determined on the record after opportunity”
* does every statutory reference to an agency “hearing” trigger Section 554, or must the work be use in context
which suggests that a trial type, evidentiary hearing was intended? The opinions are not uniform.(Chemical Waste
Management)
i. Directly from APA §554
b. Benefits of formal procedures (Seacoast p. 336)
i. Private rights protected
ii. Congress intent
iii. Are interested parties thoughts on the issue relevant
iv. Does issue need to be litigated
v. Unless otherwise specifies, an adjudicatory hearing subject to judicial review
must be on the record
c. Matter of First Impression (City of W. Chi p. 340)
i. Absent triggering language need clear congress intent for formal adju.
ii. There are “on-the-record” proceedings w/out formal adjud.
d. Chevron Test
i. Has congress spoken directly to the issues (formal or informal)
1) Yes – must give effect to the unambiguously expressed intent
 2) Statute silent or ambiguous then is the agency’s answer based on a rzbl
rationale
3) E.g. “hearing” has many different meaning; is it important to x-exam or
more factual basis
e. Getting Around Formalized Hearing
i. Particular statutory hearing requirements don’t trigger APA §554(a)
ii. Seek flexibility w/in provisions of §§ 556 & 557
2. Formal - When §§ 556 & 557 apply (first must have the triggering language) (p.364)
a. Oral Testimony/Cross-Examination
i. “Necessary to ensure an adequate record for decision”
ii. As may be necessary for a full and fair adjud of the facts
iii. Looks similar to summary judgment
iv. APA doesn’t provide an absolute right to x-exam in “on-the-record” hearing
only for a full and fair adjud of the facts
b. Discovery
i. Effectuate some other APA procedural right (proper judicial review) of
sufficient record in the basis for agencies decision in adjud process
ii. Is it needed to support the charge or is it “relevant material”
1) Factual base [v] supported by evidence for judicial review
c. Notice
i. Obvious and Notorious
1) Can rebut if don’t think so
d. Independent Decision Maker
i. duty to explain decision
ii. Call attention to uncharged violations only if issue been fully litigated but
can’t decide issue he thinks is there but both parties don’t
iii. Cannot assume himself an expert on the agency
iv. Initial decision – reasoned decision from the presiding official; decision of the
agency
v. Recommended Decisions – needs to be adopted by agency head before official
3. Managing the Hearing – Evidence & S.O.P. (p. 403)
a. Burden of Proof
i. Preponderance of the evidence
b. Standard of Review of Agency
i. De Novo
ii. Still need to be able to exercise power that Congress gave them
c. Judicial Review
i. Arbitrary Standards or
 ii. Organic statute has another standard the court needs to review by
1) E.g. Perales is “substantial evidence”
d. Admissibility
i. Rzbly prudent persons in the conduct of their affairs would rely on the
evidence (neutral testifer, who’s submitting evidence)
ii. APA evidence standard – “the agency as a matter of policy shall provide for
the exclusion of irrelevant, immaterial, or unduly repetitious evidence”
4. Informal
a. If section 554, in conjunction w/ the agency’s statute, does NOT require the
adjudication be formal, the agency is free to proceed informally
b. No explicit provisions of the APA treat informal adjudication
c. Judicial Review might require that agency action not be arbitrary or capricious
therefore requiring some kinds of basic process
i. E.g authorities relied on, give those affected some opportunity to test accuracy
and relevance, explain how action furthers the statutory purpose

CONSTITUTIONAL SOURCES OF PROCEDURE IN ADJUDICATION

“Great Clause” – prevents government from affecting life, liberty, or property w/out
adequate procedures
Goals defining procedure by imposing these kinds of deprivations
Improve the quality of the DM process including accuracy in factfinding and
impartiality in lawapplying;
To achieve the legitimacy governmental action acquires in our system when
citizens are given an appropriate opportunity to participate in governmental
decisions which specially affect them
** Are judicial procedures the best (or the only) means for accomplishing the two
objectives?**
GO OFF Flow Chart
1. Does Due Process Apply?
a. Londener/Bi-metallic
b. State Action (fairly attributable to the state?)
c. Protected Interest (life, liberty, property)
2. If yes, How much process are you entitled to?
3. Protected Interest – Is it Triggered
PROPERTY (something we have been given, purchased, or otherwise own under the CL property)
*satisfying conditions gets you a resource, statute or implied reliance
1. Entitlement Doctrine (p. 436)
LIBERTY
1. Stigma (+) test - Defamation plus tangible interest (p. 448)
HOW MUCH PROCESS TO BE GIVEN
1. Eldridge Calculus - Education, Prison, Public Employment (tenure, “for cause”)
a. Balancing test (p.475)
INTEGRITY
1. Bias in double rolls/comb function (p. 508)
2. Due Process & APA (§554(d))
a. compares to judicial process where duel rolls; Must overcome a presumption of
honesty and integrity in those serving as adjudicators; and it must convince,
b. what happens to agencies control of statutes; agency needs to be in control at top
i. BUT APA prohibits it in adjudications (investigatory-prosecutorial functions
from adjudicative responsibilities)
3. How much Taint is too much (p. 519)
a. Could disinterested observer conclude that agency might have judged the facts b4
hearing

JUDICIAL REVIEW – REVIEWABILITY AND SCOPE

Threshold – Does this person have authority to request judicial review, and if so how much? First look to
Organic Statue
*Process is one in which the legislature draws and the court polices the boundaries of lawful agency
action*
WHEN DO YOU HAVE ACCESS TO THE CRTS AT ALL?

1. Policy to Less Intensive Judicial Review

a. Permit quicker, cheaper decisionmaking, encourage internal agency policy-
making, make agency decisions more accountable to the public, emphasizes
expertise in decisionmaking
2. Policy to More Intensive Judicial Review
a. Insure decisions according to the Rule of Law, keep agencies’ conduct consistent
w/ legislative intent, discourage overzealous agency, insure essential fairness in
procedure
PRECLUSION OF REVIEW UNDER §701
1. Statutory Preclusion (p. 577)
a. Statue expressly says no
i. BUT presumption of judicial review on certain agency actions unless statute
expressly states otherwise
b. No Law to Apply Principle – used quite guardedly
i. Usually needs to directly speak to the matter
ii. Can still have Constitutional Claim
iii. If not specific statute that addresses issue then construe statutory language
iv. Purposes of statute where applicable law can apply; promulgate organic
statute rule
2. “Committed to Agency Discretion by Law”: (p 591)
a. Had congress directly spoken to the issue
b. In someone’s complete discretion crt. “can’t” review
c. Constitutional Claims
i. Judicial review inside agency is up to them but cannot deny someone judicial
review in federal courts on constitutional claims

APA §706 – SCOPE OF REVIEW (LOOK AT FLOW CHART)

1. Issues to Consider on the Intensity of the Review
a. Legislative signal about the appropriate level of review intensity
b. Issue being reviewed seems more (or less) like a legal than factual question
i. Agency findings broad effects beyond specifics of this case may be reviewed
more intensely; “questions of law” (see below)
c. Importance of expertise in resolving key issues
d. Crt’s confidence in its own ability to deal w/ the subject matter
e. Crt’s view about the agency’s skill or objectivity
f. Crt’s view of the appropriate judicial role
g. Whether agency was active in process allowing access to information about
statute’s purpose
h. Overall quality of agency product
i. Throughness, fairness, and adequate participation
2. Question of law – e.g. “prudent” alternative route
3. Abuse of agency discretion
4. APA
a. Courts review various types of issues of law; not deference to agency
determinations on such points
5. Figure out what law means and if agency’s decision coincides
a. Threshold - Could a rzbl trier of fact conclude there were no feasible alternatives
(Overton)
i. Reasoned Decision Making – to make this finding the crt. must consider
whether the decision was based on a consideration of the relevant factors &
whether there has been a clear error of judgment
b. Apply facts to law/statute; Relevant factors
i. Congress’ grant of authority
ii. Decision w/in that frame
iii. Construed authority properly
iv. Rzbly believed his decision
6. Record for informal adjudication
 a. No APA requirement BUT doesn’t crt encourage/define “records”
i. Administrative record – whatever b4 agency when made its decision
ii. Not sufficient then Secretary must testify
1) Reduced to explanation by agency then remand back to agency for further
proceedings
iii. Post Hoc Rationalization – agency’s decision rise/fall on contemporaneous
explanations

AGENCY (IN)ACTION REVIEWABILITY (§551(13))

1. Relief sought for inaction is §706(1) = compels AA (p. 570)
2. Limits of APA upon Judicial Review of Agency Inaction
a. Final agency action
i. Action – to be compelled OR action complained of
b. Decisions Implemented by agency:
i. Rule, order, license, sanction or relief
c. Failure to Act – failure to take an agency action
i. Same characteristic of discreteness shared by preceding items
d. Limited to a discrete action (confines failure to act)
i. Discrete action by agency; all actions w/in defined agency actions are discrete
therefore F/T/A is a failure to take one of the aforementioned actions
e. Legally Required Action can be reviewed judicially (§706(1))
i. non-discretionary acts; failed to take action required to take Crt can not tell
the agency what the action must be (can tell them to complete review w/in
time frame)
1) General deficiencies in compliance lack the specificity requisite for AA
3. Policy – political issues; crt doesn’t want to be police officers; lacks focus and
coercion
SCOPE OF REVIEW
1. Tirchotomy – Fact/Law/Policy
a. Overton Park where is it = fact; prudence = law; where to put road = policy
(agency discretion)
b. Concept is very blurry → negligence
1) In order to fine neg. need to define law therefore missed ?’s of law & fact
2. Review Formulas
a. Agency Reasonable?
i. No review – statute only
ii. Arb./Capr. – residual test when no other test fits
 iii. Sub. Evid – review findings of fact, and then only when those facts are
developed on a formal record
b. Agency Right?
i. Sub. Evid. – review of findings of fact, and then only when those facts are
developed on a formal record
ii. Clear Error – substituted for sub. evd. in some state statutes where more
intensive review of facts was desired)
iii. De Novo – statute only
3. Review of Agency Fact-finding (p. 605)
a. Check statute
i. e.g. what type of review
b. APA §557(b) (lax reviews, rationality reviews; issues arise w/ disagreement w/in agency)
i. Substantial evidence – formal RM/Adjud.
1) Rzbl mind can accept/support the conclusion
2) Doesn’t need to be the one crts want
ii. Arbitrariness – informal
1) Sub. Evd. Suggest it’s tougher
2) E.g. act specifically states Sub. Evd. review where arbitrariness is
supposed to apply
iii. Commission Overturning ALJ’s decision when based on testimony
1) See what SOR the commission applied to review the case and see if
logical conclusion
a) “on-the-record”
(i) evidence that explains reasoning
(ii) where’s the line btwn explicit in the record & inferences by
agencies
2) Inferences
a) Testimonial (demeanor, truth doesn’t matter; infer someone neglect)
[v]
b) Derivative (undisputed facts, expertise, policy , evidentiary facts)
3) Credibility
a) ALJ based on testimony then give more deference; if board finds
different then ALJ detracts from substantiality of the evidence
supporting the board
4. Review of Agency’s Policymaking (p. 630)
a. §706(2)(a) – arbitrary ….
i. If unduing a statue then making “new rule” that has typical SOR
b. Arbitrariness Standard
i. The cope of review by the
 ii. Needs to explain what it’s ding and is it rzbl
iii. Rationale connection btwn facts & choice
c. Factors that made Rescission Arbitrary
i. Agency conclusion when based on substantial uncertainty
1) If initially in agencies rule or history of a concern
ii. must explain the evidence that is available, and must offer a rational
connection btwn the facts found and the choice made
iii. why did you rescind regulation
d. Relevant Factors
i. Policy, practicality, protect public, promote organic act
ii. Use statutes that show congress’s intent

REVIEW OF LAW
1. Statutory Interpretations (p. 667)
a. Leave if w/in the agency interpretation
i. Agency expertise and congressional delegation
ii. BUT what kinds of legal determinations by agencies warrant special
deference; and how much
b. Who’s in charge of interpreting the law/legal meaning
c. First, determine if law, fact or both
i. Pure question of law – basically “de novo” w/ due respect to agencies
ii. Mixed question; ultimate fact; material fact
1) Rzblity review
2) Agency expertise, delegation
d. Look at statute to find the pressure point (e.g. “equivalent” fruit)
e. Second, S.O.R to approve agencies gloss
f. Skidmore-Deference How persuasive is agencies policy
i. Legislative history, through, consistency
2. Chevron Test (p. 684)
a. Has congress spoken to the direct issue of equivalent fruit that is in the definition
of Wine?
i. Statutory Language
ii. Legislative History
iii. Policy
iv. puts agency in a better place than Skidmore
b. If not, has agency given a non-arbitrary conclusion to why it interpreted the
statute that way; agency’s answer based on a rzbl construction
i. Reasonable & permissible
 ii. Leave it to experts who were given power by congress
3. Crts review agencies interpretations of law relatively aggressively (gloss on existing
statute/regulation)
a. But crt’s reviewing agencies own policymaking choices deferentially
4. Chevron’s Reach (p 703)
a. Should I apply Chevron? (Mead)
i. Congress Delegation to generally make rules carrying the force of law
1) N&C RM, formalish Adjudication (safe-harbors)
a) Fairness, deliberation, participation, transparency
b) Not safe harbor but still applies
(i) Barnhart (p. 726)
1. interstitial (gap filling) expertise, importance, complexity,
careful consideration, long period of time
ii. Agency Invoked that power
1) Procedure agency used show factors of applicable procedure
2) Not invoked when interpretative (totality-of-the-circumstances) or policy
based
a) Long Island Care – carries special legal weight (Congress intend its
delegation to the agency of “gap-filling” authority, used N&C, directly
governs conduct of public
b. Why Chevron didn’t apply to Mead
i. Applies to one party and generally to everyone; piecemeal
c. Therefore Skidmore-deference applies
WHO GETS TO CHALLENGE THE AGENCY – STANDING
1. Constitutional Standing (p. 773)
a. AIII limits Congress’ grant of judicial power to “cases” or “controversies”
b. Is this case appropriately adjudicated through the judicial process? Min.
Requirements
i. Injury-in-Fact
1) Concrete & particularized – general grievance – concrete harm if mass tort
2) Actual or imminent – increased risk qualifies (mostly environmental)
**Ass. Standing – member standing on own, organizational purpose, injunctive
relief (Hunt test)
ii. Causation
iii. Redressability (the means of obtaining a remedy)
1) Speculative? Order make a difference b/c crt can’t tell agency what to do,
just to follow correct procedures
c. Standing is a function of where you are in procedural process
d. Procedural Rights
 i. Don’t need to meet all the normal standards for redessability & immediacy
(no EIR p. 780)
2. Statutory and Prudential Standing – Extra-constitutional Standing
(p.793)
a. Congress can get rid of all standing except constitutional
b. Citizen Standing Provision
i. Limits Congress’ power to confer rights; how could congress get around
1) Identify the injury it seeks to vindicate & relate the injury to the class of
persons entitled to bring suit
2) Limit it that if up-set can’t just sue b/c don’t like
c. APA §702 gloss
i. “arguably w/in the zone of interests where would be denied only if P’s
interests are so marginally related to or inconsistent w/ the purposes implicit
in the statue cannot be rzbly assumed Congress intended this suit
d. Organic Statutory Language
TIMING THE CHALLENGE – FINALITY & RIPENESS (p806)
1. Finality and Ripeness (p 806)
a. Ripeness Doctrine
i. Fitness of Issues Factors
1) Purely legal Questions (e.g both moved for Summary Judgment)
ii. Hardship
1) Primary conduct, painful choice, is public safety in play
b. Final Agency Action
i. Consummation, legal consequences will flow from determined
rights/obligations, unbinding rules and regulations
ii. Be weary on interpretive/policy statements